State v. Cifelli

• Decision Date: 05 April 2007
• Docket Number: No. 1 CA-CR 06-0331.,1 CA-CR 06-0331.
• Parties: STATE of Arizona, Appellee, v. Thomas A. CIFELLI, Appellant.
• Court: Arizona Court of Appeals

155 P.3d 363

214 Ariz. 524

STATE of Arizona, Appellee, v. Thomas A. CIFELLI, Appellant.

No. 1 CA-CR 06-0331.

Court of Appeals of Arizona, Division 1, Department E.

April 5, 2007.

Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel, Criminal Appeals Section and Lacey Stover Gard, Assistant Attorney General, Phoenix, Attorneys for Appellee.

Craig W. Penrod, P.C. By Daniel N. Pawuk, Tempe, Attorneys for Appellant.

OPINION

HALL, Judge.

¶ 1 Defendant was convicted of two counts of aggravated driving while under the influence of alcohol (aggravated DUI) following a bench trial. The issue on appeal is whether substantial evidence supports the trial court's determination that defendant, who failed to notify the Arizona Department of Motor Vehicles (the Department) of his change of address as statutorily required, received constructive notice of his license suspension when the Department mailed notice of the suspension to his last address of record. Because defendant's unawareness of his license suspension was attributable to his deliberate ignorance, we conclude that he should have known his driver license was suspended at the time that he was arrested for driving under the influence. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 2 The facts underlying defendant's offenses are undisputed and were stipulated to at trial. On December 9, 2004, defendant drove his vehicle in Maricopa County while under the influence of intoxicating liquor. Defendant also had an alcohol concentration of 0.151 within two hours of driving.

¶ 3 Defendant was charged with aggravated DUI because his license had been suspended effective November 22, 2004. See Ariz.Rev.Stat. (A.R.S.) § 28-1383(A)(1) (Supp.2005). Defendant waived his right to a jury and the sole issue for the trial court's determination was whether he knew or should have known that his license was suspended. See State v. Williams, 144 Ariz. 487, 488-89, 698 P.2d 732, 733-34 (1985) (holding that offense of driving while under the influence of intoxicating liquor with a suspended license is not a strict liability offense: "The State must show that the driver knew or should have known that the license has been suspended.").

¶ 4 A deputy custodian of records for the Department testified that the Department mailed a notice to defendant on November 2, 2004 informing him that his license would be suspended effective November 22, 2004. The notice was mailed to defendant's last known address of record, a post office box in Scottsdale. The deputy custodian stated that the notice was generated by the Department's computer database after the Department received an administrative per se affidavit from the arresting police officer regarding defendant's previous DUI arrest in October 2004, which alleged that a sample of blood obtained from defendant yielded a test result of 0.108 alcohol concentration. See A.R.S § 28-1385(G) (2006).¹

¶ 5 After the records custodian testified, the State rested and defense counsel moved for judgment of acquittal pursuant to Arizona Rules of Criminal Procedure (Rule) 20, which the trial court denied. Defendant then testified that he never received the Department's notices and that he believed he held a valid driver license at the time he was arrested on December 9, 2004. Defendant explained that he moved repeatedly in 2004 and that he stopped receiving forwarded mail from the Scottsdale post office box as of September 2004. In further support of this claim, defense counsel presented as an exhibit a document from the Scottsdale Air Park Post Office stating that the forwarding of defendant's mail addressed to the Scottsdale post office box ceased on September 19, 2004, one year after defendant closed the box. Defendant acknowledged, however, that he "updated" his address so he could receive "bills that come regularly," otherwise, "they're not going to continue coming to you. But, like MVD doesn't—you hardly ever correspond with them, if ever."

¶ 6 Defendant also claimed that the Department was placed on notice that he was no longer using his post office box address because he provided a residential Scottsdale address (Pine Valley Road) to the officer that arrested him for his October 2004 DUI and that address appeared on the affidavit that the officer provided the Department. See A.R.S. § 28-448(C) (2004) (permitting the Department to update an address "if a traffic citation received by the department or [other] records . . . indicate an address change after the date the address was stated in department records"). However, he admitted that he had sold the Pine Valley Road property and no longer lived there when he provided that address to the police officer.

