State v. Chacon
| Decision Date | 28 May 2015 |
| Docket Number | No. 2 CA-CR 2014-0150,2 CA-CR 2014-0150 |
| Parties | THE STATE OF ARIZONA, Appellee, v. JUAN ALVARADO CHACON, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Jane L. Eikleberry, Judge
AFFIRMED
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee
By Scott A. Martin, Assistant Legal Defender, Tucson
Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Brammer1 concurred.
¶1 After a jury trial, Juan Chacon was convicted of aggravated driving with an illegal drug in his body while his license was suspended, revoked, or restricted—in violation of A.R.S. § 28-1381(A)(3)—and possession of drug paraphernalia. The trial court sentenced him to mitigated, concurrent terms of imprisonment totaling eight years. On appeal, he argues there was insufficient evidence to support his (A)(3) conviction; the court erred by denying his motion to continue and his request for a Daubert2 hearing; and his due process rights to notice of the charges against him were violated. He also contends that, if this court vacates his (A)(3) conviction, we should vacate his sentence for possession of drug paraphernalia and remand for resentencing on that offense. We affirm.
¶2 We view the facts in the light most favorable to sustaining Chacon's convictions. See State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32 (App. 2013). In February 2013, Pima County Sheriff's Deputy Joel Landry observed Chacon driving slowly in the right lane, almost hitting the right curb, and the vehicle's taillights were not working. After stopping the vehicle, Landry noticed that "the entire front driver's side was damaged and that the wheel wascompletely deflated as though it had sidewall damage, a puncture." Landry "could also see that there was vegetation, a tree branch in the hood on the driver's side of the car." Landry and another deputy, Alejandro Alcantara, both could smell an odor of intoxicants coming from Chacon. Chacon had difficulty getting out of the vehicle, slurred his speech, and swayed as he stood. Chacon stated he did not have a driver's license and did not have any identification with him.
¶3 Chacon refused to participate in field-sobriety tests and was arrested for driving under the influence of an intoxicant. During a subsequent search, Landry found a cannabis grinder in one of Chacon's pockets.3 Landry obtained a search warrant for a blood draw, which he completed with Alcantara's assistance. Estuardo Miranda, a criminalist with the Arizona Department of Public Safety (DPS), tested the sample for tetrahydrocannabinol (THC), the psychoactive component of marijuana, and cocaine. Miranda reported that he found Carboxy-Tetrahydrocannabinol (Carboxy-THC), a metabolite of THC. A grand jury indicted Chacon for aggravated driving under the influence of an intoxicant while his license was suspended, revoked, or restricted; aggravated driving with an illegal drug in his body while his license was suspended, revoked, or restricted; and possession of drug paraphernalia.4
¶4 Before trial, Chacon filed a motion to continue, arguing our supreme court's then forthcoming decision in State ex rel. Montgomery v. Harris, 234 Ariz. 343, 322 P.3d 160 (2014), may affect the charges against him and his trial should be continued until the decision was issued. Specifically, Chacon asserted, "If the ArizonaSupreme Court holds that carboxy-THC in one's system does not violate [§ 28-1381(A)(3)], that Count of the Indictment against [him] should be dismissed." At a hearing on the motion, the prosecutor argued that "there's [no] legal basis to hold up this trial." Trying to distinguish this case from Harris, the prosecutor continued:
The other thing is that what will come out at trial, I believe, is that the carboxy THC in the defendant's blood was the only drug reported officially by the criminalist, but he did have under the cutoff levels of both the active ingredient THC about one and a half nanograms and also some cocaine, which . . . may come in also.
In response, Chacon argued that "evidence of other drugs that are below the cutoff" should not be admitted at trial because "DPS didn't feel comfortable reporting those." After questioning why the conviction could not be vacated later if the case proceeded to trial and if Harris ultimately was decided in Chacon's favor, the trial court denied the motion to continue.
