Opinion
2 CA-CR 2023-0066
06-04-2024
The State of Arizona, Appellee, v. Alex Earl Romberger, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee. Emily Danies, Tucson Counsel for Appellant.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Gila County No. S0400CR201800200 The Honorable Timothy M. Wright, Judge.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee.
Emily Danies, Tucson Counsel for Appellant.
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vasquez and Judge Gard concurred.
MEMORANDUM DECISION
EPPICH, PRESIDING JUDGE.
¶1 Alex Romberger appeals from his convictions and sentences for aggravated driving under the influence while impaired to the slightest degree and aggravated driving under the influence with a drug in his body. He argues the trial court erred by precluding, as a sanction, evidence of his medical marijuana card and by denying his motion for judgment of acquittal on the impairment charge under Rule 20, Ariz. R. Crim. P. For the following reasons, we affirm Romberger's convictions and sentences.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury's verdicts. See State v. Ramos, 239 Ariz. 501, ¶ 2 (App. 2016). In December 2016, Romberger entered an auto parts store. The store manager, who had recognized Romberger from his previous visits to the store, observed that Romberger "was acting very odd" and that he "looked lost." He noticed Romberger would "bring something to the counter and take something back" and, at one point, threw a paint can down one of the aisles. Romberger was also "mumbling" and "fell into one of the displays."
¶3 Romberger then picked up a jug of motor oil and a roll of shop towels and attempted to pour the oil into the towel tube "like a funnel." The manager took the items away, which agitated Romberger who started yelling. The manager told Romberger that he was going to call the police and that he needed to leave. Romberger "reluctantly" followed the manager to the door and then "grabbed the door out of [the manager's] hand and . . . slammed it on [him]."
¶4 The manager called the police and followed Romberger out of the store to photograph his license plate. Romberger got into his car, looked "straight at [the manager] screaming and yelling," and reversed "[a]ggressively to the right" toward the manager. Romberger almost hit two cars and the manager had to "jump out of the way" to avoid being hit. He then "sped off" and the manager told police that they had "to take care of this quickly before he hurts somebody."
¶5 Officers located Romberger's car and initiated a traffic stop. Romberger pulled over, and without prompting, got out of his car. He began yelling and was being uncooperative. At one point, he had to lean against the hood of a car to support himself. Officers determined Romberger's license had been revoked and arrested him.
¶6 After arriving at the jail, Romberger became "very lethargic," had difficulty maintaining balance, and needed assistance to stand while being fingerprinted. He also vomited multiple times. As a result, an officer believed he had been driving under the influence. Romberger's blood was drawn and, as relevant here, it showed the presence of diazepam, phenobarbital (a derivative of barbituric acid), nordiazepam, temazepam, and tetrahydrocannabinol (THC).
¶7 Romberger was charged with aggravated assault and two counts of aggravated driving under the influence. At trial, he asserted that, apart from the marijuana, he had been involuntarily intoxicated by the drugs in his blood, which he had not been prescribed, but had been provided by his father, a retired physician.
¶8 After the four-day trial, a jury found Romberger not guilty of aggravated assault but found him guilty of both counts of aggravated driving under the influence. He moved for a new trial. The trial court denied the motion and sentenced Romberger to concurrent, mitigated terms of imprisonment totaling 3.5 years. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1), (2).
Discussion I. Preclusion of Medical Marijuana Card
¶9 Romberger first argues the trial court erred by precluding evidence of his medical marijuana card as a sanction for late disclosure. He also asserts the court erred in denying his motion for new trial on the same basis. We review both rulings for an abuse of discretion. See Ramos, 239 Ariz. 501, ¶ 7 (untimely disclosure sanction); State v. Fischer, 242 Ariz. 44, ¶ 10 (2017) (motion for new trial).
¶10 Romberger was indicted in April 2018. With his indictment he received an Arizona Department of Public Safety report showing his blood sample contained the drugs described above, including THC-the primary psychoactive component in marijuana. See State ex rel. Montgomery v. Harris, 234 Ariz. 343, n.1 (2014); see also A.R.S. § 13-3401(4), (19).
¶11 Nearly four and a half years later, Romberger disclosed his defenses to the state: lack of proof beyond a reasonable doubt, lack of intent, lack of knowledge, no mens rea, and involuntary intoxication. He did not disclose as a defense that his use was permissible under the Arizona Medical Marijuana Act (AMMA). After sixteen continuances, trial was set for December 2022.
