State v. Hargett ( 2016 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
LISA MARGARET HARGETT, Appellant.
No. 1 CA-CR 15-0621
FILED 11-10-2016
Appeal from the Superior Court in Maricopa County
No. CR2014-144395-001
The Honorable Annielaurie Van Wie, Judge Pro Tempore
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
STATE v. HARGETT
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Randall M. Howe and Judge Donn Kessler joined.
J O N E S, Judge:
¶1 Lisa Hargett appeals her convictions and sentences for two
counts of aggravated driving under the influence (DUI) in violation of
Arizona Revised Statutes (A.R.S.) sections 28-1381(A)(1), (3) and
-1383(A)(1).1 After searching the entire record, Hargett’s defense counsel
has identified no arguable question of law that is not frivolous. Therefore,
in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297 (1969), defense counsel asks this Court to search the record for
fundamental error. Hargett was afforded an opportunity to file a
supplemental brief in propria persona but declined to do so. After reviewing
the record, we find no error. Accordingly, Hargett’s convictions and
sentences are affirmed.
FACTS2 AND PROCEDURAL HISTORY
¶2 Around 8:53 a.m. on February 19, 2013, an officer with the
Chandler Police Department responded to a call advising of a white female
in a green Honda with a California license plate “possibly impaired, driving
all over the roadway” in his area. The officer observed a vehicle matching
that description turn into a convenience store parking lot. He immediately
pulled in behind the vehicle and made contact with the woman in the
driver’s seat, later identified as Hargett. When the officer asked Hargett for
her driver’s license and registration, Hargett appeared confused by the
request and flipped through her wallet for several minutes before
eventually producing her license.
1 Absent material changes from the relevant date, we cite a statute’s
current version.
2 We view the facts in the light most favorable to sustaining the
convictions with all reasonable inferences resolved against the defendant.
State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v.
Valencia, 186 Ariz. 493, 495 (App. 1996)).
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STATE v. HARGETT
Decision of the Court
¶3 After a second officer observed signs and symptoms of
impairment, Hargett was arrested for DUI and transported to the police
station where her blood was drawn, with consent, at 10:49 a.m. Meanwhile,
a third officer, while cataloging the contents of Hargett’s vehicle,
discovered one pipe commonly used to smoke methamphetamine in the
driver’s side door pocket, and another protruding from a purse found in
the trunk.
¶4 After being advised of her rights pursuant to Miranda v.
Arizona, 384 U.S. 436 (1966), Hargett agreed to participate in a drug
influence evaluation. During the evaluation, Hargett admitted she had
taken hydrocodone the day before, smoked methamphetamine around 8:00
p.m. the previous evening, and taken carisoprodol, a muscle relaxant
prescribed to address a prior injury to her neck and back, around 4:00 a.m.
The officer who performed the evaluation observed that Hargett slurred her
speech, had a flushed face, and exhibited a number of other signs of
impairment, including lack of convergence in her eyes, horizontal gaze
nystagmus (HGN), eyelid tremors, dilated pupils, pupillary unrest, leg
tremors, swaying, poor balance, an inaccurate perception of time,
unusually low body temperature, elevated heartbeat, piloerection, and
raised taste buds. These signs and symptoms are consistent with both
central nervous system (CNS) depressant and CNS stimulant use.
¶5 Subsequent testing of Hargett’s blood revealed the presence
of the CNS depressants clonazepam, meprobamate (a metabolite of
carisprodol), and the barbiturate butalbital, as well as the CNS stimulants
methamphetamine and amphetamine (a metabolite of methamphetamine),
and pseudoephedrine, an over-the-counter decongestant sometimes used
as a cutting agent during the production of methamphetamine.
¶6 At trial, criminalists testified a CNS depressant can affect a
person’s coordination and ability to move fluidly, control eye movements,
and divide attention amongst various tasks. Even though the CNS
depressants identified in Hargett’s blood were each within the therapeutic
range individually, the combined effect of these drugs could be amplified
when used together. And because the impacted tasks are essential to
driving effectively, use or misuse of a CNS depressant can cause impaired
driving. A CNS stimulant often has the opposite effects, causing dilated
pupils, increased body temperature, body tremors, hyperactivity, and
agitation, which can also affect a person’s ability to drive, and the level of
the CNS stimulants found in Hargett’s blood were five to ten times the
therapeutic range. Further, the criminalists agreed that when a CNS
depressant and CNS stimulant are taken together, the two “don’t generally
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STATE v. HARGETT
Decision of the Court
just counter balance each other.” Rather, the combination can exacerbate
divided attention task problems. Additionally, the presence of HGN
indicators, which occur with CNS depressants but not CNS stimulants,
suggests the depressants were still having some quantifiable effect, despite
the addition of the stimulant.
¶7 The State also introduced evidence that Hargett’s privilege to
drive had been suspended and revoked in 2012. Multiple letters were sent
to Hargett advising of the action taken against her license, and she was cited
with driving on a suspended license in January 2013, just one month prior
to her arrest in the immediate case.
