State of Arizona v. Javier Solis , 236 Ariz. 242 ( 2014 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
JAVIER SOLIS,
Appellant.
No. 2 CA-CR 2014-0084
Filed November 26, 2014
Appeal from the Superior Court in Pima County
No. CR20114150001
The Honorable Richard D. Nichols, Judge
AFFIRMED IN PART AND VACATED IN PART
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Alan L. Amann, Assistant Attorney General, Tucson
Counsel for Appellee
Isabel G. Garcia, Pima County Legal Defender
By Scott A. Martin, Assistant Legal Defender, Tucson
Counsel for Appellant
STATE v. SOLIS
Opinion of the Court
OPINION
Presiding Judge Kelly authored the opinion of the Court, in which
Judge Howard and Judge Vásquez concurred.
K E L L Y, Presiding Judge:
¶1 Following a jury trial, Javier Solis was convicted of
criminal damage, endangerment, driving while under the influence
of alcohol (DUI), driving with a blood alcohol concentration (BAC)
of .08 or more, driving while under the extreme influence of liquor
with a BAC of .15 or more, and driving while under the extreme
influence of liquor with a BAC of .20 or more. The trial court
sentenced Solis to enhanced, presumptive, concurrent terms of
imprisonment of ten years and 3.75 years on the criminal damage
and endangerment counts, respectively, and time served on the
remaining counts.
¶2 Solis argues the trial court abused its discretion in
admitting an Arizona Department of Corrections (ADOC) “pen
pack”1 to prove he had two historical prior felony convictions for
sentence enhancement purposes. He also contends his enhanced
sentences must be vacated because the evidence was insufficient to
prove the prior convictions. Finally, he asserts his convictions and
sentences for driving with a BAC of .08 or more and extreme DUI
with a BAC of .15 or more must be vacated on double jeopardy
grounds because they are lesser-included offenses of his conviction
for extreme DUI with a BAC of .20 or more. For the following
reasons, we vacate Solis’s convictions and sentences for driving with
a BAC of .08 or more and driving with a BAC of .15 or more, and
affirm his convictions and sentences in all other respects.
1“Pen pack” refers to records kept in compliance with A.R.S.
§ 31-221, which requires ADOC to “maintain a master record file on
each person who is committed to the department.” See State v.
Trujillo, 227 Ariz. 314, n.7, 257 P.3d 1194, 1199-1200 n.7 (App. 2011).
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Opinion of the Court
Factual and Procedural Background
¶3 In April 2011, Solis was involved in a multiple-vehicle
accident in southeast Tucson. He was taken to a hospital, where an
officer read him Miranda2 warnings and obtained his consent for a
blood draw. A Tucson Police Department criminalist later tested
Solis’s blood and found that he had a BAC of .24.
¶4 Following a jury trial, Solis was convicted as set forth
above. The court then conducted a trial on prior convictions. Solis
objected to the ADOC pen pack as proof of his historical prior
convictions, but the court ruled it admissible as a self-authenticating
document. The court further found that the state had proven
beyond a reasonable doubt that Solis had two historical prior felony
convictions. Following sentencing, Solis appealed.
Discussion
Admissibility of Pen Pack
¶5 Solis first argues the trial court abused its discretion in
admitting the ADOC pen pack as a self-authenticating document.
We generally review the trial court’s evidentiary rulings for an
abuse of discretion. State v. Rutledge, 205 Ariz. 7, ¶ 15, 66 P.3d 50, 53
(2003). However, we review de novo the interpretation of court
rules. See State v. Kearney, 206 Ariz. 547, ¶ 5, 81 P.3d 338, 340 (App.
2003).
¶6 At the prior convictions trial, Solis had argued the pen
pack was not admissible as a self-authenticating, certified copy of a
public record because it failed to satisfy the requirements of Rule
902(4), Ariz. R. Evid. In its under advisement ruling, the trial court
noted that the pen pack was attached to an “‘In-State
Exemplification’ which certifies that the information in the [pen
pack] is true” and that the exemplification had been notarized.
Finding the pen pack thus “accompanied by a certificate of
acknowledgment that was lawfully executed by a notary public”
2Miranda v. Arizona, 384 U.S. 436 (1966).
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STATE v. SOLIS
Opinion of the Court
pursuant to Rule 902(8), the court ruled the pen pack was self-
authenticating and admissible.
¶7 The pen pack included an “Automated Summary
Report” that contained Solis’s personal details, including his birth
date, and details regarding his prior convictions and incarceration
history. The pen pack also included a photograph of Solis, a
fingerprint card, and an “in-state exemplification,” in which an
ADOC administrator attested that the Automated Summary Report,
fingerprint card, and photograph were “true and correct.” The in-
state exemplification was signed by the ADOC administrator and
notarized.
¶8 Solis argues the trial court erred in admitting the pen
pack under Rule 902(8) because the notary performed a jurat, rather
than the acknowledgment specified in that rule. 3 An
acknowledgment is “a notarial act in which a notary certifies that a
signer, whose identity is proven by satisfactory evidence, appeared
before the notary and acknowledged that the signer signed the
document.” A.R.S. § 41-311(1). A jurat, by contrast, is “a notarial act
in which the notary certifies that a signer, whose identity is proven
by satisfactory evidence, has made in the notary’s presence a
voluntary signature and has taken an oath or affirmation vouching
for the truthfulness of the signed document.” § 41-311(5).
¶9 We agree with Solis that the notary public performed a
jurat, see Arizona Department of State, Office of Secretary of State,
Notary Public Reference Manual 21-23 (2012), http://www.azsos.
gov/business_services/notary/notary_public_reference_manual.pdf;
however, we reject Solis’s suggestion that the jurat did not fulfill the
acknowledgment requirement of Rule 902(8) to make the pen pack
self-authenticating. In an acknowledgment, the signer
“acknowledges his or her signature,” and the notary “verifies the
signer’s acknowledgment.” Id. at 21. The notary is “attesting to the
3 Rule902(8) provides for self-authentication of documents
“accompanied by a certificate of acknowledgment that is lawfully
executed by a notary public or another officer who is authorized to
take acknowledgments.”
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STATE v. SOLIS
Opinion of the Court
genuineness of the signature.” Id. In a jurat, the signer “must be
placed under oath swearing or affirming that the contents of the
document are true and correct.” Id. at 23. As with an
acknowledgment, the notary’s signature on the notarial certificate
attests that the jurat signer’s signature is genuine. Id. Thus, the jurat
performed here accomplished the same purpose as an
acknowledgment: the notary attested to the genuineness of the
administrator’s signature. We cannot conclude the notary’s
additional step of verifying that the ADOC administrator took “an
oath or affirmation vouching for the truthfulness of the signed
document,” id. at 22, made the act performed unacceptable for self-
authentication purposes.
¶10 Although we generally must apply the unambiguous
language of a statute or court rule without using other means of
statutory construction, see State v. Gongora, 235 Ariz. 178, ¶ 10, 330
P.3d 368, 370 (App. 2014), we are not bound to do so where that
interpretation would lead to an absurd result, State v. Baca, 187 Ariz.
61, 63, 926 P.2d 528, 530 (App. 1996) (when construing a statute or
court rule, “we presume that the framer did not intend an absurd
result and our construction must be aimed at avoiding such a
consequence”). To interpret Rule 902(8) to mean that a notarial act
that only attests to the genuineness of a signature is sufficient for
self-authentication purposes, but a notarial act that attests to the
genuineness of a signature and requires an oath by the signer is not
would be absurd.
¶11 Solis contends that, “even if [the] notarial act can be
considered to be an acknowledgment, it is only an acknowledgment
of [the ADOC administrator’s] affidavit, not the ‘pen pack’ itself.”
We disagree. The in-state exemplification was stapled on both top
corners to the other pages of the pen pack, indicating it was part of
the records themselves. See State v. Trujillo, 227 Ariz. 314, ¶ 28, 257
P.3d 1194, 1200 (App. 2011) (“[I]t is reasonable to conclude that the
pen pack was stapled on both top corners precisely to avoid any lost,
additional, or confused pages, and that each page is not intended to
be considered separately.”). Solis has not suggested that the
individual pages of the pen pack should be considered separate
documents, and we see no reason to treat the in-state
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STATE v. SOLIS
Opinion of the Court
exemplification as separate from the remaining pages. The
exemplification specifically states that the attached documents are
true and correct, effectively incorporating them into the
exemplification. Although the ADOC administrator’s signature and
the notary’s acknowledgment appeared on the last page of the pen
pack, they served to verify the contents of the entire pen pack. See
A.R.S. § 41-313(A)(1) (certificates of acknowledgment may be
endorsed on or attached to instrument).
¶12 Solis next asserts that, “if the trial court’s analysis were
correct, any litigant could make any document or package of
documents self-authenticating simply by attaching a page bearing a
signature that has been acknowledged by a Notary Public,
regardless of the source or authenticity of the substantive
documents.” But that is exactly what Rule 902(8) permits: a
document is self-authenticating when accompanied by a certificate
of acknowledgment. If there is a question about the genuineness of
the documents or the signature, the opponent is free to raise it even
if the documents are admitted. Cf. State v. King, 213 Ariz. 632, ¶ 11,
146 P.3d 1274, 1278 (App. 2006) (once document admitted under
Rule 901, “‘the opponent is still free to contest the genuineness or
authenticity of the document, and the weight to be given the
document becomes a question for the trier of fact’”), quoting State v.
Irving, 165 Ariz. 219, 223, 797 P.2d 1237, 1241 (App. 1990).
¶13 Solis maintains that “the trial court’s analysis, if correct,
would render meaningless Rule 902(2) and Rule 902(4).” Solis relies
on State v. Kennerson, 695 So. 2d 1367 (La. Ct. App. 1997), to support
his assertion that if an acknowledgment is enough to make a
document self-authenticating, “there would never be any reason to
meet the first and second of Rule 902(2)’s requirements.” In
Kennerson, the state offered out-of-state criminal records, including
an exhibit that contained a photograph of the defendant, a criminal
history sheet, and a set of fingerprint records, to prove Kennerson
had prior convictions. Id. at 1373. The exhibit bore a notarial stamp
on its first page and was signed by the records custodian and a
notary. Id. at 1376. The court construed Louisiana’s evidentiary
rules to require “[d]ocuments produced outside the State of
Louisiana” to contain “either official seals, or multiple attestations,
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STATE v. SOLIS
Opinion of the Court
or both.” Id. at 1375. The court noted that, although it would seem
that Louisiana’s version of Rule 902(8) applied, “because paragraphs
902(1) and 902(2) are the more particular provisions, those
provisions govern.” Id. at 1376. The court stated, “If the
authentication process merely requires an out-of-state deputy to
obtain the stamp of an out-of-state notary, then paragraphs 902(1)
and 902(2) would be meaningless.” Id.
¶14 We are not persuaded by Solis’s reliance on Kennerson.
First, we are not bound by decisions from other states. State v.
Cameron, 185 Ariz. 467, 469, 916 P.2d 1183, 1185 (App. 1996).
Moreover, Kennerson is distinguishable because the pen pack here
was not an out-of-state document, and no Arizona case has held that
records of previous convictions, whether from within Arizona or
outside the state, must contain “either official seals, or multiple
attestations, or both” in order to be authenticated. Id. at 1375. Thus,
the Kennerson court’s concern regarding authentication of out-of-
state documents does not apply here.
¶15 Nor do we agree that permitting self-authentication of
conviction records under Rule 902(8) would render Rules 902(2) and
902(4) meaningless. Rule 902(2) applies to unsealed domestic public
documents that are signed by a public officer or employee and
certified by “another public officer who has a seal and official duties
within” the same entity as the signer, while Rule 902(4) applies to
copies of public records that are certified as correct. Neither rule
requires an acknowledgment by a notary public, as does Rule 902(8).
Rules 902(2), 902(4), and 902(8) simply provide different methods for
establishing the authenticity of documents, and each method
provides its own distinct measure of reliability. We conclude the
trial court did not abuse its discretion in admitting the pen pack
under Rule 902(8).
Sufficiency of Evidence of Prior Convictions
¶16 Solis argues the state “failed to introduce sufficient
proof that [he] had two prior felony convictions” and requests that
we vacate his enhanced sentences. Solis acknowledges he did not
raise this claim below; accordingly, we review only for fundamental,
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STATE v. SOLIS
Opinion of the Court
prejudicial error.4 State v. Robles, 213 Ariz. 268, ¶ 12, 141 P.3d 748,
752 (App. 2006). “Fundamental error is ‘error going to the
foundation of the case, error that takes from the defendant a right
essential to his defense, and error of such magnitude that the
defendant could not possibly have received a fair trial.’” Id., quoting
State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005).
