State v. Root

(Wis.1997). trial, admitting it the defendant of- court had abused its discretion Before stipulate proof priors. that he two or more fered to prevent moved to convictions and out, majority points 26 As the offering evidence to that effect. state from refused to courts of Texas have require Id. at The trial court refused to 666. driving rationale of to drunk of- Old Chief forego presenting the state to and case, leading fenses. In the Texas Maibauer the evidence. (Texas State, App.1998, v. 968 S.W.2d 502

¶23 Supreme refd), The Court of Wisconsin pet. Appeals the Texas Court of held paral- statute that construed Wisconsin required accept that the state was not a Evi- lels Rule 403 of the Federal Rules of drunk defendant’s offer to Citing extensively Chief, dence. from Old driving reading It that convictions. said beyond holding in that the court went jury jurisdictional pre- indictment to the is a say any law, case to that evidence of the requisite under Texas so that the just the name and nature of priors any event. Id. at would learn of offense, kept elaboration, should have been from the distinguished 506-07. Without at 672. It concluded that because Id. by observing that Old the offense for Chief the defendant was with charged required which the defendant was concentration, prohibited a blood alcohol proof specific prior of a drunk of- would assume the offenses were fense, just generic felony Old jurors for under the influence if the juris- court’s Id. 507. Texas Chief. were informed that the defendant had two or apply in our dictional rationale does not convictions, suspensions, more or revoca- specific and the distinction it draws between Id. at 670. tions. particularly persua- generic crimes is not sive. explained court that The Alexander only probative priors us, value of the was judge 27 In before the trial the case status, prove that the defendant’s factor totally proposed procedure obvi- would independent wholly of the concrete events present evi- ate the need for the State to up gravamen that make pro- dence of convictions. Under It cedure, with the only purpose acquainting proof Court’s statement Old priors create with those would be to Chief unnecessary status element of an offense is against I prejudice unfair Defendant. give evidentiary depth to the state’s de- deny requested spe- the relief in this would scriptive narrative. 671. cial action. why explained Wisconsin any priors,

it excluded evidence of the while merely the name and Old excluded pointed It out that in nature of the offense. Chief, the defendant did not seek to Arizona, Appellee, STATE of conviction, any exclude reference to only name and but asked to exclude the Alexander, the offense.

nature of ROOT, Appellant. Allen Lance at 671. It also observed that Old N.W.2d 97-0737. No. CA-CR involving drinking in a unlike case Arizona, Appeals government need to driving, the had some 1, Department Division E. jurisdic- story in most complete the because possession of a firearm is not ille- tions the Dec. prior, gal. Id. Without the evidence of As Amended Dec. jurors why would not have understood April Review Granted being prosecuted. The the defendant was preju- danger of unfair court found outweighed any probative value of

dice far the trial

the evidence and concluded that

OPINION GARBARINO, Judge (the defendant) ap- Root Lance Allen aggra- for peals his conviction and sentence the influence of intoxi- vated DUI), drugs (aggravated cating liquor or felony. reverse and remand for class new trial. AND