¶8 At the close of the State’s evidence, Hargett moved for
judgment of acquittal pursuant to Arizona Rule of Criminal Procedure 20,
arguing insufficient evidence had been presented for the jury to convict her
of aggravated DUI because the chain of custody of the blood evidence was
flawed and the State did not present any evidence of impaired driving. The
motion was denied.
¶9 Hargett testified in her own defense. Hargett denied driving
to the convenience store on February 19, 2013, testifying instead she was the
passenger in the vehicle being driven by her husband. According to
Hargett, she had entered the convenience store and purchased coffee while
her husband used the restroom. By the time she returned to her vehicle,
keys in hand, a police officer had pulled in and began asking questions
about the vehicle, her identification, and her privilege to drive.
¶10 Hargett was confused about the reason for her arrest, but
admitted that her license had been suspended, the pipes found in the
vehicle belonged to her and her husband, and she had smoked
methamphetamine the evening prior to her arrest. She testified the other
drugs found in her system were prescribed to her and denied any
impairment as a result. She believed, rather, the signs and symptoms
identified by the drug recognition expert resulted from a lower back injury
and performing the tests barefoot “in the hot pavement” — despite the
otherwise undisputed evidence that she was arrested on a February
morning and the drug recognition evaluation took place at the police
station.
¶11 Hargett also testified her husband had seen the police arrive
and left without her noticing; she did not see him again until she was
released from custody later that evening. None of the officers recalled
Hargett ever mentioning a husband or seeing a man who could have been
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STATE v. HARGETT
Decision of the Court
Hargett’s husband at the time of her arrest, and the husband did not testify
at trial.
¶12 The jury found Hargett guilty as charged. The trial court
sentenced Hargett as a non-dangerous, non-repetitive offender to four
months’ imprisonment followed by three years’ probation and gave her
credit for thirty-six days of presentence incarceration. Hargett timely
appealed, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1),
13-4031, and -4033(A)(1).
DISCUSSION
¶13 Our review reveals no fundamental error. See Leon, 104 Ariz.
at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”). A person is guilty of DUI if she “drive[s] or [is] in actual
physical control of a vehicle . . . [w]hile under the influence of intoxicating
liquor, any drug, a vapor releasing substance containing a toxic substance
or any combination of liquor, drugs or vapor releasing substances if the
person is impaired to the slightest degree.” A.R.S. § 28-1381(A)(1). If a
person is impaired while under the influence, it is no defense that the drugs
were taken legally. A.R.S. § 28-1381(B). A person is also guilty of DUI if
she “drive[s] or [is] in actual physical control of a vehicle . . . [w]hile there
is any drug defined in [A.R.S.] § 13-3401 or its metabolite in the person’s
body.” A.R.S. § 28-1381(A)(3). The drugs defined in A.R.S. § 13-3401
include methamphetamine, carisoprodol, clonazepam, and meprobamate.
A.R.S. § 13-3401(6)(c)(xxxviii), (d)(v), (d)(xi), (d)(xl). Furthermore, a person
is guilty of aggravated DUI if she commits a DUI “while [her] driver license
or privilege to drive is suspended, canceled, revoked or refused . . . as a
result of [a prior DUI].” A.R.S. § 28-1383(A)(1). Based upon the record,
sufficient evidence was presented upon which a jury could determine,
beyond a reasonable doubt, Hargett was driving under the influence of
butalbital, carisprodol, clonazepam, and methamphetamine, while those
drugs or their metabolites were in her body, that she did so knowing her
license was suspended as a result of a prior DUI, and that these drugs or
some combination thereof had impaired her to the slightest degree.
¶14 All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. Hargett was represented by counsel
at all stages of the proceedings and was present at all critical stages except
for the mornings of two days of trial, for which her presence was
voluntarily waived. The jury was properly comprised of eight jurors, and
the record shows no evidence of jury misconduct. See A.R.S. § 21-102(B);
Ariz. R. Crim. P. 18.1(a). At sentencing, Hargett was given an opportunity
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STATE v. HARGETT
Decision of the Court
to speak, and the trial court stated on the record the evidence and materials
it considered and the factors it found in imposing sentences. See Ariz. R.
Crim. P. 26.9, 26.10. Additionally, the sentences imposed were within the
statutory limits. See A.R.S. §§ 13-702(D), -902(A)(3), (B)(2), 28-1383(D)(1).
CONCLUSION
¶15 Hargett’s convictions and sentences are affirmed. Defense
counsel’s obligations pertaining to Hargett’s representation in this appeal
have ended. Defense counsel need do no more than inform Hargett of the
outcome of this appeal and her future options, unless, upon review, counsel
finds an issue appropriate for submission to our supreme court by petition
for review. State v. Shattuck, 140 Ariz. 582, 584-85 (1984).
¶16 Hargett has thirty days from the date of this decision to
proceed, if she wishes, with an in propria persona petition for review. See
Ariz. R. Crim. P. 31.19(a). Upon the Court’s own motion, we also grant
Hargett thirty days from the date of this decision to file an in propria persona
motion for reconsideration.
AMY M. WOOD • Clerk of the Court
FILED: AA
6