State v. White Eyes ( 2015 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
WANDA ANN WHITE EYES, Appellant.
No. 1 CA-CR 14-0162
FILED 5-19-15
Appeal from the Superior Court in Maricopa County
No. CR2012-162355-001
The Honorable Phemonia L. Miller, 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 Terry J. Adams
Counsel for Appellant
STATE v. WHITE EYES
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge John C. Gemmill and Judge Donn Kessler joined.
J O N E S, Judge:
¶1 Wanda Ann White Eyes (Defendant) appeals her conviction
and sentence for one count of aggravated driving under the influence
(DUI).1 After searching the entire record, Defendant’s 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. Defendant was afforded the opportunity to file a
supplemental brief in propria persona, which she elected not to do. After
reviewing the record, we find no error. Accordingly, we affirm Defendant’s
conviction and sentence.
FACTS2 AND PROCEDURAL HISTORY
¶2 In the early morning of December 8, 2012, a Maricopa County
Sheriff’s Office detective responded to a noise complaint at a bar in
Fountain Hills. As the detective was leaving the bar, his attention was
drawn to a blue vehicle in the parking lot. He engaged in a conversation
with Defendant, who was sitting in the driver’s seat, and learned her
1 As pertinent here, a person commits aggravated DUI if she drives
while (1) under the influence of intoxicating liquor and is impaired to the
slightest degree, and (2) her driver’s license or privilege to drive is
suspended or revoked. Ariz. Rev. Stat. (A.R.S.) § 28-1383(A)(1) (2015).
2 “We view the evidence and all reasonable inferences therefrom in
the light most favorable to sustaining the jury’s verdict[].” State v. Miles,
211 Ariz. 475, 476, ¶ 2 (App. 2005).
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STATE v. WHITE EYES
Decision of the Court
driver’s license was suspended.3 The detective advised Defendant not to
drive, and proceeded to leave the area.
¶3 Approximately five minutes later, that same detective
observed Defendant driving the same blue vehicle she occupied at the bar,
and, knowing her license was suspended, initiated a traffic stop. The
detective immediately noticed the odor of alcohol emanating from the
vehicle as he approached, which prompted him to request Defendant exit
the vehicle. After Defendant exited, the detective continued to notice the
odor of alcohol coming from her. Defendant also had bloodshot, watery
eyes and slurred speech, and swayed while speaking with the detective.
During the course of their conversation, Defendant admitted having
consumed two pitchers of beer earlier in the evening.
¶4 Based upon the foregoing, the detective initiated a DUI
investigation. He first administered the Horizontal Gaze Nystagmus
(HGN) test to Defendant, which focuses upon the reaction of a person’s eyes
to certain stimuli. During the HGN test, Defendant exhibited six of six signs
of impairment. The detective also asked Defendant to perform additional
field sobriety tests, but she refused because of a knee injury. The detective
then transported Defendant to the station for a blood draw, which indicated
a blood alcohol concentration of 0.07.
¶5 Defendant was convicted by a jury of one count of aggravated
DUI, a class 4 felony. The trial court ordered Defendant to be incarcerated
for four months, which she satisfied with her presentence incarceration
credit. The trial court also placed Defendant on supervised probation for a
period of three years following her release from custody.
DISCUSSION
¶6 After reviewing the entire record for reversible error, we find
none. See Leon, 104 Ariz. at 300. Reasonable evidence was presented to
support the jury’s verdict that Defendant drove while under the influence
of alcohol, and that she was impaired to the slightest degree. The record
also demonstrates Defendant’s license was suspended at the time of the
incident, and that she was aware of the suspension.
¶7 All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. Defendant was represented by
3 At trial, Defendant entered into a stipulation with the State that her
license was suspended at the time of the incident, and that she was aware
of the suspension.
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STATE v. WHITE EYES
Decision of the Court
counsel at all stages of the proceedings and was present at all critical stages.
The jury was properly comprised of eight jurors, and the record shows no
evidence of jury misconduct. See A.R.S. § 21-102(B) (2015); Ariz. R. Crim. P.
18.1(a). At sentencing, Defendant was given an opportunity to speak, and
the trial court stated on the record the evidence and materials it considered,
as well as the factors it found in imposing sentence. And the sentence
imposed was within the statutory limits.
CONCLUSION
¶8 Defendant’s conviction and sentence are affirmed. After the
filing of this decision, defense counsel’s obligations pertaining to
Defendant’s representation in this appeal have ended. Defense counsel
need do no more than inform Defendant 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).
¶9 Defendant 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
Defendant thirty days from the date of this decision to file an in propria
persona motion for reconsideration.
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