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State v. Hernandez-Hernandez

Court of Appeals of Arizona, Second Division, Department A

July 16, 2013


Not for Publication Rule 111, Rules of the Supreme Court.

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20103549001 Honorable Deborah Bernini, Judge.

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and David A. Sullivan Tucson, Attorneys for Appellee.

Isabel G. Garcia, Pima County Legal Defender By Robb P. Holmes Tucson Attorneys for Appellant.


GARYE L. VÁSQUEZ, Presiding Judge.

¶1 Ramon Hernandez-Hernandez appeals from his convictions of aggravated driving under the influence (DUI) while his driver license was suspended, revoked, or restricted and aggravated DUI having committed or been convicted of two or more DUI offenses within the preceding eighty-four months. He argues the trial court erred by denying his motion for a judgment of acquittal and by precluding him from introducing his medical records at trial as a sanction for his failure to timely disclose them. Finding no error, we affirm.

¶2 We view the evidence in the light most favorable to sustaining the jury's verdicts. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). In October 2009, a Pima County Sheriffs deputy saw a car being driven by Hernandez-Hernandez emitting "sparks coming from the passenger side" due to damage to the car. The damage to the car also was causing the roadway to be gouged as Hernandez-Hernandez drove. The deputy stopped the car and noted when he spoke to Hernandez-Hernandez that he had "red, watery, bloodshot eyes" and slightly slurred speech. The deputy then contacted the Tucson Police Department (TPD) and requested that officers respond because "it was their jurisdiction."

¶3 When a responding TPD officer approached the car to speak to Hernandez- Hernandez, he had to "introduce [himself] twice . . . before [he] actually got any type of reaction." He noted that Hernandez-Hernandez seemed "very confused, dazed." The officer conducted a horizontal gaze nystagmus test and Hernandez-Hernandez exhibited six of six cues "in addition to vertical gaze nystagmus." Those cues indicate neurological dysfunction, which might be caused by alcohol or other drugs, including diazepam.

¶4 Hernandez-Hernandez told the officer that he took several medications for "back pain and for pain to his legs, " including morphine, Percocet, Neurontin, and diazepam. Analysis of Hernandez-Hernandez's blood found no alcohol but, consistent with his statement about his medications, showed the presence of diazepam, nordiazepam (a metabolite of diazepam), and morphine. The officer and a criminalist testified those medications affect the central nervous system and cause impairment including drowsiness, poor coordination, and the inability to concentrate. Hernandez-Hernandez testified he had taken the medications for many years and had not been impaired.

¶5 Hernandez-Hernandez told police that a black Jeep had struck his car at a nearby intersection earlier that evening, causing the damage. He stated that he had called police but decided to drive home when they did not respond after approximately ninety minutes. A TPD officer investigated the intersection and found in a dirt lot debris from an apparent collision between a white vehicle like Hernandez-Hernandez's and a blue vehicle, as well as a telephone pole that the officer concluded had been struck by the white vehicle. Hernandez-Hernandez claimed at trial that he had been "struck by another vehicle, " black or dark blue in color, and had been "spun out in a parking lot."

¶6 Following a two-day jury trial, Hernandez-Hernandez was convicted of the offenses described above. The trial court sentenced him to concurrent, four-month prison terms and placed him on a three-year term of probation. This appeal followed.

¶7 Hernandez-Hernandez first claims the trial court erred by denying his motion for a judgment of acquittal made pursuant to Rule 20, Ariz. R. Crim. P. A motion for judgment of acquittal shall be granted where "there is no substantial evidence to warrant a conviction." Ariz. R. Crim. P. 20(a). When a trial court denies a Rule 20 motion, the reviewing court must determine de novo "'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.'" State v. West, 226 Ariz. 559, ¶ 16, 250 P.3d 1188, 1191 (2011), quoting State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). "Substantial evidence" includes both direct and circumstantial evidence. Id. Further, "'[w]hen reasonable minds may differ on inferences drawn from the facts, the case must be submitted to the jury, and the trial judge has no discretion to enter a judgment of acquittal.'" Id. ¶ 18, quoting State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997) (alteration in West).

¶8 Relevant here, to convict Hernandez-Hernandez of aggravated DUI, the state was required to prove that he was driving or in actual physical control of a vehicle while "impaired to the slightest degree" by "the influence of . . . any drug."[1] A.R.S. §§ 28-1381(A)(1); 28-1383(A)(1), (2). Hernandez-Hernandez argues there was insufficient evidence that he was impaired by the drugs found in his blood because the "levels [of those drugs] were not quantified and the witnesses presented no testimony correlating prescription medication levels with impairment." But he cites no authority, and we find none, suggesting such testimony is required when, as here, there is ample other evidence of impairment.

¶9 As we noted above, a police officer and criminalist testified that the medications found in Hernandez-Hernandez's bloodstream could cause impairment. And Hernandez-Hernandez had several outward signs of impairment—most notably slurred speech and confusion—and displayed six out of six cues on the horizontal gaze nystagmus test. Moreover, the evidence established he recently had been involved in a motor vehicle accident, and the jury was free to reject his claim the accident had been caused by another vehicle. See State v. Lowery, 230 Ariz. 536, ¶ 6, 287 P.3d 830, 833 (App. 2012) (jury free to discredit defendant's testimony); see also State v. Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974) ("No rule is better established than that the credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury."). Finally, Hernandez-Hernandez's decision to drive a vehicle that was so damaged as to be emitting sparks and damaging the roadway, creating an obvious hazard, also supports a finding that he had been impaired. In light of this evidence, the jury readily could conclude Hernandez-Hernandez was impaired and that the drugs found in his blood caused that impairment. Cf. State ex rel. McDougall v. Albrecht, 168 Ariz. 128, 132, 811 P.2d 791, ...

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