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State v. Gomez

Court of Appeals of Arizona, First Division

February 26, 2019

STATE OF ARIZONA, Appellee,
v.
ROBERT ANGEL GOMEZ, Appellant.

          Appeal from the Superior Court in Maricopa County No. CR2015-144306-001 The Honorable James R. Rummage, Judge Pro Tempore

          Arizona Attorney General's Office, Phoenix By Jennifer L. Holder Counsel for Appellee

          Maricopa County Public Defender's Office, Phoenix By Carlos Daniel Carrion Counsel for Appellant

          Presiding Judge Diane M. Johnsen delivered the opinion of the Court, in which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.

          OPINION

          JOHNSEN, JUDGE:

         ¶1 Robert Angel Gomez was convicted of two counts of aggravated driving while under the influence with a passenger under 15 years of age. He now argues Arizona Revised Statutes ("A.R.S.") section 28-1383(A)(3) (2019) required the State to prove he knew his passenger was younger than 15 and that the superior court erred by failing to so instruct the jury.[1] We hold the defendant's knowledge of the passenger's age is not an element of the offense and affirm the convictions.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 Gomez crashed his car while driving a 14-year-old girl home from a party one night. He did not know the girl well and did not know how old she was. At the scene, police found a bottle of pills in Gomez's car and he admitted smoking marijuana earlier in the day.

         ¶3 As relevant here, Gomez was charged with two counts of aggravated driving while under the influence ("DUI") with a passenger under 15 years of age, each a Class 6 felony. A.R.S. § 28-1383(A)(3). Before trial, Gomez asked the superior court to instruct the jury that the State must prove he knew his passenger was younger than 15. The court declined to give the instruction, and the jury convicted him of both charges, along with four other felony offenses. The superior court sentenced him on the DUI offenses to two concurrent one-year terms of imprisonment.

         ¶4 Gomez timely appealed, challenging only his convictions under § 28-1383(A)(3). We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (2019), 13-4031 (2019) and -4033(A)(1) (2019).

         DISCUSSION

         ¶5 Gomez argues § 28-1383 required the State to prove he knew his passenger was younger than 15 at the time he committed the DUI offenses. This is a legal issue that we review de novo. See State v. Falcone, 228 Ariz. 168, 170, ¶ 9 (App. 2011). "Our task in interpreting the meaning of a statute is to fulfill the intent of the legislature that wrote it." State v. Williams, 175 Ariz. 98, 100 (1993). We first examine the statute's words. Id. If the meaning of the text is unclear, we then consider other factors such as the statute's context, history, subject matter, effects and consequences, spirit and purpose. Mail Boxes v. Indus. Comm'n, 181 Ariz. 119, 122 (1995). Toward that end, we also examine statutes that are in pari materia, meaning those of the same subject or general purpose. See Stambaugh v. Killian, 242 Ariz. 508, 509, ¶ 7 (2017).

         ¶6 In relevant part, § 28-1383 states:

A. A person is guilty of aggravated driving . . . while under the influence of intoxicating liquor or drugs if the person ...

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