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State v. Peltz

Court of Appeals of Arizona, Second Division

March 2, 2017

The State of Arizona, Appellee,
Vernon Edward Peltz, Appellant.

         Appeal from the Superior Court in Pima County No. CR20153351001 The Honorable Danelle B. Liwski, Judge.

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee

          Vernon E. Peltz, Tucson In Propria Persona

          Judge Vásquez authored the opinion of the Court, in which Presiding Judge Howard and Chief Judge Eckerstrom concurred.


          VÁSQUEZ, Judge.

         ¶1 After a jury trial, Vernon Peltz was convicted of aggravated assault causing temporary but substantial disfigurement-a lesser-included offense of aggravated assault causing serious physical injury-and assault-a lesser-included offense of aggravated assault with a dangerous instrument. The trial court suspended the imposition of sentence and placed him on concurrent terms of probation, the longer of which is three years. On appeal, Peltz contends the prosecutor committed misconduct by charging him with aggravated assault causing serious physical injury and the court erred by denying his motion for a judgment of acquittal on that charge because there was only evidence of minor injuries. He also argues the court erred by admitting lay witness opinion testimony and by denying his motions to suppress. For the reasons that follow, we affirm.

         Factual and Procedural Background

         ¶2 We view the facts in the light most favorable to sustaining Peltz's convictions. See State v. Molina, 211 Ariz. 130, ¶ 2, 118 P.3d 1094, 1096 (App. 2005). In December 2012, Arizona Department of Public Safety Trooper Saleem Abdullah responded to a motor vehicle accident on Oracle Road in Pima County. Abdullah's investigation revealed that a pickup truck "had left the roadway going northbound, crossed through the center line of the road across opposing traffic, " traveled along the dirt shoulder into and out of a ditch, and ultimately crashed into a sign. He observed blood on the driver's side of the vehicle, specifically, on the inside and outside of the door, the seat, the floorboard, and the steering wheel. There was no blood on the passenger's side. He saw emergency medical technicians treating Peltz and Peltz s mother, J.K. Peltz had a cut above his left eye that was bleeding, and he had blood on his hands. J.K. did not have any open cuts or blood on her, but she "complained of numerous pains to medical personnel."

         ¶3 Abdullah also noticed that Peltz had "red, watery eyes, [a] flushed face[, ] . . . ptosis, which is a drooping of the eyelids, " and "an upper body sway." When Abdullah asked Peltz what had happened, Peltz stated that "there was a crash and that, honestly, he had a few drinks."

         ¶4 Medical technicians transported Peltz and J.K. to nearby hospitals. Abdullah followed Peltz to continue his investigation. Once at the hospital, a nurse informed Abdullah that they would be drawing Peltz's blood for medical purposes, and Abdullah requested a sample. Abdullah waited in a common area by the nurses' station outside of Peltz's room. As he did so, Abdullah overheard Peltz talking on his cell phone. Peltz stated he had been leaving a restaurant, where he consumed "a few alcoholic drinks, " and he had been driving. Abdullah also heard Peltz confirm to medical personnel that he had been drinking alcohol.

         ¶5 Subsequent testing of Peltz's blood sample revealed a .142 alcohol content. Officers discovered that the truck was registered to Peltz and that J.K.'s driver license had been suspended. J.K.'s injuries included a lacerated spleen and fractures to her spine and eye socket.

         ¶6 A grand jury indicted Peltz for aggravated assault causing serious physical injury to J.K. and aggravated assault of J.K. using a deadly weapon or dangerous instrument (the motor vehicle).[1] As noted above, the jury convicted him of lesser-included offenses for each charge: aggravated assault causing temporary but substantial disfigurement and assault. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

         Prosecutorial Misconduct

         ¶7 Peltz first argues "the prosecutor committed misconduct by charging aggravated assault with 'serious physical injury' without any reasonable belief that any injuries were serious." Although Peltz alleged prosecutorial misconduct in charging him below, it was for different reasons than he now raises on appeal. Specifically, he argued the prosecutor "fail[ed] to adequately investigate the easy to determine status of [his] driving record" or to present to the grand jury "clearly exculpatory evidence . . . that showed a witness observed the vehicle leaving [his] house with [J.K.] driving." See State v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App. 2008) (objection on one ground does not preserve issue on another). Accordingly, he has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). However, because Peltz has failed to argue the alleged error was fundamental, he has waived review of this issue. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008); see also State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (appellate court will not ignore fundamental error if found).