“‘Before we may engage in a fundamental error analysis, however,
we must first find that the trial court committed some error.’”
Id. ¶ 13, quoting State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342
(1991).
¶17 Solis relies on State v. Hauss to argue the state had
neither proved its allegations of historical prior felonies through
“certified cop[ies] of the conviction[s]” nor shown why it should be
excused from that requirement. 140 Ariz. 230, 231, 681 P.2d 382, 383
(1984). He maintains that the pen pack therefore was insufficient
evidence of his prior convictions.
¶18 In Hauss, the state’s evidence of the defendant’s prior
convictions had consisted of testimony from a probation officer who
had prepared a presentence report for those convictions. Id. at 230,
681 P.2d at 382. “Based solely on his personal knowledge without
reference to an official record, the probation officer testified that he
had been present in court when the prior judgments of guilt were
entered and sentences imposed, and that the appellant was the
person so adjudged and sentenced.” Id. at 230-31, 681 P.2d at 382-83.
¶19 Our supreme court affirmed its previous holding in
State v. Lee that “‘[t]he proper procedure to establish the prior
conviction is for the state to offer in evidence a certified copy of the
conviction’” and “‘establish the defendant as the person to whom
the document refers,’” emphasizing that “[t]he Lee procedure is
4Solis suggests that his not guilty plea and his “holding the
State to its burden to prove its allegations of prior convictions” was
sufficient to preserve the issue for appeal. However, objections to
the sufficiency of evidence of prior convictions must be made
specifically in the trial court to preserve the issue for appeal. See
State v. Robles, 213 Ariz. 268, ¶¶ 11-12, 141 P.3d 748, 752 (App. 2006).
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STATE v. SOLIS
Opinion of the Court
necessary to ensure that proceedings to determine the existence of
prior convictions do not become credibility contests.” Id. at 231, 681
P.2d at 383, quoting State v. Lee, 114 Ariz. 101, 105, 559 P.2d 657, 661
(1976). The court found the probation officer’s testimony had been
“highly reliable” and affirmed Hauss’s sentences, id. at 232, 681 P.2d
at 384, but, for future cases, the court “mandated” the introduction
of “documentary evidence in order to prove prior convictions,”
“subject to two very limited exceptions.” Id. at 231, 681 P.2d at 383.
The court stated this documentation requirement would be excused
only when (1) a defendant has admitted a conviction while testifying
in court, or (2) “the state can show that its earnest and diligent
attempts to procure the necessary documentation were unsuccessful
for reasons beyond its control and that the evidence introduced in its
stead is highly reliable.” Id.
¶20 In Robles, we addressed virtually the same issue Solis
now raises on appeal. 213 Ariz. 268, ¶ 11, 141 P.3d at 752. In that
case, we explained that “the focus in Hauss was on the need for
reliable documentary evidence, rather than merely testimonial
evidence (with its potential ‘credibility contests’ and ‘unfair[ness] to
defendants’), to substantiate the fact of a prior conviction.” Id. ¶ 15,
quoting Hauss, 140 Ariz. at 231, 681 P.2d at 383 (alteration in Robles).
We concluded that “[w]hen, as here, the trial court’s finding of prior
convictions is primarily based on such documentary evidence, the
concerns expressed in Hauss about ‘non-documentary evidence
[being] offered to establish the fact of a prior conviction’ are
dissipated.” Id., quoting Hauss, 140 Ariz. at 232, 681 P.2d at 384
(alteration in Robles). Thus, we stated, “Although the preferred
method of proving prior convictions for sentence-enhancement
purposes is submission of certified conviction documents bearing
the defendant’s fingerprints, courts may consider other kinds of
evidence as well.” Id. ¶ 16 (citation omitted). We noted that our
supreme court had accepted a commitment record as sufficient
proof of a defendant’s prior conviction. Id., citing State v. Nash, 143
Ariz. 392, 403, 694 P.2d 222, 233 (1985).
