State v. Forister ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
MARK STEVEN FORISTER, Appellant.
Nos. 1 CA-CR 15-0385; 1 CA-CR 15-0387; 1 CA-CR 15-0388
(Consolidated)
FILED 4-28-2016
Appeal from the Superior Court in Maricopa County
Nos. CR2009-120779-001 DT; CR2009-170577-001 DT; CR 2013-459534-001 DT
The Honorable Brian Kaiser, 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 Jeffrey L. Force
Counsel for Appellant
STATE v. FORISTER
Decision of the Court
MEMORANDUM DECISION
Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Patricia A. Orozco joined.
J O N E S, Judge:
¶1 Mark Forister appeals his convictions and sentences for four
counts of aggravated driving under the influence (DUI), all class four
felonies, as well as the sentences imposed after his probation for prior
offenses was revoked. After searching the entire record, Forister’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. Forister 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, Forister’s convictions
and sentences are affirmed.
FACTS1 AND PROCEDURAL HISTORY
¶2 Around 1:25 a.m. on December 13, 2013, two uniformed
Phoenix police officers patrolling eastbound on police motorcycles were
stopped at an intersection when they observed a vehicle turn left from the
designated lane into the far-right lane of the intersecting three-lane road,
bypassing the two closer lanes. The officers followed the vehicle and
observed as it accelerated past the speed limit and drifted into another lane.
One of the officers initiated a stop of the vehicle by activating his emergency
lights, but the driver did not stop until the officer also activated his siren.
¶3 The officers made contact with the driver who identified
himself as Forister, noticed an odor of alcohol emanating from the driver’s
breath, and observed his eyes to be watery and bloodshot. The officers
initiated a DUI investigation based upon these observations. A horizontal
gaze nystagmus test indicated Forister had a blood alcohol concentration
1 “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. FORISTER
Decision of the Court
(BAC) of at least 0.08. A check of the status of Forister’s license indicated it
had been suspended and revoked.
¶4 Forister was arrested and transported to a DUI processing van
where another officer obtained his consent for a blood draw, which was
performed at 2:28 a.m. Subsequent testing at the Phoenix Crime Lab
revealed Forister’s BAC was 0.166.
¶5 At trial, a representative from the Motor Vehicle Department
testified Forister’s privilege to drive in Arizona had been suspended and
revoked at the time of the incident and that Forister had been notified of the
actions taken against his driver’s license. She further testified Forister’s
motor vehicle record contained two prior DUI convictions — one for an
offense committed on December 17, 2008, and one for an offense committed
on February 27, 2009.
¶6 At the close of the State’s evidence, Forister’s counsel made
an unsuccessful motion for judgment of acquittal pursuant to Arizona Rule
of Criminal Procedure 20(a). Forister’s treating gastroenterologist then
testified Forister has a history of stomach problems, including abdominal
pain, diarrhea, inflammatory bowel disease, acid reflux, and symptoms of
Crohn’s disease. He also testified x-rays revealed Forister had previously
undergone abdominal surgery. The doctor concluded these conditions
could have affected Forister’s BAC at the time of the incident.
¶7 Forister also testified on his own behalf, stating that he made
a wide left turn on the night in question because he was going to enter the
freeway on the right side of the road ahead. He denied exceeding the speed
limit and claimed his vehicle always swayed back and forth because it was
outfitted for off-road travel. He admitted he consumed alcohol at a
fundraiser earlier in the evening. Forister also admitted two prior felony
DUI convictions and knowing his license was either suspended or revoked.
¶8 The jury found Forister guilty as charged and the aggravating
circumstances — that Forister was on probation at the time of the offense
and had two prior felony convictions — proven. The trial court sentenced
Forister as a non-dangerous, repetitive offender to concurrent presumptive
terms of imprisonment of ten years for each count of aggravated DUI. The
court revoked Forister’s probation on the prior offenses and sentenced him
to presumptive terms of 2.5 years, to run concurrently with each other and
consecutive to the DUI sentences. The court also gave Forister credit for
ninety-three days of presentence incarceration. Forister timely appealed,
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STATE v. FORISTER
Decision of the Court
and we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.)
sections 12-120.21(A)(1),2 13-4031, and -4033(A)(1).
DISCUSSION
¶9 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 aggravated DUI if the person
“while under the influence of intoxicating liquor or drugs . . . [c]ommits a
violation of [A.R.S. §§] 28-1381, 28-1382 or [28-1383] while the person’s
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). A person
is also guilty of aggravated DUI if, “[w]ithin a period of eighty-four months
[he] commits a third or subsequent violation of [A.R.S. §§] 28-1381, 28-1382
or [28-1383].” A.R.S. § 28-1383(A)(2). Based upon the record, sufficient
evidence was presented upon which a jury could determine beyond a
reasonable doubt Forister was guilty of the charged DUI offenses.
¶10 All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. Forister was represented by counsel
at all stages of the proceedings and was present at all critical stages except
for one morning of one day of trial, for which his 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, Forister was given an opportunity 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. §§ 13-703(C), (J), -708(C).
CONCLUSION
¶11 Forister’s convictions and sentences are affirmed. Defense
counsel’s obligations pertaining to Forister’s representation in this appeal
have ended. Defense counsel need do no more than inform Forister of the
outcome of this appeal and his 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).
2 Absent material changes from the relevant date, we cite a statute’s
current version.
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STATE v. FORISTER
Decision of the Court
¶12 Forister has thirty days from the date of this decision to
proceed, if he 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 Forister
thirty days from the date of this decision to file an in propria persona motion
for reconsideration.
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