State v. Cooney

• Decision Date: 08 November 2013
• Docket Number: No. 2 CA–CR 2012–0061.,2 CA–CR 2012–0061.
• Citation: 673 Ariz. Adv. Rep. 4,233 Ariz. 335,312 P.3d 134
• Parties: The STATE of Arizona, Appellee, v. Guillermo E. COONEY, Appellant.
• Court: Arizona Court of Appeals

233 Ariz. 335

312 P.3d 134

673 Ariz. Adv. Rep. 4

The STATE of Arizona, Appellee,

v.Guillermo E. COONEY, Appellant.

No. 2 CA–CR 2012–0061.

Court of Appeals of Arizona, Division 2.

Nov. 8, 2013.

Thomas C. Horne, Arizona Attorney General by Joseph T. Maziarz, Section Chief Counsel, Phoenix, and Alan L. Amann, Assistant Attorney General, Tucson, Counsel for Appellee.

Isabel G. Garcia, Pima County Legal Defender by Scott A. Martin, Assistant Legal Defender, Tucson, Counsel for Appellant.

OPINION

ECKERSTROM, Judge.

¶ 1 After a jury trial, appellant Guillermo Cooney was convicted of four counts of aggravated driving under the influence of an intoxicant (DUI). Cooney now appeals, claiming evidence of time spent incarcerated was improperly admitted, the use of his two prior DUI convictions as elements in his current DUI case violated his right to protection from double jeopardy, and the trial court erred in giving the Portillo instruction on reasonable doubt. For the following reasons, we affirm Cooney's convictions and sentences.

Factual and Procedural Background

¶ 2 In November 2009, Cooney was stopped by an officer of the Marana Police Department for speeding. During the traffic stop, the officer noticed “the odor of intoxicants coming from the vehicle.” When the officer ran a records check, he discovered that Cooney's license was suspended. The officer then conducted a horizontal gaze nystagmus test on Cooney and observed six out of six cues that may indicate intoxication. Cooney was arrested and taken to a police substation for a blood draw, which showed a blood alcohol concentration (BAC) of .101.

¶ 3 As noted above, Cooney was charged with and convicted of four counts of aggravated DUI, specifically: DUI with a suspended license, A.R.S. §§ 28–1381(A)(1), 28–1383(A)(1),¹ driving with a BAC at or above .08 with a suspended license, §§ 28–1381(A)(2), 28–1383(A)(1), DUI with two prior DUI convictions within eighty-four months, §§ 28–1381(A)(1), 28–1383(A)(2), and driving with a BAC at or above .08 with two prior DUI convictions within eighty-four months, §§ 28–1381(A)(2), 28–1383(A)(2). Cooney was sentenced to four enhanced, concurrent, presumptive prison terms of ten years. This appeal followed.

Jurisdiction

¶ 4 The state initially asserts that we lack jurisdiction to hear this matter because the defendant's notice of appeal was untimely. Cooney's notice of appeal was filed on March 6, 2012. Although this was more than twenty days past oral pronouncement of sentence, which occurred on February 13, 2012, it was within twenty days of the filing of the minute entry, which occurred on February 15, 2012. Rule 31.3, Ariz. R.Crim. P., provides that the notice of appeal must be filed “within 20 days after the entry of judgment and sentence.” This court has recently held that “the timeliness of a criminal defendant's appeal may be measured from the date when the minute entry containing the judgment and sentence was filed.” State v. Whitman, 232 Ariz. 60, ¶ 23, 301 P.3d 226, 232 (App.2013). We find Cooney's notice of appeal was timely filed, and we therefore have jurisdiction pursuant to A.R.S. §§ 12–120.21 and 13–4033.

Evidence of Previous Incarceration

¶ 5 Cooney argues that admission over his objection of evidence regarding the time he spent incarcerated violated Rule 403, Ariz. R. Evid., because it was unduly prejudicial. He further asserts that if § 28–1383 compels admission of this evidence, it constitutes an impermissible usurpation of the Arizona Supreme Court's rulemaking authority by the legislature. We find his argument unpersuasive and hold that evidence of the time he spent incarcerated did not violate Rule 403.

¶ 6 “The admission of evidence is within the trial court's discretion and will not be disturbed absent an abuse of discretion.” State v. Davolt, 207 Ariz. 191, ¶ 60, 84 P.3d 456, 473 (2004). In State v. Geschwind, 136 Ariz. 360, 362, 666 P.2d 460, 462 (1983), our supreme court held that, based on Rule 19.1(b), Ariz. R.Crim. P., a defendant was not entitled to a bifurcated trial on the issue of whether he had a prior DUI conviction because the prior conviction was an element of the charged offense that had to be presented to the jury for a determination of guilt. In State ex rel. Romley v. Galati, 195 Ariz. 9, ¶ 16, 985 P.2d 494, 497 (1999), our supreme court confirmed that this holding was not affected by the United States Supreme Court's ruling in Old Chief v. United States, 519 U.S. 172, 174–75, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), because in Old Chief, “the element at issue was the existence of any prior felony conviction; ... [t]o convict [defendants] of aggravated DUI, however, the State needed to establish they ... sustained two prior DUI convictions within [the statutory time period].” Galati, 195 Ariz. 9, ¶ 15, 985 P.2d at 497.