FACTUAL PROCEDURAL HISTORY April early morning 2 In hours of 21,1996, police responded to a a Mesa officer ' the offi- report of a two-car accident. While T.B., of one speaking cer was with the driver defendant, vehicles, the the driver of vehicle, approached apolo- T.B. and Upon ques- gized to her for the accident. accident, tioning defendant about the officer detected the odor of alcohol on the defendant’s breath and observed that his slightly eyes speech was slurred and his were watery and bloodshot. The officer asked drinking. if The de- he had been just responded that he had left a fendant party he had consumed two beers. where agreed provide sample He a breath Aleo-Sensor, portable testing de- breath sample positive for the vice. The tested then con- presence of alcohol. The officer sobriety ducted various field tests before cluding probable existed to arrest cause intoxicated. the defendant for while ¶3 im- explained The officer Arizona’s defendant, Ari- plied consent law to the see (A.R.S.) zona Annotated Revised Statutes 28-691,1 requested that he con- section the defendant sent to a blood test. When consent, informed him refused to the officer Woods, Attorney By Paul General J. Grant to obtain a search warrant that he intended McMurdie, Counsel, Appeals Criminal authorizing him to draw the defendant’s Christion, At- Section and Serena Assistant transported The officer then the de- blood. General, Phoenix, Attorneys torney Ap- for jail. jail, the Mesa At the defen- fendant to pellee. sample. The provide dant a blood test, Cantor, performed approximate- resulting blood Law of David Michael P.C. Offices accident, Cantor, Mesa, after the Attorney ly two and one-half hours By David Michael (BAC) alcohol content of .08. Appellant. revealed a blood for by § amended ch. renumbered Sess. Laws 198 and 1. This section has since been § Ariz. 1997 Ariz. Sess. Laws 83-86. section 28-1321 ch. A.R.S. Atwood, previously been the defendant. See State v. The defendant (1992). 832 P.2d convicted of DUI 1991 and 1994. The the defendant information I. Evidence Prior DUI Convictions DUI, alleging two counts violations of both section 28- trial, 7 Prior to the defendant offered to 697(A)(1)2(DUI suspended, with license can- stipulate that two he had been convicted of celed, refused) revoked or and A.R.S. section prior preceding sixty in DUI offenses 28-697(A)(2) (third subsequent or in a if, admission, DUI exchange months in for his period). proceeded month The State to precluded trial court the State from mention- only, driving trial on the second count while prior during those convictions trial. Be- impaired slightest degree to the with two cause information included references to prior jury convictions, DUI convictions. The returned a prior his two the defendant also guilty subsequently verdict. The court re- in seeking preclude filed a motion limine to license, suspended reading charging voked the defendant’s im- the trial court from sentence, position placed and him on six document to the years’ probation. The court ordered the also ¶ argued 8 The defendant' that evidence jail defendant to term of four serve months un- of his two DUI offenses would be days presentenee with no incarceration fairly prejudicial amount to because would credit. nothing improper more than character evi- dence, jury and would invite the to conclude ¶ timely appealed 5 The defendant likely that he was more have been argues conviction sentence. He first and the influence on this under occasion. that the trial court abused its discretion motion, noting trial court denied the that admitting evidence of his two DUI con- prior DUI convictions were an element of the victions. He also contends that the trial charged jury and that the needed to by instructing jury court erred on certain informed of their existence. jurisdic- statutory presumptions. have We ¶ challenges now the tri- 9 VI, pursuant tion to article section 9 of the ruling. argues, he in his al court’s He did Arizona and 12- Constitution A.R.S. sections limine, that the Su- 13-4033(A) motion United States (1992), (1989), 120.21 13-4031 preme ruling Court’s in Old v. United (Supp.1997). States, 644, 519 U.S. 117 S.Ct. 136 (1997), required L.Ed.2d 574 the trial court ISSUES accept stipula- order the such a preclude any tion and to reference by denying 1. Did the trial court err agree. convictions. We preclude motion to all evidence of the DUI convictions once 10 of a conviction or Evidence more, often without much is the satisfy to their an existence order long It impetus for a to convict. has element of the offense? evidence of unrelated been the rule that support criminal acts cannot be admitted to by instructing 2. Did the trial court err being prosecuted. crime commission of the State, 66, 69, v. 136 P. See Crowell 28-692(E)3? of A.R.S. section (1913). 279, 280 general a man is “The rule is that when DISCUSSION offense, put upon trial for one he is convicted, all, by light if at evidence which 6 We view the facts verdicts, guilty of that offense sustaining shows he is most favorable alone, that, ordinary against circum- resolving all reasonable inferences section has since been renumbered as has since been renumbered as 3. This This section 28-1381(H) by § section ch. 1996 A.R.S. section 28-1383 and amended ch. §§ 298-99. Ariz. Sess. Laws 199. 1996 Ariz. Sess. Laws substantially outweighed by stances, conviction was proof guilt of his of one or score un- wholly danger its would be in his lifetime is admission of other offenses fairly prejudicial to him. See 519 U.S. at excluded.” 644. The reasoned 117 S.Ct. 368-69, 181 State, Quen Guey v. that, to convict Old Chief under U.S.C. (1919) (quoting Sharp, v. People P. jury only § to know 922(g)(1), the needed (N.Y.1887)). 427, 14 N.E. N.Y. felon and that he had he was a convicted excep acknowledge Because possession firearm. been in that evidence of tion to rule exists stipulate to the willing to Old Chief was if it criminal acts be admitted will felon, govern- that he was a convicted directly establishes an essential element presenting legitimate purpose in ment had no Begody, Romley ex rel. crime. prejudicial information about the 468, 470-71, 846-47 171 Ariz. 831 P.2d 180, 117 519 at S.Ct. conviction. See U.S. however, Here, (App.1992). the defendant prior stipulate to the two offered to an ele convictions that constitute essential Court, ¶ Supreme 14 The Wisconsin The aggravated ment of the offense of DUI. Alexander, 628, 571 v. 214 Wis.2d stipulation have satisfied defendant’s would (1997), a after 662 DUI case decided N.W.2d the an element of Chief, beyond holding in the Old Old went DUI, avoided the risk that and would have prohibit any prior mention of Chief, to guilty the find be would the defendant that The court deduced victions the on two he committed the same crime cause jurors, experiences on and com- relying their (ne prior Ariz. R. 403 occasions. See Evid. sense, if a defen- mon would conclude that cessitating competing a balance of factors to charged prohibited with a dant with prejudice caused determine whether the prior has alcohol concentration outweigh admission the evidence would its and the convictions are for offenses relevance). probative likely Alexan- drunk offenses. See ¶ government In the 12 der, at The held that 571 court N.W.2d with, among other of- defendant introducing purpose a defen- when the sole fenses, § 922(g)(1), a violation of 18 U.S.C. prove is to status dant’s convictions prohibits pos- which a convicted felon from the admits that ele- element and defendant sessing a 519 at 117 firearm. See U.S. ment, outweighs danger prejudice far previously 644. The had S.Ct. value, conclud- probative which resulting been convicted of assault in serious “virtually nil.” at ed is trial, injury. bodily Before his he moved for ¶ dissent, colleague express- In our 15 his prohibiting government an order from crossing es concern about this Court’s mentioning felony his the nature of deciding legislative and line into the arena 175-76, id. conviction. See S.Ct. 644. any the fairness of “the wisdom or even return, he In that he offered certainly recog- legislative We enactment.” felony. previously See been convicted that respect and the line of demarcation nize argued id. at 117 S.Ct. 644. He that judiciary from separates the functions of informing precise of the nature of decision, By legislature. this we those of the unfairly prior felony would conviction rewriting deleting nor neither the statute are him, prejudice jury against that must requirement that a defendant have evidence was therefore inadmissible guilty to be two convictions found Rule 403 the Federal Rules of Evidence. felony keeping with the Arizona DUI. Chiefs id. The trial court denied Old Evidence, merely trying are “to Rules of we and, objection, government over motion may “the be fairness” so that truth secure judgment order and com- introduced the proceedings justly de- [the] ascertained and for his See id. mitment conviction. R. termined.” Ariz. Evid. 102. reversed, hold- present in the ease is ing probative challenge that under Rule value justice legislative intent behind precise of Old Chiefs do nature 28-697(A)(2)4and, A.R.S. section with his same offer to admit to the time, certain make accused retains convictions. right presumed prov- innocent until Leonard, guilty.

