Opinion
No. 1 CA-CR 15-0836
12-06-2016
STATE OF ARIZONA, Appellee, v. HENRY SIMON HOLGUIN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Michael F. Valenzuela Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Lawrence Blieden Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2015-111861-001 DT
The Honorable Christopher Coury, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Lawrence Blieden
Counsel for Appellant
MEMORANDUM DECISION
Judge Lawrence F. Winthrop delivered the decision of the Court, in which Presiding Judge Kent E. Cattani and Judge Samuel E. Vederman joined. WINTHROP, Judge:
The Honorable Samuel E. Vederman, Judge of the Arizona Superior Court, has been authorized to sit in this matter pursuant to Article 6, Section 3, of the Arizona Constitution.
¶1 Henry Simon Holguin ("Appellant") appeals his convictions and sentences for unlawful flight and aggravated DUI. Appellant contends that there was insufficient evidence for the jury to convict him on either count. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Appellant was indicted for aggravated driving or actual physical control while under the influence of intoxicating liquor or drugs, a class 4 felony (Count 1); unlawful flight from a law enforcement vehicle, a class 5 felony (Count 2); and possession or use of dangerous drugs, a class 4 felony (Count 3).
The State charged Appellant with aggravated DUI because Appellant was driving on a suspended license at the time of his arrest. See Ariz. Rev. Stat. ("A.R.S.") § 28-1383(A)(1) (stating that an individual is guilty of aggravated DUI if he "[c]ommits a violation of § 28-1381 . . . while [his] driver license or privilege to drive is suspended . . . .").
Appellant was also indicted for possession of drug paraphernalia, however the trial court later dismissed that count with prejudice.
¶3 At trial, Officer David Meicke of the Mesa Police Department testified that he was conducting speed and traffic enforcement on the afternoon of March 12, 2015. He was in full uniform, on a marked black and white police motorcycle, using a handheld speed measuring device.
¶4 Officer Meicke noticed a Lincoln Town Car passing other vehicles around it, and confirmed the Town Car was travelling at a speed of 54 miles per hour in a 40 mile per hour zone. Officer Meicke began to follow the Town Car on his marked motorcycle. The Town Car made a sharp stop at a red light and then made a sharp right turn and began to accelerate. Officer Meicke accelerated to try to catch up with the Town Car.
¶5 At the next intersection, the Town Car traveled through a red light without stopping and then immediately turned right at another red light without stopping. Officer Meicke then radioed for assistance. He did not activate his lights and sirens during the pursuit because he did not feel he could safely accelerate and decelerate his motorcycle, shift gears, operate a radio, and operate lights and sirens at the speed he was traveling.
¶6 The Town Car next turned into a private business parking lot, and the driver exited the vehicle while it was still moving. The driver then turned and looked at Officer Meicke before fleeing on foot. Officer Meicke began to run after the driver, but noticed about five or six individuals jump out of the car. For safety reasons, Officer Meicke did not continue to pursue the driver, and instead radioed a description of him to other officers in the area.
¶7 Shortly thereafter, Appellant was found about 500 yards from the private business parking lot, and Officer Meicke confirmed that Appellant was the same person he saw driving the Town Car.
¶8 Officer Jamie Bernau, a drug recognition expert, testified that he was present at the location where Appellant was found. After noticing that Appellant's speech was slow and raspy, his eyes were bloodshot and watery, his face was flushed, and there was a chemical odor emitting from Appellant's person, Officer Bernau arrested him for DUI.
Appellant was handcuffed because Officer Bernau believed Appellant was a flight risk. As such, Officer Bernau was only able to perform one portion of the field sobriety tests typically performed in similar situations.
¶9 Officer Meicke then searched Appellant and found a ziploc-style bag that contained an ice-like substance later determined to be methamphetamine.
¶10 After the search, Appellant was taken to the police station, where a blood sample was obtained. Appellant's blood sample revealed the presence of methamphetamine and THC, the main psychoactive component of marijuana. At trial, the State presented the testimony of two forensic scientists, who explained the physiological and psychological effects of each drug.
Appellant's blood sample was obtained less than two hours after his arrest.
¶11 At the conclusion of the State's case, Appellant moved for a judgment of acquittal pursuant to Rule 20, arguing the State failed to present substantial evidence to warrant convictions as to the counts for aggravated DUI and unlawful flight. The trial court denied the motion. The defense presented no witnesses and Appellant did not testify.
¶12 The jury found Appellant guilty as charged, and the court imposed concurrent prison terms of six years for Count 1, three years for Count 2, and six years for Count 3.
¶13 Appellant timely appealed, and we have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
ANALYSIS
¶14 Appellant argues that there was insufficient evidence to support the jury's verdict on the unlawful flight and aggravated DUI counts.
¶15 The question of sufficiency of the evidence is subject to de novo review on appeal. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (citation omitted). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." West, 226 Ariz. at 562, ¶ 16, 250 P.3d at 1191 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).
