State v. Sabalos
| Decision Date | 28 February 1994 |
| Docket Number | No. 2,CA-SA,2 |
| Citation | 874 P.2d 977,178 Ariz. 420 |
| Parties | The STATE of Arizona, Petitioner, v. The Honorable Charles S. SABALOS, a Judge for the Superior Court of the State of Arizona, County of Pima, Respondent, and William G. COCHRANE, Real Party In Interest. 94-0002. |
| Court | Arizona Court of Appeals |
This special action was taken from the order of the respondent judge denying the state's appeal from the judgment of acquittal entered by the city court. We have jurisdiction. A.R.S. § 12-120.21(A)(4); see State ex rel. McDougall v. Superior Court, 170 Ariz. 474, 826 P.2d 337 (App.1991). Because the state has no remedy by appeal, and because we conclude that the respondent abused his discretion, we accept jurisdiction and grant relief.
The undisputed facts are as follows. The real party in interest, Cochrane, was charged with driving under the influence of intoxicating liquor in violation of A.R.S. § 28-692(A)(1), and having an alcohol concentration of .10 percent or greater within two hours of driving in violation of A.R.S. § 28-692(A)(2). The charges were severed, and at the trial of the latter charge, the state presented the following evidence. Officer Johnson testified that after his arrest Cochrane submitted to replicate breath testing by a Tucson Police Department Intoxilyzer Model 5000, which printed "BAC" results of .172% and .168%. The magistrate took judicial notice of the Department of Health Services (DHS) regulations pertaining to determination of blood alcohol content, which set forth the criteria for devices to be used for breath testing and specifically designate the Intoxilyzer Model 5000 as an approved breath testing and collection device.
At the close of the state's case, Cochrane moved for a directed verdict of acquittal, Ariz.R.Crim.P. 20, 17 A.R.S., on the ground that the state had failed to present any evidence showing that results on the breath test printout reflected alcohol concentration as defined by A.R.S. § 28-692(O). The magistrate "provisionally" denied the motion but ruled that, if the jury found him guilty, Cochrane could reurge the matter. The magistrate further ruled that Cochrane could present a defense without waiving the issue and that, if the motion were granted, the order would be entered nunc pro tunc. The jury convicted Cochrane, and the magistrate subsequently granted his motion nunc pro tunc. The respondent subsequently "denied" the state's appeal, concluding that the magistrate's "entry of a judgment of acquittal under Rule 20 is appropriate based on the evidence submitted in the State's case and is not an appealable order."
Before addressing the merits of the Rule 20 issue, we must first determine whether the respondent correctly concluded that the magistrate's order was not appealable. If, in fact, the magistrate entered a judgment of acquittal at the close of the state's case, that order would not be appealable. Rolph v. City Court of City of Mesa, 127 Ariz. 155, 618 P.2d 1081 (1980). The state may, however, appeal a post-judgment order granting an acquittal. State ex rel. Hyder v. Superior Court, 128 Ariz. 216, 624 P.2d 1264 (1981).
The magistrate's statements as to his intentions are confusing and inconsistent. It is apparent, however, that no order was entered at the close of the state's case granting the Rule 20 motion. The issue, then, is whether the magistrate could effectively grant the motion after the verdict as a nunc pro tunc order. We believe the law to be clear that he cannot.
The purpose of a nunc pro tunc order is to make the record reflect the intention of the parties or the court at the time the record was made, not to cause an order or judgment that was never previously made or rendered to be placed upon the record.... The object of such an entry is to correct the record to make it speak the truth and not to supply judicial action.
State v. Pyeatt, 135 Ariz. 141, 143, 659 P.2d 1286, 1288 (App.1982) (citation omitted). Although the magistrate's statements are contradictory, we believe that the purpose of granting the motion nunc pro tunc was not to make the record reflect his original intention or to correct the record, but rather to "supply judicial action," id., that is, with the benefit of hindsight and additional briefing, to do what he thought he should have done originally and now is convinced is correct.
Not only does the judgment fail as a nunc pro tunc order, it is contrary to the well-settled principle that a ruling on a motion for judgment of acquittal may not be reserved. State ex rel. Dawson v. Superior Court, 112 Ariz. 123, 538 P.2d 397 (1975); State v. Blackhoop, 158 Ariz. 472, 763 P.2d 536 (App.1988), vacated on other grounds, 162 Ariz. 121, 781 P.2d 599 (1989). Because the magistrate could not enter the order nunc pro tunc, it must be treated as a post-verdict judgment of acquittal. Accordingly, the respondent's legal conclusion that the order was not appealable was incorrect and his denial of the appeal an abuse of discretion. See Grant v. Arizona Public Service Co., 133 Ariz. 434, 456, 652 P.2d 507, 529 (1982) ().
The respondent also concluded that a judgment of acquittal was "appropriate" given the state's evidence. From this we infer that the respondent agreed that the state was required to prove that the intoxilyzer printout represented alcohol concentration as defined in A.R.S. § 28-692(O), but failed to do so. A directed verdict of acquittal is appropriate only where there is no "substantial evidence" to support each element of the offense. Ariz.R.Crim.P. 20, 17 A.R.S.
Substantial evidence is more than a mere scintilla and is such proof that "reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980).
State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990). Unless there is "a complete absence of probative facts to support a conviction," a Rule 20 motion should be denied, id., and if the record reveals the presence of facts from which a reasonable jury could infer guilt beyond a reasonable doubt, then the respondent abused his discretion in affirming the magistrate's order. 1
Cochrane was charged under A.R.S. § 28-692(A)(2), which requires proof that he had an "alcohol...
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