State of Arizona v. Travis Hamilton Nereim
317 P.3d 646
Ariz. Ct. App.2014Background
- In January 2012, Travis Nereim sideswiped a parked sheriff’s vehicle while driving with a young girl in the passenger seat; a deputy chased and detained him.
- Deputies observed signs of intoxication, Nereim failed multiple field sobriety tests, and a blood draw (with consent) showed BAC .346.
- Nereim was charged with multiple DUI-related counts (including aggravated DUI with a minor present and elevated BAC allegations), child abuse (endangerment), and criminal damage; several counts were tried to a jury.
- The jury convicted Nereim of child abuse, aggravated DUI with a minor present, aggravated DUI with BAC ≥ .08 with a minor present, aggravated DUI with BAC ≥ .20 with a minor present, and convicted of lesser-included DUIs on two other counts.
- On appeal Nereim challenged (1) sufficiency of evidence (Rule 20) as to the minor’s age and endangerment, (2) a jury instruction defining “endangered,” and (3) asserted double jeopardy and challenges to sentencing (including a criminal restitution order).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence regarding the minor’s age | Testimony of deputies that the girl appeared ~10–11 is sufficient | Nereim: lay testimony of age is insufficient/substantial evidence absent better proof | Court: Deputy testimony from two officers was substantial evidence to prove <15; Rule 20 denial affirmed |
| Sufficiency of evidence that the minor was endangered (child abuse) | State: driving intoxicated, collision, failed tests, high BAC constitute evidence of endangerment | Nereim: statute requires proof of "actual substantial risk of imminent death or physical injury"; mere impairment not enough | Court: Interpreting §13‑3623, "endangered" means "subject to potential harm;" evidence (collision, failed tests, BAC .346) sufficient; conviction affirmed |
| Jury instruction on "endangered" and burden | State: instruction follows statutory language; no need to require "actual substantial risk" | Nereim: requested instruction requiring proof of actual substantial risk; also argued language was confusing and lowered burden | Court: Rejected requested higher‑standard instruction as incorrect law; reviewed full Instruction No.16 and found no fundamental error |
| Double jeopardy from overlapping DUI convictions | State (ultimately conceding some overlap): separate statutes can create distinct DUI offenses, but lesser‑included convictions that duplicate greater convictions violate double jeopardy | Nereim: convictions for lesser DUIs alongside greater aggravated DUIs violate double jeopardy | Court: Vacated convictions/sentences on counts 1, 3, and 5 because they were lesser‑included or duplicative of aggravated DUI convictions (double jeopardy) |
Key Cases Cited
- State v. Olquin, 216 Ariz. 250 (App. 2007) (officer testimony about children’s ages can support aggravated DUI verdict)
- State v. May, 210 Ariz. 452 (App. 2005) (improper hearsay about a minor’s age; officer testimony insufficient where it did not establish age below statutory threshold)
- State v. Mahaney, 193 Ariz. 566 (App. 1999) (interpreting "endangered" in §13‑3623 to mean "subject to potential harm," distinct from §13‑1201 endangerment standard)
- Anderjeski v. City Court, 135 Ariz. 549 (1983) (different DUI theories—impairment vs. BAC—may be distinct offenses under statute)
- Merlina v. Jejna, 208 Ariz. 1 (App. 2004) (conviction on lesser DUI cannot stand when duplicative of greater DUI based solely on BAC thresholds)
- State v. Lopez, 231 Ariz. 561 (App. 2013) (criminal restitution order entered before sentence expiration is unauthorized; constitutes illegal sentence)