en See State v. 151 Ariz. Statutory Presumptions II. Instruction on 7-8, (find- (App.1986) 725 P.2d 499-500 ¶ 19 The second issue whether the trial rejection error in the trial court’s court erred when it instructed the on proffered stipulation, even related to the though stipulation was to be made “out- performed results of the BAC test presence jury”). side the see But approximately two and one-half Rebollosa, 868 hours after the accident. The test revealed a P.2d (App.1993) (disagreeing trial, BAC of At .08. criminalist State’s Leonard to extent that it stands for the retroactively extrapolated the defendant’s .08 proposition any stipulation involving an driving; BAC to hours within two she element of the offense variables, depending testified certain parties may not presented jury). such as the time the defendant last consumed present 1 also alcohol, note case is a BAC of .08 measured two and one- distinguishable from both State v. Gesch half hours after the accident would have wind, (1983), placed anywhere the defendant’s BAC be- Virgo, the tween .065 and .16 at time of the acci- (App.1997). Virgo Neither Geschwind nor dent. guilt. concerns an of In admission Gesch ¶20 objection, the in- Over trial court wind, the court held that the defendant was jurors presumptions structed the concerning not entitled to a bifurcated trial they pursuant could draw from this evidence DUI conviction because the 28-692(E): to A.R.S. section conviction of constituted element felonious in amount of alcohol a defendant’s DUI, the offense See 136 Ariz. blood'gives following rise presump- the [to] 362-63, 666 P.2d at 462-63. contrast If tions: there was within two hours of the proffered the defendant’s admission in this driving percent by time of less .05 or con- case, only the Geschwind considered of in centration alcohol the defendant’s proof the order of in the trial court the blood, may presumed it the defen- feasibility a In Virgo, of bifurcated the trial. was dant not under the influence of intoxi- parties agreed “to the sub cating liquor. ... quantity stance seized was a of usable marijuana weight pounds.” with a of 35 If there was within two hours stipulation Ariz. at 924. The P.2d at .05, driving, time of more than but less only thirty-five established that there was percent by than .10 concentration of alco- marijuana; pounds of the not defendant did blood, in hol the defendant’s such fact does possessed thirty-five pounds admit that he of give to any presumption not rise that the marijuana. defendant was or not under the influ- was Although a carte blanche rule allow- intoxicating liquor. of ence the to introduce of evidence If there was within two hours of the they DUI convictions when are of elements driving percent time .10 or more the a crime would make trial less in of alcohol defendant’s concentration the complicated, it almost ensures an automatic blood, may presumed that the defen- That, believe, conviction. we was not dant was under the influence of intoxicat- legislature. Accordingly, intent we ing liquor. reverse the trial court’s denial of the defen- preclude argues dant’s motion to evidence of his The defendant that because conjunction DUI made in of section 28- preceding § 4. To un- convict DUI months. 28- section, juiy 697(A)(2). der this must find he has been DUI on convicted of at least two occasions in the 692(E) Relying accident. hours after the did not in this offered evidence, Ac- criminalist testified that error. the State’s instruction constituted reversible defendant, presumptions been be- cording to the BAC would have defendant’s of “the de- only apply when evidence exists .16 at the time of acci- tween .065 and Clearly, happened within two fendant’s alcohol concentration accident “within dent. being ... as shown hours the time time or two hours of the blood, Thus, breath or analysis physical control” of vehicle. actual defendant’s 28-692(E) § bodily other substance.” A.R.S. presented was with evidence added). words, In other the de- (emphasis during the rele- cerning the defendant’s BAC requiring interprets the statute fendant trial court vant time frame. The two-hour perform a test of a sus- the State to giving instruc- presumption did not err blood, breath, bodily pect’s or sub- jurors deciding whether tion to assist the time of stance within two hours slightest impaired to was the defendant physical or control of a vehicle. Because the degree accident occurred. when the analysis of the defendant’s blood did occur until two one-half hours after CONCLUSION accident, maintains that the defendant ¶ 24 reverse the trial court’s denial We of his within the State had no evidence BAC offer to and motion required frame and that two-hour time limine, and we remand this matter to statutory presump- regarding instruction for new trial. inappropriate and mis- trial court tions was therefore leading. disagree. GERBER, Judge, concurs. J. RUDOLPH

¶ 22 When a defendant’s BAC is driving, hours measured within two TOCI, Judge, dissenting. may proving of still meet its burden respectfully My disagree- 25 I dissent. of or the defendant had BAC 0.10 my colleagues legal ment is as well as using period by more within the two-hour Here, philosophical. legislature de- the has extrapolation retroactive or “evidence relat for fined the elements of the offenses which ing the blood alcohol content is more seri- defendant Under the 440, Kankelfritz, back.” State v. 187 Ariz. charge, ous the elements are 517, 441, (App.1996).5 Although 930 P.2d 518 convic- previous the influence with two 28-692(A)(2) section refers to a defen preceding ar- tions within months the dant’s alcohol concentration “within two majority opinion is rest. The essence the being physical hours of or in actual legislature unfairly prejudiced that the has vehicle,” the control the statute does by pri- providing that defendant’s require the alcohol concentration an element or convictions are misdemeanor during period. measured that two-hour Consequent- DUI. of the crime 441, Rather, at 930 P.2d at retroactive 518. ly, according majority, the these extrapolation relating evidence a defendant’s jury. withheld from the convictions must be back to two hours within the time BAC justify an in would be sufficient to reaching that in this It seems to me struction majority strayed has from conclusion the 28-692(E), if the actual A.R.S. section even commonly accepted what as two funda- are the measurement of BAC did not occur with appellate judging precepts mental —one hours. those two powers separation rooted in the and the pre- the of stare decisis. As to prosecution In this other in doctrine first, appellate extrapola- we as necessary sented the retroactive are constrained acknowledge line through expert judges of demarca- tion State criminalist’s testimony. separates our function from that of The that the tion that evidence indicated proposition This has corol- legislature. had a of .08 two and one-half BAC driving,” disagree the time of rather than 5. We with State v. "back to Kankelfritz driving. two hours of that evidence must relate within extent that states rule, cited, lary often that absent a Our decision Galati was foreshad- —the question, by constitutional role owed our decisions of this court in which by consistently the statutes as written our we have a stipulation elected offi- held that present- cials. It is not our as to an element of a must function determine the crime Brito, jury. legislative or ed to the any wisdom even the fairness See State v. 183 Ariz. 535, 537-38, (App.1995); 905 P.2d majority enactment. It seems me that 546-47 (Walker), Superior legislative 176 Ariz. has crossed the line and made that (App.1993); 863 P.2d Re- opinion determination. rewrites bollosa, 985; 177 Ariz. at 868 P.2d at see majority statute to accord with what also Virgo, 190 Ariz. at 947 P.2d at 927. concluding thinks is fair to defendant. persuasive. The rationale of these cases is unfairly prejudicial that the statute is to de- legislature defining has wide latitude in fendant, majority give has failed to Brito, crimes. See 905 P.2d legislature its due. legislature prescribes When 546. judi- precept, 27 As to the second our crime, prove elements the state must cial acknowledges prece- tradition role every beyond a element reasonable doubt. system justice. general dent in our As a Rebollosa, See 177 Ariz. at P.2d at principle, good policy. reasons exist for this if Even the state and the defendant important consistency pre- Most is the crime, stipulate to an element of the dictability provides that stare decisis stipulation binding is not law. In our after all case—we are an inter- Virgo, 190 Ariz. at 947 P.2d at If appeals mediate court of are constrained —we verdict does not include an element supreme to follow decisions of our court. offense, any stipulated of the facts related to here, Applying principle this outcome may proven. element not be considered by should have opinion been controlled of See id. Geschwind, supreme our by majority, relied on There, 666 P.2d clearly the court require does us to overturn Geschwind underlying stated evidence of the crime and the cases decided court. In Old legislature or conduct included as an the defendant was with violat- precluded element crime “cannot be prohibits statute that federal a convict- unfairly prejudicial.” or irrelevant Id. at possessing ed felon from a firearm. 519 U.S. Nevertheless, directly 463. 666 P.2d at at 644. had S.Ct. The defendant Geschwind, contrary majority to holds previously resulting been convicted of assault prov- that an element of the crime cannot in bodily injury. serious See id. at only purpose doing en because the of so S.Ct. prohibit 644. The defendant moved to prejudice would be to defendant. government mentioning from the exact previous nature of his conviction. He offered ¶ Except for this we have consis- previously to that he had been tently in principles followed Geschwind felony. argued informing a He victed of legislature present ag- since the enacted the precise prior nature of his gravated recently, statute. Most in DUI unfairly felony prejudice conviction would (Petersen), State v. Galati him, evidence was therefore inadmis- panel (Ct.App.1998), P.2d 1198 of this court sible under Rule of the Federal Rules of rejected reasoning by majori- applied Evidence. See id. ty here and instead In followed Geschwind. Galati, these, on similar facts to we conclud- The trial court denied his motion ed that the court in keeping government trial erred and the introduced the of order jury. judgment from DUI convictions We noted and his conviction. id. at 19.1(b), that under Rule Arizona Rules appeal, 117 S.Ct. 644. On Procedure, Criminal if the conviction Court reversed. See id. at 117 S.Ct. crime, that, alleged is an element of the a defen- Court to reasoned convict statute, dant is not entitled to a trial. needed bifurcated defendant only at felon to know that he was a convicted possession been in