         ¶8 Even assuming the argument had not been waived, Peltz cannot establish fundamental error on his claim of prosecutorial misconduct. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607. The prosecutor has broad discretion in deciding both whether to charge and which charges to file against a defendant. State v. Hankins, 141 Ariz. 217, 221, 686 P.2d 740, 744 (1984). Courts will not interfere with that discretion unless the prosecutor is acting illegally or in excess of his or her powers. State v. Murphy, 113 Ariz. 416, 418, 555 P.2d 1110, 1112 (1976). Here, Peltz did not argue that the prosecutor failed to make a fair and impartial presentation in the final remand to the grand jury, see id., and the grand jury independently determined that there was probable cause to indict Peltz for aggravated assault involving serious physical injury, see State v. Coconino Cty. Superior Court, 139 Ariz. 422, 424, 678 P.2d 1386, 1388 (1984). The prosecutor did not engage in misconduct by seeking an indictment on that charge.

         Motion for a Judgment of Acquittal

         ¶9 In a somewhat related argument, Peltz contends the trial court erred by denying his motion for a judgment of acquittal, pursuant to Rule 20, Ariz. R. Crim. P., on the charge of aggravated assault causing serious physical injury because the state presented insufficient evidence that J.K.'s injuries were serious. However, because Peltz was not convicted of this offense, the issue is moot. See Pointe Resorts, Inc. v. Culbertson, 158 Ariz. 137, 140-41, 761 P.2d 1041, 1044-45 (1988) (under mootness doctrine, court should not address issues that no longer exist because of change in factual circumstances). To the extent Peltz believes that, if his Rule 20 motion on the original charge had been granted, the trial court could not have instructed the jury on lesser-included offenses, he is mistaken.[2] See State ex rel. Thomas v. Duncan, 216 Ariz. 260, n.7, 165 P.3d 238, 243 n .7 (App. 2007) (noting that, even if judgment of acquittal granted on charged offense, "lesser included offense would still be applicable"); State v. Miranda, 198 Ariz. 426, ¶ 9, 10 P.3d 1213, 1215 (App. 2000) (instruction on lesser-included offense proper if supported by evidence).

         ¶10 The trial court did not, in any event, err in denying Peltz's Rule 20 motion because there was substantial evidence that J.K. had suffered a "serious physical injury." See State v. West, 226 Ariz. 559, ¶¶ 15-16, 250 P.3d 1188, 1191 (2011). "[I]n ruling on a Rule 20 motion, . . . a trial court may not re-weigh the facts or disregard inferences that might reasonably be drawn from the evidence." Id. ¶ 18. "[T]he relevant question is 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." Id. ¶ 16, quoting State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). "When 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." State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997).

         ¶11 The physician who admitted J.K. to the intensive care unit of the hospital testified that, due to the accident, J.K. had suffered a laceration to her spleen, which carried a risk of internal bleeding, a burst fracture of her spine, and an orbital fracture with bruising. He also explained that, because J.K. was eighty-three years old, she was at a greater risk for complications and was less likely to function at the same level of pre-injury independence. Upon her discharge from the hospital several days later, J.K. was placed in a skilled nursing facility. A reasonable jury could have concluded that J.K.'s injuries "create[d] a reasonable risk of death" or "cause[d] serious and permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb." A.R.S. § 13-105(39); see State v. Mwandishi, 229 Ariz. 570, ¶ 8, 278 P.3d 912, 913 (App. 2012).

         Lay Witness ...

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