State v. Roseman

• Decision Date: 25 September 2017
• Docket Number: No. 2 CA-CR 2016-0327,2 CA-CR 2016-0327
• Parties: THE STATE OF ARIZONA, Appellee, v. BENNY TYRELL ROSEMAN, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. BENNY TYRELL ROSEMAN, Appellant.

No. 2 CA-CR 2016-0327

ARIZONA COURT OF APPEALS DIVISION TWO

September 25, 2017

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NOT FOR PUBLICATION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 Pinal County

No. S1100CR201501759

The Honorable Steven J. Fuller, Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Chief Counsel, Phoenix

By Amy Pignatella Cain, Assistant Attorney General, Tucson

Counsel for Appellee

Rosemary Gordon Pánuco, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Vásquez and Judge Kelly¹ concurred.

ECKERSTROM, Chief Judge:

¶1 Benny Roseman appeals from his convictions and sentences for one count of criminal damage and one count of driving under the influence of an intoxicant ("DUI"), raising multiple claims of error. For the following reasons, we affirm.

Factual and Procedural Background

¶2 In September 2013, Officer C.C. of the Maricopa Police Department responded to a single-vehicle collision in which a sport utility vehicle knocked over a thirty-foot-tall tree. The officer encountered the driver, Roseman, and a passenger, D.M., Roseman's wife. Roseman explained that he had blacked out while driving. The officer observed the odor of alcohol coming from Roseman and, when the officer asked him whether he had anything to drink, Roseman said he had consumed "half a can of a Mexican drink." The officer also discovered an open water bottle containing vodka in an armrest cup holder. D.M. told the officer the beverage was hers and insisted Roseman had not been drinking from it. Officer C.C. arrested Roseman on suspicion of DUI. At the police station, Roseman submitted to a blood test that returned positive for the presence of tetrahydrocannabinol ("THC"), a psychoactive chemical found in marijuana.

¶3 Following trial, the jury found Roseman guilty of criminal damage and DUI. The trial court suspended the imposition of sentence and imposed a three-year term of probation. Roseman timely appealed. We have jurisdiction. A.R.S. §§ 13-4031, 13-4033.

Probable Cause

¶4 Roseman first argues that the trial court erred by denying his motion to suppress because Officer C.C. did not have probable cause to arrest him for DUI. "Whether an illegal arrest occurred is a mixed question of fact and law . . . ." State v. Boteo-Flores, 230 Ariz. 105, ¶ 11, 280 P.3d 1239, 1241 (2012), quoting State v. Blackmore, 186 Ariz. 630, 632, 925 P.2d 1347, 1349 (1996). We review factual findings for an abuse of discretion, but review Fourth Amendment determinations de novo. State v. Gilstrap, 235 Ariz. 296, ¶ 6, 332 P.3d 43, 44 (2014).

¶5 An officer has probable cause to arrest "when reasonably trustworthy information and circumstance would lead a person of reasonable caution to believe that a suspect has committed an offense." State v. Hoskins, 199 Ariz. 127, ¶ 30, 14 P.3d 997, 1007-08 (2000). In the DUI context, an officer need not show the driver was factually under the influence, "[o]nly the probability" of impairment. State v. Moran, 232 Ariz. 528, ¶ 10, 307 P.3d 95, 99 (App. 2013), quoting State v. Aleman, 210 Ariz. 232, ¶ 15, 109 P.3d 571, 576 (App. 2005) (alteration in Moran). Such probabilities "are not technical," but "are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act." Id., quoting State v. Dixon, 153 Ariz. 151, 153, 735 P.2d 761, 763 (1987).

¶6 At the hearing on the motion to suppress, Officer C.C. testified he decided to arrest Roseman based on the bad driving implied by the accident, the odor of alcohol emanating from Roseman, and his admission to consuming "half a can of a Mexican drink" in response to a question about whether he had been drinking. See State v. Peltz, 242 Ariz. 23, ¶ 35, 391 P.3d 1215, 1224 (App. 2017) (single vehicle crash, odor of intoxicating beverage, and admission of drinking support determination of probable cause for DUI). Taken together, these facts indicate a more than reasonable probability that Roseman had been driving while impaired by an intoxicant to the slightest degree. See Moran, 232 Ariz. 528, ¶ 10, 307 P.3d at 99. ¶7 Roseman points to a number of facts that weigh against a finding of intoxication, including the lack of field sobriety tests, a horizontal gaze nystagmus test, or a preliminary breath test; a lack of symptoms of intoxication such as watery eyes and slurred speech; and his explanation for the odor of alcohol. However, an officer may develop probable cause from the totality of the circumstances. See State v. Lawson, 144 Ariz. 547, 553, 698 P.2d 1266, 1272 (1985). Therefore, the fact that contradictory evidence existed is not dispositive. See State v. Crowley, 202 Ariz. 80, ¶ 26, 41 P.3d 618, 627 (App. 2002) (noting "probable cause . . . not negated by fact there may be innocent explanation"). Thus, we cannot say that the trial court erred in denying Roseman's motion to suppress.

