State v. Mason

• Decision Date: 30 December 2021
• Docket Number: 1 CA-CR 20-0464
• Court: Court of Appeals of Arizona
• Parties: STATE OF ARIZONA, Appellee, v. DANIEL LOUIS MASON, Appellant.

STATE OF ARIZONA, Appellee,
v.
DANIEL LOUIS MASON, Appellant.

No. 1 CA-CR 20-0464

Court of Appeals of Arizona, First Division

December 30, 2021

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CR2018-116401-001 The Honorable Laura Johnson Giaquinto, Judge, Pro Tempore

Arizona Attorney General's Office, Phoenix By Eric Knobloch Counsel for Appellee

MayesTelles PLLC, Phoenix By David V. Telles Counsel for Appellant

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Judge Brian Y. Furuya delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Michael J. Brown joined.

MEMORANDUM DECISION

FURUYA, JUDGE

¶1 Daniel Louis Mason appeals his convictions and sentences for two counts of aggravated driving while under the influence of intoxicating liquor ("DUI") and resisting arrest. He argues that prosecutorial error^[1] deprived him of a fair trial and the superior court's flight instruction was improper. Mason also contends the court erred by denying his post-verdict motion for new trial. Finally, Mason claims the court erred at sentencing when it failed to engage him in a required colloquy before accepting the parties' stipulation that Mason had prior felony convictions. Finding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On April 1, 2018, Trooper Patrick Stoner responded to emergency calls describing a pickup truck "swerving all over the road and almost hitting vehicles" on a freeway in Phoenix. As Stoner drove behind the truck, he observed its driver change lanes without signaling and nearly collide with another vehicle. Stoner then activated his vehicle lights and siren to initiate a traffic stop, but the truck did not immediately pull over.

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¶3 Mason, the driver of the truck, eventually stopped on the shoulder next to a gravel embankment. During the ensuing investigation, Stoner learned that Mason's driver's license was suspended, and he noticed Mason was exhibiting physical signs of alcohol impairment. With Mason's consent, Stoner performed a horizontal gaze nystagmus test, which revealed six of six cues indicating impairment. As Stoner administered the test, another trooper arrived to assist.

¶4 Mason then refused Stoner's request to participate in additional field sobriety tests. As Stoner told Mason he was under arrest for DUI and attempted to handcuff him, Mason replied, "[N]o, I'm not," and ran down the embankment, dragging the troopers with him. Mason then tumbled to the ground, and a struggle ensued before Stoner restrained Mason.

¶5 Mason sustained minor injuries and was transported to a hospital where his blood was drawn pursuant to a search warrant. Subsequent testing and retrograde analysis revealed Mason's blood had an alcohol concentration between .190 and .203 within two hours of driving.

¶6 The State charged Mason with two counts of aggravated DUI and one count of resisting arrest. Mason was released from pretrial custody, and after a five-day trial the jury found him guilty as charged. Mason, however, failed to appear for return of the verdicts. The court therefore issued a warrant for his arrest and Mason was apprehended on the warrant three weeks later. Meanwhile, defense counsel filed a motion for new trial, which the court did not consider because it was untimely.

¶7 Based on the parties' stipulation that Mason had two prior historical felony convictions, the court imposed concurrent presumptive terms of 10 years for the aggravated DUI convictions.^[2] Mason timely appealed, and we have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

I. Prosecutorial Error

¶8 Mason argues prosecutorial error occurred four times during closing arguments. For prosecutorial error to warrant reversal where a timely objection was entered of record, a defendant must demonstrate (1)

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"error indeed occurred," and (2) "there is a 'reasonable likelihood that the error could have affected the jury's verdict, thereby denying defendant a fair trial.'" State v. Vargas, 251 Ariz. 157, 163, ¶ 9 (App. 2021) (quoting Martinez, 248 Ariz. at 469, ¶ 43). But where a defendant fails to object-or properly object-to alleged instances of prosecutorial error, we review such claims solely for fundamental error. See id. at 163, ¶ 10 (citing State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018)); see also State v. Morris, 215 Ariz. 324, 335, ¶ 47 (2007). Under fundamental error review, the defendant must first show trial error exists. Vargas, 251 Ariz. at 163-64, ¶ 10 (citing Escalante, 245 Ariz. at 142, ¶ 21). If error exists, a defendant must then show such error went to the foundation of the case, took from him a right essential to his defense, or was so egregious that he could not possibly have received a fair trial. Id. at 164, ¶ 10. Under the first two aforementioned instances, the defendant "must also separately show prejudice resulted from the error." Id. But if a defendant shows the error was so egregious that he could not have received a fair trial, he has necessarily shown prejudice and must receive a new trial. Id.

¶9 The first instance of alleged error, as objected to at trial, pertained to an essential element of the aggravated DUI offenses: Mason's knowledge at the time of the offenses that his driver's license was suspended. See A.R.S. § 28-1383(A)(1) (committing DUI while driver license is suspended constitutes aggravated DUI); State v. Cifelli, 214 Ariz. 524, 527, ¶ 12 (App. 2007). The prosecutor argued to the jury that Mason must have known about the suspension because he challenged it at an administrative hearing in late 2017. According to Mason, the evidence showed that at the administrative hearing, the hearing officer indicated that Mason's license would not be suspended; therefore, Mason contends he did not know of the suspension.^[3]

¶10 Whatever error can be attributed to the prosecutor's argument, it does not require reversal because the purported error was not such that there was a reasonable likelihood it could have affected the jury's verdict. Other evidence established Mason's knowledge of his license suspension at the time he committed the offenses, albeit for a different matter than the one considered at the administrative hearing. For example, Exhibit 6 contains a letter from the Arizona Department of Transportation dated February 27, 2018, informing Mason that his driver license was

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suspended for 90 days commencing March 19, 2018. As the jurors were instructed, they could, therefore, presume Mason knew, or reasonably should have known, of his license suspension when the April 1, 2018 DUI incident occurred. See Cifelli, 214 Ariz. at 527, ¶¶ 12-13 (discussing the presumption of notice that arises when...