The AMMA "broadly immunizes [registered qualifying patients] from prosecution for using medical marijuana consistent with the Act." Dobson v. McClennen, 238 Ariz. 389, ¶ 1 (2015)
¶12 On the first day of trial, Romberger's counsel stated that Romberger had a medical marijuana card at the time of his arrest. The state moved to preclude evidence of any medical card, arguing that immunity under the AMMA is an affirmative defense that was never disclosed. The trial court agreed and, as a sanction, precluded "any reference to a medical marijuana card by any witness or the potential to admit . . . a medical marijuana card, if it does exist."
¶13 On the third day of trial, Romberger disclosed his physical medical marijuana card and asked the trial court to reconsider its order precluding it. The court affirmed its prior ruling, citing the late disclosure as the "primary reason" and again noting Romberger had not disclosed the AMMA defense.
¶14 Romberger testified the following day. During cross examination, the state asked the trial court if its proposed questions regarding Romberger's marijuana use were permissible under the court's rulings. Romberger argued that if the state wanted to question him about his marijuana use, that "opens the door" to rebuttal evidence that he "wasn't doing it unlawfully." The court allowed the state's proposed questioning, but it again precluded mention of the medical card.
¶15 During the state's questioning, Romberger affirmed that he had "tested positive" for marijuana and that he had ingested marijuana "[a]t some point prior to" the blood draw. He denied taking marijuana prior to driving and stated he had not taken it at all on the day of the incident. He stated his father had not provided him with marijuana and no one forced him to take it.
¶16 Following his testimony, two jurors submitted questions to the trial court asking if Romberger had a medical marijuana card. Over Romberger's objections, the court did not ask the questions. After the jury's verdicts, Romberger filed a motion for new trial arguing the preclusion of his medical card denied him "a critical aspect of his defense." The court denied the motion.
¶17 On appeal, Romberger asserts the trial court did not properly assess the circumstances surrounding the untimely disclosure, and the court should have imposed a sanction less severe than precluding his medical card. He also maintains the state opened the door with its questioning regarding his marijuana use.
¶18 A defendant must provide written notice to the state of all defenses he intends to assert at trial "40 days after arraignment, or 10 days after the State's disclosure under Rule 15.1(b), [Ariz. R. Crim. P.,] whichever occurs first." Ariz. R. Crim. P. 15.2(b)(1), (d)(1). At that time, the defendant must also provide "a list of all documents . . . [and] other tangible objects" that he intends to use at trial. Ariz. R. Crim. P. 15.2(c)(3). If the trial court finds a disclosure violation, it "must . . . impose an appropriate sanction" unless it finds the violation was harmless or the information was disclosed immediately upon its discovery. Ariz. R. Crim. P. 15.7(b). In considering such a sanction, the court "must determine the significance of the information not timely disclosed, the violation's impact on the overall administration of the case, the sanction's impact on the party and the victim, and the stage of the proceedings when the party ultimately made the disclosure." Ariz. R. Crim P. 15.7(c).
¶19 A sanction for failing to timely disclose evidence "must be proportional to the violation and must have 'a minimal effect on the evidence and merits.'" State v. Payne, 233 Ariz. 484, ¶ 155 (2013) (quoting State v. Towery, 186 Ariz. 168, 186 (1996)). Therefore, "'[p]reclusion is rarely an appropriate sanction for a discovery violation' and should be invoked only when less stringent sanctions would not achieve the ends of justice." State v. Naranjo, 234 Ariz. 233, ¶ 30 (2014) (citation omitted) (quoting State v. Delgado, 174 Ariz. 252, 257 (App. 1993)). But "when a party engages in 'willful misconduct, such as an unexplained failure to do what the rules require,'" preclusion may be proper. Id. ¶ 34 (quoting State v. Killean, 185 Ariz. 270, 271 (1996)).
¶20 Contrary to his assertion, Romberger's late disclosure of his medical card and his asserted legal use of marijuana under the AMMA could reasonably be construed as "willful misconduct." See id. ¶ 35 (willful misconduct when failure to locate evidence "did not stem from investigative difficulties or a last-minute oversight, but rather from a pervasive lack of diligence stretching over a four-year period"); Killean, 185 Ariz. at 271 (if willful misconduct is evidenced by the record, preclusion of evidence is proper). Romberger was indicted nearly four and a half years before he disclosed his defenses. The indictment alleged, in part, that Romberger drove a vehicle "while there was any drug as defined in § 13-3401 or its metabolite in his body" and being impaired to the slightest degree by "any drug." See A.R.S. § 28-1381(A)(1), (3). With his indictment, Romberger received the Department of Public Safety report indicating he had THC in his body at the time of the charged offenses. See § 13-3401(4), (19); Dobson v. McClennen, 238 Ariz. 389, ¶ 2 (2015) ("Arizona's laws generally make it a crime for a person to drive with any amount of certain drugs, including marijuana or its impairing metabolite, in the person's body."). At that point, the relevance of his medical card should have been apparent. See Dobson, 238 Ariz. 389, ¶ 2 (AMMA does not immunize prosecution, but "affords an affirmative defense if the cardholder shows that the marijuana or its metabolite was in a concentration insufficient to cause impairment"); A.R.S. § 36-2811 (creating rebuttable presumption that qualifying patient is engaged in medical use of marijuana); A.R.S. § 36-2802(D) (qualifying patient not considered under influence of marijuana solely because of presence of metabolites that "appear in insufficient concentration to cause impairment"). Yet, Romberger's medical card was disclosed on the third day of a four-day jury trial, without explanation, nearly three months after he had disclosed his defenses.
¶21 The trial court's rulings demonstrate that it considered the significance of the medical card, the late disclosure's impact on the overall case-including the prejudice to the state in needing to rebut an affirmative defense, and the late stage of the proceedings when the disclosure was made. See Ariz. R. Crim P. 15.7(c); Ramos, 239 Ariz. 501, ¶ 13. Romberger proposes a continuance as an available "less stringent sanction[]," Naranjo, 234 Ariz. 233, ¶ 30, but did not request this as a remedy for the disclosure violation until his motion for new trial, see State v. Davis, 226 Ariz. 97, ¶ 12 (App. 2010) (issue first raised in motion for new trial not preserved for appeal). In any event, Romberger's trial had already been continued sixteen times and his request for a continuance, on other bases, had been denied the week before trial began. He argues a continuance was nevertheless available as evidenced by the court's grant of the state's requested continuance on the second day of trial. That request, although eventually withdrawn, was granted because the state sought to file a special action from the court's decision to allow testimony from one of Romberger's witnesses who the state alleged had not been properly disclosed. In other words, that continuance was intended to provide the state time to challenge an alleged disclosure violation by defense, whereas, had Romberger requested a continuance as he now proposes on appeal, the grant of it would have been for the defense's benefit as a result of its own disclosure violation. See Naranjo, 234 Ariz. 233, ¶ 30 (preclusion appropriate if less stringent sanction "would not achieve the ends of justice"). We cannot say the court, in assessing the circumstances surrounding the untimely disclosure, abused its discretion.
¶22 Romberger also argues the trial court should have allowed his medical card into evidence after the state "opened the door" by questioning him about his marijuana use. If a party "injects improper or irrelevant evidence . . . the 'door is open.'" State v. Leon, 190 Ariz. 159, 163 (1997) (quoting Pool v. Superior Court, 139 Ariz. 98, 103 (1984)). As a result, "the other party may have a right to retaliate by responding with comments or evidence on the same subject." Id. (quoting Pool, 139 Ariz. at 103). It is within the trial court's discretion whether to allow a party to respond in-kind. See State v. Roberts, 144 Ariz. 572, 575 (App. 1985).
¶23 Much of the state's questioning of Romberger as to his marijuana use was about the voluntariness of that use, which was highly relevant and proper given his involuntary intoxication defense. Romberger asserts on appeal that he was not raising an involuntary intoxication defense as to marijuana, but that did not become apparent until his testimony elicited by the state. Moreover, the state asked for, and received, the trial court's permission to ensure it was not injecting improper evidence. Romberger has not shown that the court erred in precluding the medical card as a sanction or by denying his motion for new trial on the same basis.
II. Denial of Rule 20 Motion
¶24 Romberger also argues the trial court erred by denying his motion for judgment of acquittal pursuant to Rule 20 on the charge of aggravated driving under the influence while impaired. He asserts the state failed to prove that his "driving was impaired to the slightest degree." We review the denial of a Rule 20 motion de novo. State v. West, 226 Ariz. 559, ¶ 15 (2011).
¶25 After the state presented its evidence, Romberger moved for a judgment of acquittal on all counts. Specifically as to aggravated driving under the influence while impaired, Romberger made no specific argument beyond submitting to the trial court's assessment of the evidence. The court denied the motion.