¶ 7 Following defendant's testimony, defense counsel renewed his Rule 20 motion, arguing that defendant did not have the requisite knowledge that his license was suspended. The trial court denied his motion, stating in relevant part:

When we accept a license, we accept the responsibility to notify the Department of Motor Vehicles of how they can contact us. We accept their rules. We accept the fact that if a letter is sent to the last known address, we're responsible for that.

. . . .

I do not believe [defendant] received the letter. . . . That doesn't change his responsibility.

I did listen to the testimony. I did make some evaluations about credibility in this instance.

. . . .

But I do believe that . . . the State has proven beyond a reasonable doubt the defendant knew, or should have known, that his license was suspended.

Defendant then personally addressed the court and argued that the Department should have sent the suspension notices to his "correct address." In response, the trial court observed that the Pine Valley Road address that defendant gave the officer during his October 2004 arrest was not his correct address.²

¶ 8 The trial court found defendant guilty of both counts of aggravated DUI. At sentencing, the trial court ordered defendant to serve four months in prison, to be followed by two years of probation.

¶ 9 Defendant timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031, and -4033(A)(1) (2001).

DISCUSSION

¶ 10 Defendant argues that the trial court erred by denying his motion for judgment of acquittal. Specifically, defendant contends that the trial court's finding that he did not receive the notices of suspension mandates an acquittal.

¶ 11 We review a trial court's denial of a motion for judgment of acquittal for an abuse of discretion. State v. Hollenback, 212 Ariz. 12, 14, ¶ 3, 126 P.3d 159, 161 (App.2005). However, we review de novo a trial court's legal conclusions regarding the statutory elements of a crime. See State v. Newell, 212 Ariz. 389, 397, ¶ 27, 132 P.3d 833, 841 (2006). "[W]e view the evidence in the light most favorable to supporting the verdict and will reverse only if there is a complete absence of `substantial evidence' to support the conviction." State v. Sullivan, 187 Ariz. 599, 603, 931 P.2d 1109, 1113 (App.1996). If reasonable minds can differ on the inferences to be drawn from the evidence, a trial court has no discretion to enter a judgment of acquittal and must allow the case to proceed. See State v. Landrigan, 176 Ariz. 1, 4, 859 P.2d 111, 114 (1993).

¶ 12 Driving under the influence is a strict liability offense, but aggravated DUI based on a suspended license requires proof that the defendant drove a motor vehicle under the influence of alcohol while his license was suspended, and that he knew or should have known of the suspension. State v. Williams, 144 Ariz. at 489, 698 P.2d at 734. Pursuant to A.R.S. § 28-3318(A) (2004), the Department must provide written notice to a licensee informing him when his license is suspended. The written notice must be sent by mail to the address provided to the Department on the licensee's application, unless the licensee has notified the Department of a change in his address pursuant to § 28-448(A) (requiring licensees to "notify the department within ten days" of any change in address). § 28-3318(C). Pursuant to § 28-3318(D), "[s]ervice of the notice provided by this section is complete on mailing." Furthermore, § 28-3318(E) provides:

Compliance with the mailing provisions of this section constitutes notice of the suspension, revocation, [or] cancellation . . . for purposes of prosecution under § 28-1383[.] The state is not required to prove actual receipt of the notice or actual knowledge of the suspension, revocation, [or] cancellation[.]

¶ 13 Although the statutory scheme establishes a presumption that the licensee has received notice, and therefore has actual knowledge, of his license suspension when the Department complies with the mailing requirement, this presumption is rebuttable and a defendant may demonstrate that he did not receive the notice. See State v. Jennings, 150 Ariz. 90, 94, 722 P.2d 258, 262 (1986). "[O]nce the state proves mailing of the notice of suspension, the state no longer has the burden to prove receipt of the notice or actual knowledge of its contents. The burden then shifts to the defendant to show that he did not receive the notice." State v. Church, 175 Ariz. 104, 108, 854 P.2d 137, 141 (App.1993).

¶ 14 Here, the deputy custodian of records testified that notice of the license suspension was mailed only to the Scottsdale post office box and defendant asserted, both directly and through other evidence, that he no longer received mail from that address. Following the presentation of evidence, the trial court, in its capacity as fact-finder, specifically found that defendant did not receive the notices of his license suspension. Therefore, because defendant successfully rebutted the statutory presumption, conviction was proper only if the State proved that defendant nonetheless knew or should have known that his license was suspended.

¶ 15 In finding defendant guilty of aggravated DUI, the trial court...