Sufficiency of the Evidence

¶8 Roseman next contends the trial court erred by denying his motion for judgment of acquittal, made pursuant to Rule 20, Ariz. R. Crim. P., challenging the sufficiency of the evidence as to both counts. Sufficiency of the evidence is a question of law we review de novo. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. ¶ 16, quoting State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). We will not reverse a conviction if it is supported by substantial evidence, that is, evidence "reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." Id., quoting Mathers, 165 Ariz. at 67, 796 P.2d at 869. In making this determination, we consider both direct and circumstantial evidence. Id. If reasonable minds may differ, "the case must be submitted to the jury." Id. ¶ 18, quoting State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997).

Criminal Damage

¶9 Roseman first asserts that no evidence demonstrated he had acted recklessly leading up to the collision. See A.R.S. §§ 13-105(10)(c), 13-1602(A)(1). "A person commits criminal damage by . . . [r]ecklessly . . . damaging property of another person." A.R.S. § 13-1602(A)(1). "'Recklessly' means . . . a person is aware of and consciously disregards a substantial and unjustifiable risk" and "the risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." A.R.S. § 13-105(10)(c). Recklessness is ordinarily "ascertained by inference from all relevant surrounding circumstances." In re William G., 192 Ariz. 208, 213, 963 P.2d 287, 292 (App. 1997).

¶10 Roseman asserts the state produced no evidence that he had "disregarded a risk of having an accident," "that the road was hazardous," or that disregard of either risk was a gross deviation. Instead, Roseman urges he drove in, at most, a civilly negligent manner because there was no alcohol in his system and no admissible evidence could correlate the amount of THC in his system to impairment.

¶11 However, we need not decide whether driving with the level of THC found in Roseman's blood constituted recklessness. Officer C.C., based on his training, experience, and observations at the scene—including the length of the skid marks and the extensive damage to both the tree and the vehicle—testified that Roseman had been driving sixty to sixty-five miles per hour in a residential area with a posted speed limit of twenty-five miles per hour. A jury could determine that such conduct was reckless. See State v. Chekmizoff, 82 Ariz. 176, 179-80, 309 P.2d 796, 798 (1957) ("reckless driving is to be determined from all the surrounding circumstances"); Fraser v. State, 589 S.E.2d 329, 330 (Ga. Ct. App. 2003) ("speeding, unaccompanied by other traffic violations, can form the basis for a reckless driving conviction if the state presents evidence 'that a defendant was driving at an excessive rate of speed given the posted speed limit and the driving conditions'"), quoting Klaub v. State, 564 S.E.2d 471, 474 (Ga. Ct. App. 2002); Norfolk v. State, 360 P.2d 605, 609 (Wyo. 1961) (jury instruction that "mere speed" could support conviction for reckless driving, in some circumstances, not misleading).

¶12 Viewing the evidence in the light most favorable to upholding the verdict, the state produced sufficient evidence by which a rational trier of fact could have found beyond a reasonable doubt that Roseman recklessly damaged the property of another. See West, 226 Ariz. 559, ¶ 16, 250 P.3d at 1191. Thus, we cannot say that the trial court erred by denying Roseman's Rule 20 motion as to the criminal damage count and submitting the matter to the jury. See id. ¶ 18.

Impaired to the Slightest Degree

¶13 Roseman next argues the evidence did not show he was either under the influence of an intoxicating substance or that he was impaired to the slightest degree. See A.R.S. § 28-1381(A)(1). Section 28-1381(A)(1) states, "[i]t is unlawful for a person to drive . . . [w]hile under the influence of . . . any drug . . . if the person is impaired to the slightest degree." Roseman contends the state presented no evidence to establish that a blood-THC concentration of three nanograms per milliliter was sufficient to impair his driving. See State v. Gallow, 185 Ariz. 219, 221, 914 P.2d 1311, 1313 (App. 1995) (although concentration of intoxicant in blood is probative evidence, jury must still find defendant was "impaired to slightest degree"), quoting former ...