Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2011-008013-001 The Honorable M. Scott McCoy, Judge
Maricopa County Public Defender, Jeffrey L. Force Counsel for Appellant
Arizona Attorney General, Jana Zinman Counsel for Appellee
Presiding Judge Randall M. Howe and Judge Margaret H. Downie joined.
Patricia A. Orozco, Judge
¶1 Defendant Leroy Laverne Simonton, timely appeals from his convictions for Count one, possession of dangerous drugs (methamphetamine), a Class four felony; Count two, use of dangerous drugs (methamphetamine), a Class four felony; Count three, possession of drug paraphernalia, a Class six felony; Count four, driving or actual physical control while under the influence of any drug, a Class one misdemeanor; and Count five, driving or actual physical control while under the influence of any drug defined in Arizona Revised Statute (A.R.S.) section 13-3401 or its metabolite was in his body, a Class one misdemeanor. He argues: (1) that double jeopardy barred his convictions for use of dangerous drugs and driving under the influence of dangerous drugs; and (2) that the trial court abused its discretion by denying admission of a tape recorded interview of a witness who was allegedly unavailable to testify at trial.
¶2 This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and A.R.S. sections 12-120.21(A)(1)(1992), 13-4031 and 13-4033 (2010). For reasons set forth below, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3 Mid-afternoon on May 20, 2011, Phoenix Police Department Officers Day and Swenson responded to a collision between a passenger vehicle and a minivan at the intersection of West Bell Road and 19thAvenue in Phoenix. Defendant identified himself to the officers as the driver of the minivan.
¶4 Officer Day became suspicious when she noticed that Defendant was "fidgety" and kept repeating himself; had a reddish face, constricted pupils, and slurred speech; and would stop speaking and stare off into the distance. She administered field sobriety tests (FSTs), four of which Defendant failed. Defendant's behavior and performance on the FSTs led Day to believe that Defendant was under the influence of a stimulant, not a depressant such as alcohol, and she arrested him for "suspicion of driving under the influence."
¶5 Before the minivan was towed, Defendant asked Swenson if Swenson could remove "his grandmother's jewelry" from the van, which Defendant indicated was located between the driver and passenger seats. When Swenson obliged, in addition to some costume jewelry, Swenson found several "designer baggies" full of a white crystalline substance that was later determined to be methamphetamine. Defendant denied knowing what the white substance was and subsequently requested that Swenson leave everything, including the jewelry, in the van.
¶6 Phoenix Police Detective Layden, a drug recognition expert, drew blood from Defendant and also obtained a urine sample. Layden also noted signs of impairment in Defendant that led him to believe that Defendant had "ingested a central nervous system stimulant" such as methamphetamine. Forensic analysis established that the blood and urine samples each contained both methamphetamine and amphetamine.
¶7 The State charged Defendant with Count one, possession of dangerous drugs (methamphetamine); Count two, use of dangerous drugs (methamphetamine); Count three, possession of drug paraphernalia (baggies); Count four, driving or actual physical control while under the influence of intoxicating liquor or drugs; and Count five, driving or actual physical control with a drug metabolite in his body. At trial, Defendant testified that a friend, Kenny Johnson, was actually driving the van but that Johnson "walked off" before the police arrived. He maintained that he tried to tell Day, but that she would not listen. However, he also testified that he had never actually mentioned Johnson's name to the police. Defendant denied ever using methamphetamine and denied any knowledge of the drugs that were found inside the van. He ascribed the blood and urine analysis results to the fact that he had been taking Sudafed or other "allergy medicine" because he had been suffering from "a real bad cold" for a "couple [of] weeks." The jury found the ...