I. Unlawful Flight
¶16 "[P]ursuant to A.R.S. § 28-622.01, the essential elements of the crime of unlawful flight are: (1) the defendant, who was driving a motor vehicle, willfully fled or attempted to elude a pursuing official law enforcement vehicle, and (2) the law enforcement vehicle was appropriately marked showing it to be an official law enforcement vehicle." State v. Martinez, 230 Ariz. 382, 384, ¶ 8, 284 P.3d 893, 895 (App. 2012). A.R.S. § 28-624(C) requires the driver of the law enforcement vehicle to use a siren "as reasonably necessary."
"A driver of a motor vehicle who willfully flees or attempts to elude a pursuing official law enforcement vehicle that is being operated in the manner described in § 28-624, subsection C is guilty of a class 5 felony. The law enforcement vehicle shall be appropriately marked to show that it is an official law enforcement vehicle." A.R.S. § 28-622.01.
¶17 Appellant contends there was insufficient evidence of unlawful flight because Officer Meicke failed to activate his siren.
¶18 This court has previously addressed similar circumstances in which it found activation of a siren was not reasonably necessary. See In re Joel R., 200 Ariz. 512, 513-14, ¶¶ 3, 8, 29 P.3d 287, 288-89 (App. 2001) (holding that activation of a siren was not necessary where there was no traffic to alert and the record supported the trial court's finding that Appellant knowingly fled from the officer). However, the issue of whether it was reasonably necessary for Officer Meicke to activate his siren, goes to the weight of the evidence and the credibility of the witnesses. Thus, it is a question for the jury. See State v. Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974) ("No rule is better established than that the credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury."). And, "as long as there is substantial supporting evidence, we will not disturb [the jury's] determination." State v. Scott, 113 Ariz. 423, 425, 555 P.2d 1117, 1119 (1976).
¶19 Here, substantial evidence supported the jury's finding that activation of the siren was not reasonably necessary because Officer Meicke was riding a motorcycle clearly marked as a police vehicle, and the officer testified that he did not feel that he could safely activate his siren during his pursuit of Appellant. See State v. Fiihr, 221 Ariz. 135, 138, ¶ 11, 211 P.3d 13, 16 (App. 2008) (noting that, "depending on the circumstance, use of a siren or other audible signal may not be necessary when pursuing a fleeing motor vehicle"); Simkins v. Pulley, 116 Ariz. 487, 491, 569 P.2d 1385, 1389 (App. 1977) (stating that a patrolman's duty to give warning by siren of his approach is not absolute and unqualified).
In Herderick v. State, this court declared that, when exceeding the speed limit, an officer "must give warning by siren of his approach." 23 Ariz. App. 111, 114, 530 P.2d 1144, 1147 (App. 1975). However, this court has since explained its statement in Herderick "was intended only as an illustration that under the statute a duty was owed to other drivers and pedestrians by the driver of an emergency vehicle, and not as an indication that the duty [to activate a siren] was absolute and unqualified . . . ." Simkins, 116 Ariz. at 491, 569 P.2d at 1389.
¶20 Further, Officer Meicke's testimony regarding Appellant's erratic driving and running away from his vehicle in the parking lot supported the jury's finding that Appellant knowingly fled from and attempted to elude a pursuing law enforcement vehicle.
¶21 Accordingly, the jury's finding that Appellant was guilty beyond a reasonable doubt of unlawful flight is supported by the evidence.
II. Aggravated DUI
¶22 Appellant next argues that the State did not present sufficient evidence of impairment to support his conviction for aggravated DUI. Again, Appellant's argument goes to the credibility of the witnesses and the weight of the evidence, and "we do not weigh the evidence; that is the function of the jury." State v. Williams, 209 Ariz. 228, 231, ¶ 6, 99 P.3d 43, 46 (App. 2004).
A.R.S. § 28-1381(A)(1) prohibits individuals from driving "[w]hile under the influence of . . . any drug . . . if the person is impaired to the slightest degree." --------
¶23 Officer Bernau noted physical signs of impairment, such as Appellant's slow, raspy speech and bloodshot eyes. Also, forensic scientists testified for the State that the drugs found in Appellant's blood sample could cause impairment. Finally, Officer Meicke's testimony regarding Appellant's erratic driving also supports a finding of impairment. In light of the testimony presented, a rational trier of fact could conclude there was sufficient evidence to support a finding of impairment. Cf. State ex rel. McDougall v. Albrecht, 168 Ariz. 128, 132, 811 P.2d 791, 795 (App. 1991) (erratic driving coupled with poor performance of field sobriety tests and physical signs of impairment constituted substantial evidence of impairment).
¶24 Accordingly, the record supports a finding of guilt beyond a reasonable doubt for aggravated DUI.
CONCLUSION
¶25 Appellant's convictions and sentences are affirmed.