Court of Appeals of Arizona, Second Division, Department B
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20100471001 Honorable Terry Chandler, Judge Honorable John S. Leonardo, Judge
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Amy Pignatella Cain Tucson Attorneys for Appellee.
Isabel G. Garcia, Pima County Legal Defender By Robb P. Holmes Tucson Attorneys for Appellant.
PETER J. ECKERSTROM, Judge.
¶1Following a jury trial, appellant William Moran was convicted of four counts of aggravated driving under the influence of an intoxicant (DUI). The trial court sentenced him to concurrent terms of four months' incarceration, pursuant to A.R.S. § 28-1383(D),  followed by concurrent five-year terms of probation. On appeal, Moran challenges the legality of his traffic stop and subsequent arrest. He also contends that his out-of-state DUI convictions cannot support his two aggravated DUI convictions under § 28-1383(A)(2). We agree with the latter point and vacate the two convictions and dispositions under that subsection, but we affirm the two remaining convictions and dispositions under § 28-1383(A)(1). We set forth the facts below as they relate to each issue. Motion to Suppress
¶2Moran first contends the trial court erred in finding reasonable suspicion for his traffic stop and probable cause for his arrest. Although he raised these issues in a pretrial "motion to dismiss" the charges against him, Moran sought to suppress the evidence resulting from his stop and arrest pursuant to Rule 16.2, Ariz. R. Crim. P. On appeal, we therefore characterize the motion as one to suppress. "When reviewing a suppression order entered after a hearing, we consider only the evidence presented at the hearing, which we view in the light most favorable to upholding the trial court's order." State v. Carlson, 228 Ariz. 343, ¶ 2, 266 P.3d 369, 370 (App. 2011).
¶3On April 9, 2009, Oro Valley Police Officer Joe Sanchez stopped Moran's vehicle after visually estimating Moran was driving fifty miles per hour where the posted speed limit was thirty-five. Sanchez testified his department had trained him to accurately estimate a vehicle's speed within five miles per hour. In denying the motion to suppress, the trial court deferred to Sanchez's training and found Moran's excessive speed provided justification for the stop.
¶4A police officer need only have reasonable suspicion that a person is engaged in criminal activity or has violated a traffic law to conduct a stop of a vehicle. See State v. O'Meara, 198 Ariz. 294, ¶ 7, 9 P.3d 325, 326 (2000); State v. Acosta, 166 Ariz. 254, 256, 801 P.2d 489, 491 (App. 1990). Under this standard, the officer must possess "a particularized and objective basis" for suspecting that the particular person stopped had committed such acts. State v. Gonzales-Gutierrez, 187 Ariz. 116, 118, 927 P.2d 776, 778 (1996).
¶5When reviewing a decision on a suppression motion, "we defer to the trial court's factual findings, including findings on credibility and the reasonableness of the inferences drawn by the officer." State v. Teagle, 217 Ariz. 17, ¶ 19, 170 P.3d 266, 271 (App. 2007). A court's legal conclusion regarding the lawfulness of a stop is a mixed question of fact and law, which we review de novo. State v. Livingston, 206 Ariz. 145, ¶ 3, 75 P.3d 1103, 1104 (App. 2003).
¶6Here, the trial court was in a superior position to evaluate the evidence relating to the vehicle's speed and to assess Officer Sanchez's credibility. See State v. Estrada, 209 Ariz. 287, ¶ 2, 100 P.3d 452, 453 (App. 2004); State v. Ossana, 199 Ariz. 459, ¶ 8, 18 P.3d 1258, 1260 (App. 2001). We have no basis to second-guess the court's determination that the stop was justified.
¶7Moran, however, contends a video taken from the dashboard of Officer Sanchez's vehicle provides "objective evidence" that contradicts his estimation of Moran's speed. This video, which was played during the evidentiary hearing, apparently only showed Moran travelling in his vehicle; it did not display a "speed read-out" or provide a numerical measurement of the car's speed. The trial court therefore correctly noted that the video did not refute a trained officer's estimation of speed. Furthermore, the video was not admitted into evidence. Thus, it cannot provide a basis for reversing the trial court's ruling. See State v. Rivera, 168 Ariz. 102, 103, 811 P.2d 354, 355 (App. 1990) ("An appellate court will not speculate about the contents of anything not in the appellate record.").
¶8Moran also claims Officer Sanchez lacked probable cause to arrest him, arguing the officer only collected evidence of alcohol consumption, not actual impairment. "We will review the facts in the light most favorable to the trial court's ruling and will not disturb it absent clear and manifest error." State v. Howard, 163 Ariz. 47, 49, 785 P.2d 1235, 1237 (App. 1989). However, we review de novo whether the evidence supported the trial court's determination of probable cause. ...