¶ 7 Cooney attempts to distinguish this situation from Geschwind and Galati by the fact that “Rule 19.1(b) does not contain an express exception for when ‘time spent incarcerated’ is part of an element of the charged offense.” We do not find this to be a meaningful distinction. The element of aggravated DUI under § 28–1383(A)(2) is not simply having two prior DUI convictions; it is having two prior DUI convictions for acts committed within a period of eighty-four months of the present offense. When calculating the eighty-four-month period, time spent incarcerated is excluded from the determination. § 28–1383(B). The state is therefore required to prove the fact of the conviction and that it fell within the time limit, excluding any time the defendant spent incarcerated. See State v. Moran, 232 Ariz. 528, ¶ 15, 307 P.3d 95, 100 (App.2013) (recognizing “[p]rior qualifying convictions within the statutory timeframe” as elements of offense). If the court were required to hold a bifurcated trial on the issue of time spent incarcerated, this would essentially be a separate trial on the issue of whether the two prior convictions fell within the statutory time period. Because this is an element of the offense, such a bifurcated trial would be a violation of Rule 19.1(b) and our supreme court's holdings in Geschwind and Galati.

¶ 8 Although we are mindful of the highly prejudicial nature of evidence of a defendant's past incarceration, Rule 403 requires that a trial court balance the probative value of proffered evidence against its prejudicialnature, and the rule compels exclusion only if the danger of unfair prejudice substantially outweighs the probative value. Here, where the state was required to prove that Cooney's two prior DUI convictions occurred within the statutory time limit, and as part of that proof, needed to show the time Cooney spent incarcerated, the evidence of Cooney's incarceration was essential to prove an element of the crime. See§ 28–1383(B). Therefore, the probative value of the evidence was extremely high. Noting the danger of prejudice to Cooney, the trial court ordered the record of incarceration to be redacted to omit the underlying offense and other irrelevant information. The court also instructed the jury that it was not to consider the evidence for any purpose other than “deciding whether the State has proved to you beyond a reasonable doubt that there were two prior DUI convictions within the 84 months, excluding time incarcerated, preceding this offense.” We presume jurors follow a court's instructions. State v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006). Given the high probative value of the evidence, and the court's efforts to limit the prejudice to Cooney, we conclude the court did not abuse its discretion in not precluding the evidence under Rule 403.²

¶ 9 Cooney claims that allowing this evidence because it is required to prove an element of a crime when it would otherwise be forbidden by the rules of evidence constitutes an impermissible usurpation of the Arizona Supreme Court's rulemaking power by the legislature. Cooney did not raise this novel argument in the trial court,³ and he has therefore forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19–20, 115 P.3d 601, 607 (2005). Because Cooney does not argue on appeal that this constituted fundamental error, and we find no error that can be characterized as such, we do not consider this issue. See State v. Moreno–Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App.2008) (noting fundamental error argument waived if not asserted); State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App.2007) ( “Although we do not search the record for fundamental error, we will not ignore it when we find it.”).

Double Jeopardy

¶ 10 Cooney next asserts that by using his two prior DUI convictions as elements of aggravated DUI, the state violated his right to protection from double jeopardy under the United States and Arizona Constitutions because he has already been punished for the prior DUIs. We conclude that no double jeopardy violation occurred.

¶ 11 We review de novo a question of double jeopardy. State v. Siddle, 202 Ariz. 512, ¶ 7, 47 P.3d 1150, 1153 (App.2002). Although Cooney did not raise this objection in the trial court, and our review is therefore limited to fundamental, prejudicial error, see Henderson, 210 Ariz. 561, ¶¶ 19–20, 115 P.3d at 607, a violation of double jeopardy, if found, constitutes fundamental error, State v. Price, 218 Ariz. 311, ¶ 4, 183 P.3d 1279, 1281 (App.2008).

¶ 12 Cooney essentially contends his two predicate DUI convictions are lesser-included offenses of his current aggravated DUI offense under § 28–1383(A)(2). Cooney argues that because prior convictions are included as elements of the offense, rather than aggravating factors for sentencing, the statute effectively punishes him twice for his past offenses. “To constitute a lesser-included offense, the offense must be composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed...