Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2013-107270-001 The Honorable Phemonia L. Miller, Judge Pro Tempore
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee
Maricopa County Legal Defender's Office, Phoenix By Cynthia D. Beck Counsel for Appellant
Presiding Judge Randall M. Howe delivered the decision of the Court, in which Judge Jon W. Thompson and Judge Lawrence F. Winthrop joined.
¶1 Valerie Marquez Escobido appeals her convictions and sentences for aggravated driving under the influence ("DUI") with a suspended license and aggravated DUI with a blood alcohol concentration ("BAC") of .08 percent or more with a suspended license. Escobido argues that she was entitled to a modified jury instruction regarding the presumption of notice of suspension. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 In September 2012, Escobido drove to a Circle K on a suspended license to purchase more beer after a night of drinking "a whole bunch." As she left the store's parking lot, she hit a curb and struck a truck, but continued driving toward her apartment. When Escobido arrived at her apartment complex, a Scottsdale police officer there on unrelated surveillance observed Escobido exit her damaged vehicle while stumbling and covered in blood. Concerned for her welfare, the officer approached Escobido and sat her on the ground. The officer asked Escobido for her name, but because she was unable to tell him who she was, he identified her by retrieving a drivers' license from her pants pocket.
¶3 Because Escobido was injured, the officer had her taken to the hospital for treatment. There, two Phoenix police officers interviewed Escobido. One officer, reading off a standard set of interview questions, asked if she knew that her license was suspended, and she responded, "Yes." When asked how she knew that, she replied, "A letter from MVD." The other officer again asked if she knew that her license was suspended, and she repeated that she did. Test results later showed that Escobido's BAC was .291 percent. The State charged her with aggravated DUI with a suspended license and aggravated DUI with a BAC of .08 percent or more with a suspended license.
¶4 During Escobido's jury trial, a custodian of records from the Motor Vehicle Division ("MVD") testified that two notices of suspension were sent to Escobido. She stated that the MVD sent the first notice on February 15, 2011, subsequent to a police stop the month before. During that stop, Escobido provided the officer - who was coincidentally one of the officers that interviewed her at the hospital - with a current address of West Shaw Butte. The MVD custodian testified that the officer had noted this address on the order of suspension form he forwarded to the MVD, but that the MVD had sent the notice to Escobido's previous address. She also stated that the MVD had sent the second notice on June 5, 2012 to an address on West Cactus Road, which Escobido had updated nine months before.
¶5 Escobido admitted that she drove while drunk, but denied knowing that her license was suspended. She testified that she had never received the first notice from the MVD and did not remember the previous police stop. She also stated that she did not receive the second notice. Although she had lived on West Cactus Road, her lease expired at the beginning of June 2012, and she moved out and went on vacation out of state, putting her mail on hold. When she returned from vacation and picked up her mail, she had no letter from the MVD. She testified that she did not remember telling officers at the hospital that she had received the notices.
¶6 At the close of testimony, Escobido moved for a judgment of acquittal pursuant to Arizona Rules of Criminal Procedure 20, arguing that she had put forth evidence to rebut the presumption of notice of suspension and that the State did not prove that she knew or should have known that her license was suspended. The trial court denied the motion. The parties then discussed the State's proposed jury instructions, including an instruction on the presumption of notice of suspension. The proposed instruction stated, in relevant part, that the presumption could be rejected and that the State maintained its obligation to prove each element:
You are free to accept or reject this presumption as triers of fact. You must determine whether the facts and circumstances shown by the evidence in this case warrant any presumption that the law permits you to make. Ultimately, even with the presumption, the State has the burden of proving each and every element of ...