¶21 Solis argues that, unlike this case, the defendant in
Robles did not object to the documentary evidence, which Solis
claims was “a key to that holding.” Like Solis, the defendant in
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Opinion of the Court
Robles did not object to the sufficiency of the evidence of his prior
convictions in the trial court. Id. ¶ 12. Here, Solis objected only to
the admissibility of the pen pack as self-authenticating, which is
irrelevant to the question of whether it was sufficient evidence of his
prior convictions. He also asserts “there was no supporting
testimonial evidence bolstering the ‘pen pack’ in Appellant’s case, as
there was in Robles.” But we made clear in Robles that documentary
evidence of prior convictions is sufficient. See id. ¶¶ 15-16.
Moreover, we have concluded that pen packs alone may be
sufficient to prove prior convictions. See State v. Trujillo, 227 Ariz.
314, ¶ 29, 257 P.3d 1194, 1200 (App. 2011). Solis’s attempt to
distinguish Robles is unavailing.
¶22 Here, the pen pack contained a photograph that
matched a separately admitted photograph that the trial court found
depicted Solis. And the date of birth on the separately admitted
photograph and the “TPD Crime Lab: Alcohol Notes” matched the
date of birth in the pen pack. As we stated in Robles, it is “notable
that [Solis] has not claimed, either below or on appeal, that he is not
the person who was convicted.” 213 Ariz. 268, n.4, 141 P.3d at 753
n.4.5 Solis has not argued the information contained in the pen pack
was incorrect or that it failed to show he had two historical prior
felony convictions. We thus conclude the trial court did not commit
fundamental error by finding Solis had two historical prior felony
convictions for sentence enhancement purposes.
Double Jeopardy
¶23 Solis argues the trial court should have vacated his
convictions for driving with a BAC of .08 or more and extreme DUI
with a BAC of .15 or more because they are lesser-included offenses
of extreme DUI with a BAC of .20 or more. He concedes he did not
object to the convictions below; accordingly, we review only for
fundamental, prejudicial error. State v. Price, 218 Ariz. 311, ¶ 4, 183
P.3d 1279, 1281 (App. 2008). “[A] violation of double jeopardy is
5Indeed, the state offered certified copies of documents from
the prior cases, to which Solis did not object, but those documents
never were admitted.
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STATE v. SOLIS
Opinion of the Court
fundamental error.” Id. The state concedes the claim of error and
“agrees that the correct remedy is to vacate the two lesser included
convictions.” We nevertheless examine this issue because we are
not bound by the state’s concession, State v. Sanchez, 174 Ariz. 44, 45,
846 P.2d 857, 858 (App. 1993), and we will not ignore fundamental
error when we find it, State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d
641, 650 (App. 2007).
¶24 “‘The Double Jeopardy Clause . . . bars multiple
punishments for the same offense.’” State v. Siddle, 202 Ariz. 512,
¶ 8, 47 P.3d 1150, 1153 (App. 2002), quoting State v. Powers, 200 Ariz.
123, ¶ 5, 23 P.3d 668, 670 (App. 2001). A lesser-included offense is
the same offense as the greater if the lesser “‘is, by its very nature,
always a constituent part of the greater offense, or whether the
charging document describes the lesser offense even though it does
not always make up a constituent part of the greater offense.’” Id.
¶ 10, quoting State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 12, 965 P.2d
94, 97 (App. 1998) (emphasis omitted). We have stated, “[W]hen the
only difference between two DUI charges is the BAC threshold, a
court cannot allow a conviction on the lesser charge to stand.” State
v. Nereim, 234 Ariz. 105, ¶ 24, 317 P.3d 646, 653 (App. 2014). Here,
the only difference between the DUI charges was the BAC threshold.
See A.R.S. § 28-1381(A)(2) (defining DUI); A.R.S. § 28-1382(A)
(defining extreme DUI). Thus, we conclude that the charges of
driving with a BAC of .08 or more and extreme DUI with a BAC of
.15 are lesser-included offenses of extreme DUI with a BAC of .20 or
more, and double jeopardy barred Solis’s convictions for those
charges.
Disposition
¶25 For the foregoing reasons, we vacate Solis’s convictions
and sentences for driving with a BAC of .08 or more and for extreme
DUI with a BAC of .15 or more. We affirm his convictions and
sentences in all other respects.
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