¶26 In reviewing a Rule 20 motion "the controlling question is solely whether the record contains 'substantial evidence'" to sustain a conviction. Id. ¶ 14 (quoting Ariz. R. Crim. P. 20(a)(1)). Substantial evidence "is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." Id. ¶ 16 (quoting State v. Mathers, 165 Ariz. 64, 67 (1990)). We consider direct and circumstantial evidence viewed in the light most favorable to sustaining the jury's verdict. Id. If "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," we will not reverse the denial of a Rule 20 motion. Id. (quoting Mathers, 165 Ariz. at 66). As relevant here, it is unlawful for a person to drive while under the influence of any drug or combination of drugs "if the person is impaired to the slightest degree." § 28-1381(A)(1) (driving under the influence); see also A.R.S. § 28-1383(A)(1) (aggravated driving under the influence includes violation of § 28-1381(A)(1) while driving on suspended, canceled, revoked, or refused license).
¶27 Romberger primarily argues the evidence did not show his driving was impaired to the slightest degree. But § 28-1381(A)(1) does not require proof that Romberger's "physical ability to drive was impaired." State v. Miller, 226 Ariz. 190, ¶¶ 9-10 (App. 2011) (state need not produce evidence of "bad driving" for driving under the influence conviction). Rather the evidence must prove that "the person is impaired to the slightest degree." § 28-1381(A)(1) (emphasis added); see also Miller, 226 Ariz. 190, ¶ 10 (proof of impairment of person's physical ability to drive is not required because person could be impaired in judgment).
¶28 To the extent Romberger challenges his impairment while driving, there is substantial evidence of that element. Romberger points to evidence he argues shows he was not impaired. He asserts he "maneuvered a tight parking lot," evidenced by the fact that he did not hit anything. He also contends "he pulled over immediately and safely"- highlighting a responding officer's testimony that during the traffic stop he did not observe anything out of the ordinary aside from Romberger immediately exiting the vehicle. He emphasizes that officers declined to perform field sobriety tests.
¶29 But, as explained above, the evidence also shows that Romberger was behaving "oddly" in the store. Multiple employees who had interacted with him on prior occasions described that this was not Romberger's typical behavior. This behavior included, but was not limited to, stumbling into a display, throwing a paint can down an aisle, pouring motor oil onto the floor, yelling, and slamming the door on the manager.
¶30 Romberger then immediately entered his car and almost hit two cars and the manager in the parking lot as he was leaving. When Romberger was pulled over, he was "irate," noncompliant, and needed to lean against the hood of a car to support himself. Although the responding officer testified that he did not observe unsafe driving behaviors, he also testified that he was not focused on Romberger's driving or even in a position to observe it much. He further explained that they did not perform field sobriety tests because Romberger's behavior required him to be "detained immediately for officer safety," and that field sobriety tests require an individual to stand unassisted, which he felt Romberger could not do.
¶31 Once transported to the jail, Romberger was "very lethargic," had difficulty balancing, required support while being fingerprinted, and vomited multiple times. Romberger himself testified that after taking, from his father, "a couple of pills" and an unknown amount of liquid "Mylanta," which he later learned was mixed with phenobarbital, he began to feel "strange"-becoming confused, forgetful, and disoriented. See State v. Sahagun-Llamas, 248 Ariz. 120, ¶ 23 (App. 2020) (defense evidence relevant to sufficiency of the evidence challenge). He described that he felt like he was "sleepwalking" and "found [him]self wandering around [the store]" and "couldn't remember how [he] got there." But after being confronted at the store, he got into his car and left quickly. Although he stated he did not feel his ability to drive was impaired, he described that he was "very confused" while driving.
The evidence shows that Romberger was diagnosed with "cyclic vomiting," which would cause "vomiting events" resulting in emergency room visits, including an occurrence the day before the incident. Romberger explained that his vomiting at the jail was a result of this condition. However, Romberger's physician explained that the drugs Romberger had taken could have caused the vomiting. Because we view the evidence in the light most favorable to sustaining the jury's verdict, West, 226 Ariz. 559, ¶ 16, we view Romberger's vomiting in the jail as indicative of impairment.
¶32 To the extent the evidence could be viewed as conflicting, that does not necessarily make it insufficient. See State v. Williams, 209 Ariz. 228, ¶ 6 (App. 2004) (conflicting evidence goes to weight and credibility which is for the jury). The evidence here was adequate and sufficient for reasonable persons to conclude beyond a reasonable doubt that Romberger was "impaired to the slightest degree" as required by § 28-1381(A)(1). See West, 226 Ariz. 559, ¶¶ 14, 16. Therefore, he has not demonstrated the trial court erred in denying his Rule 20 motion.
Disposition
¶33 For the foregoing reasons, we affirm Romberger's convictions and sentences.