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State v. Brown

Court of Appeals of Arizona, First Division, Department C

October 31, 2013

STATE OF ARIZONA, Appellee,
v.
DANIEL STEWART BROWN, Appellant.

         Not for Publication – Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Mohave County Cause No. S8015CR201101268 The Honorable Steven F. Conn, Judge.

Thomas C. Horne, Attorney General Phoenix by Joseph T. Maziarz, Chief Counsel, Criminal Appeals/Capital Litigation Section and Adele Ponce, Assistant Attorney General Attorneys for Appellee.

Jill L. Evans, Maricopa County Public Defender Phoenix by Barbara Cook-Hamp, Deputy Public Defender Attorneys for Appellant.

MEMORANDUM DECISION

SAMUEL A. THUMMA, Judge.

¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Defendant Daniel Stewart Brown has advised the court that, after searching the entire record, she is unable to discover any arguable questions of law, and has filed a brief requesting this court conduct an Anders review of the record. Brown was given the opportunity to file a supplemental brief pro se, but has not done so. This court has reviewed the record and finds no reversible error. Accordingly, Brown's convictions and resulting sentences are affirmed.

FACTS[1] AND PROCEDURAL HISTORY

¶2 In November 2011, Brown was stopped for speeding. By the time Brown stopped his car, he had pulled into his driveway, and although asked to stop by Officer Foster, walked toward his residence. Brown turned and asked Officer Foster "are you going to arrest me again?" When Officer Foster asked for a license, Brown replied, "you know I don't have a driver's license."

¶3 Eventually, Brown was placed under arrest. No field sobriety tests were performed because Brown would not comply with Officer Foster's commands. At the police station, after being read an implied consent and agreeing to testing, breathalyzer tests using an Intoxilyzer 8000 were conducted. Exhibits received in evidence at trial show that Brown had an initial blood alcohol content level of .113 and a second reading, completed within twenty minutes of the first, showed a blood alcohol content level of .110. At the time of the offense, Brown's driver's license was suspended.

¶4 Brown was indicted for aggravated driving a vehicle while under the influence of intoxicating liquor and aggravated driving a vehicle while under the influence of intoxicating liquor with an alcohol concentration of .08% or more, both class four felonies, in violation of Arizona Revised Statutes (A.R.S.) sections 28-1383(A)(1), 28-1381, 13-701, 13-702 and 13-801 (2013).[2]

¶5 Brown failed to appear at trial. The superior court found Brown previously had been advised of the trial date, that his absence was voluntary and that no good cause had been shown for his absence and, accordingly, trial proceeded as scheduled. During trial, the only witness called was Officer Foster. The State stipulated to a motion in limine filed by Brown and, as modified by the superior court, the motion successfully limited the admission of potential evidence, including testimony by Officer Foster about statements Brown made during his arrest. During a one-day trial, Brown's counsel represented his interests, the jury heard evidence and arguments and was properly instructed on the law. After deliberations, the jury found Brown guilty on both counts.

¶6 Brown was picked up on a warrant approximately a month after trial and was held pending sentencing. At sentencing, the parties stipulated to the state's dismissal of an older out-of-state conviction. Brown stipulated to a prior non-historical Arizona felony conviction, which meant he was not probation eligible. The court found no aggravating factors and two mitigating factors. Accordingly, the court sentenced Brown to two concurrent prison sentences of 1.75 years (less than presumptive), with 102 days of credit for time served, mandatory DUI assessments and related surcharges.

¶7 Brown timely appealed his convictions and sentences. This court has jurisdiction over his appeal pursuant to A.R.S. §§ ...


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