State v. Wells, 1 CA-CR 16-0224

Defendant Stetman Keith Wells was convicted by a jury of two counts of aggravated DUI (Class 4 felonies) for driving while impaired while his license was suspended. Sentence: concurrent four-month prison terms and two-year concurrent probation grants.
At trial Wells admitted he was "impaired" while driving and conceded simple DUI, but contested knowledge of his suspended license (element of aggravated DUI).
The State's expert testified that a .08 BAC is the community standard for impairment and that a .228 BAC (Wells's level) is "not a safe level consistent with driving." No contemporaneous objection was made.
Wells sought to elicit, via cross-examination of the arresting officer, that Wells had told the officer during a station interview that his license was "not suspended or revoked." The State objected as hearsay and the court sustained the objection.
Wells himself testified at trial that he told the officer he did not think his license was suspended, and his counsel conceded impairment in closing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether expert's testimony that .228 BAC is "not a safe level" constituted improper ultimate-issue testimony under Ariz. R. Evid. 704(b) and thus fundamental error	Expert impermissibly told jurors how to decide impairment element; violated Rule 704	Testimony merely stated scientific standard for impairment and did not opine on defendant's mental state constituting an element; no contemporaneous objection and no prejudice	No reversible error: testimony allowed; not shown to be opinion on the defendant's mental state and, given Wells's admissions and counsel's concession, no prejudice shown; conviction affirmed
Whether exclusion of officer's testimony recounting Wells's statement that his license "was not suspended or revoked" was an abuse of discretion (hearsay / Rule 106 / "completes the story")	Excluding the officer's recount of the interview unfairly prevented Wells from presenting exculpatory statement and completing the report used by State	Statement was hearsay; Rule 106 inapplicable because State did not offer the report into evidence; trial testimony by Wells already conveyed the substance; defendant failed to preserve Rule 106 at trial	No abuse of discretion shown; admission would not have caused prejudice given Wells's own testimony to same effect; conviction affirmed

State v. Henderson, 210 Ariz. 561 (discussing fundamental-error preservation rule for unobjected-to trial matters)
State v. James, 231 Ariz. 490 (standard for showing fundamental error requires error, fundamentality, and prejudice)
State v. Herrera, 203 Ariz. 131 (discussion of expert testimony stating defendant was "impaired to the slightest degree")
State v. Ferrero, 229 Ariz. 239 ("completes the story" concept and intrinsic evidence doctrine)
State v. Karr, 221 Ariz. 319 (viewing evidence in the light most favorable to sustaining conviction)