¶5 On the first day of trial, Chacon requested a Daubert hearing to determine "if drug amounts below the cutoff amount and therefore not published . . . in [Miranda's] report" were admissible. The state responded: The state further distinguished the drugs Miranda had found in Chacon's blood from the cutoff levels, explaining DPS uses the cutoff levels to "verify with lab certainty that the[] amounts are very exact," and the amounts are "all relative," such that the jury was free to reject the evidence.
¶6 When the trial court asked if there was a disclosure issue as to the THC and cocaine results, the prosecutor replied no and Chacon's counsel did not answer. The court denied the request for a Daubert hearing, finding it to be untimely. The court alsostated,
¶7 At trial, Miranda testified that his testing of Chacon's blood revealed the presence of Carboxy-THC, as well as THC and Benzoylecgonine (BE), a metabolite of cocaine. He explained however that the THC and BE were "[n]ot in a reportable quantity." In describing a "reportable quantity," Miranda said DPS has "protocols that indicate what is a minim[um] amount . . . or quantity of [a] specific [substance] that [they] can report." He explained that DPS uses these cutoff levels primarily because "some instruments are more sensitive than others" and they want to "keep it consistent throughout . . . the state."
¶8 At the close of the state's case, Chacon moved for a judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P. The trial court granted the motion on the charge of aggravated driving under the influence of an intoxicant but denied it as to the other two counts. The jury found Chacon guilty of the remaining counts. As to the (A)(3) conviction, the jury found Carboxy-THC, THC, and BE all were present in Chacon's body at the time of the offense. The court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
¶9 Chacon challenges the sufficiency of the evidence to support his (A)(3) conviction. We review de novo the sufficiency of the evidence to support a conviction. State v. Pena, 235 Ariz. 277, ¶ 5, 331 P.3d 412, 414 (2014). "We will reverse only if no substantial evidence supports the conviction[]." State v. Snider, 233 Ariz. 243, ¶ 4, 311 P.3d 656, 658 (App. 2013). "Substantial evidence is 'evidence that reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt.'" State v. Fimbres, 222 Ariz. 293, ¶ 4, 213 P.3d 1020, 1024 (App. 2009), quoting State v. Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d 912, 913-14 (2005).
¶10 Section 28-1381(A)(3) provides: "It is unlawful for a person to drive or be in actual physical control of a vehicle . . . [w]hile there is any drug defined in [A.R.S.] § 13-3401 or its metabolite in the person's body." The offense is aggravated if committed "while the person's driver license or privilege to drive is suspended, canceled, revoked or refused or while a restriction is placed on the person's driver license or privilege to drive." A.R.S. § 28-1383(A)(1). Among the drugs listed in § 13-3401 are marijuana, which is defined to include THC, and cocaine. See § 13-3401(4)(b); (5); (19); (20)(w), (z).
¶11 After Chacon initiated this appeal, our supreme court issued its decision in Harris. There, the defendant was charged with violating § 28-1381(A)(3) after a blood test showed the presence of Carboxy-THC. Harris, 234 Ariz. 343, ¶¶ 2-3, 322 P.3d at 160. The defendant moved to dismiss the charge, "arguing that the blood test revealed neither the presence of THC nor 'its [primary] metabolite' Hydroxy-Tetrahydrocannabinol ('Hydroxy-THC')." Id. ¶ 4. The trial court dismissed the charge, and our supreme court upheld the dismissal. Id. ¶¶ 5, 25. The court reasoned that, based on the legislature's purpose in enacting the statute, "the 'metabolite' reference in § 28-1381(A)(3) is limited to any of a proscribed substance's metabolites that are capable of causing impairment." Id. ¶¶ 23-24. The court explained, "Drivers cannot be convicted of the (A)(3) offense based merely on the presence of a non-impairing metabolite that may reflect the prior usage of marijuana." Id. ¶ 24. It concluded the defendant could not be convicted of violating § 28-1381(A)(3) because Carboxy-THC, the only metabolite found in his blood, does not cause impairment. Id. ¶ 25.
¶12 Chacon asserts that his (A)(3) conviction "cannot be based on either Carboxy-THC or BE in light of Harris, because they are both non-impairing metabolites." We agree. At...
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