and that he had 190-91, 117 S.Ct. 644. firearm. See id. In B. re JERRY willing stipulate concern- Because he was 1No. CA-JV 98-0153. felon, gov- ing his a convicted status as purpose going legitimate ernment had no Arizona, Appeals Court See id. into conviction. the details 1, Department E. Division simply does 32 Old Nov. Chief case, to here. In this convict defendant 23, 1999. Denied March Review required was aggravated DUI find, among things, that he been on at two occasions

convicted of DUI least Arizona Re- preceding months. 28-697(A)

vised Annotated section Statutes

requires specific proof prior DUI convic- convic-

tions. The existence DUI with which

tions is an element of the offense Chief, charged. was Old only of a required proof felo-

federal statute

ny conviction.

¶33 Furthermore, Chief, the in Old de- willing was fact

fendant

that he was a convicted felon—an element of with which he was Here,

U.S. 117 S.Ct. 644. willing stipulate only

was DUI kept if information from

convictions was require Old does not trial Chief Thus, accept stipulation. such a analysis the trial

even under precluding

court erred evidence convictions. directly 34 But if even Old were Chief accept point, we are not bound

decision in the face of Geschwind. Old a decision the United States Su- question. It

preme on a constitutional essentially a rules

is decision on the federal evidence, we need follow. one that Bible,

See State (1993).

P.2d Geschwind still point, authority in

controlling Arizona on it.

and we are bound to follow

¶ 35 I would affirm.

Case Details

Case Name: State v. Root

Court Name: Court of Appeals of Arizona

Date Published: Apr 14, 1999

Citation: 973 P.2d 1203

Docket Number: 1 CA-CR 97-0737

Court Abbreviation: Ariz. Ct. App.