State v. Dwyer

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ALICIA GENE DWYER, Appellant.
No. 1 CA-CR 15-0141
FILED 3-10-2016
Appeal from the Superior Court in Maricopa County
No. CR2013-102232-001
The Honorable Charles Donofrio III, 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 Kathryn L. Petroff
Counsel for Appellant
STATE v. DWYER
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Peter B. Swann joined.
J O N E S, Judge:
¶1 Alicia Dwyer appeals her convictions and sentences for two
counts of aggravated driving under the influence (DUI) and one count each
of aggravated assault and resisting arrest. After searching the entire record,
Dwyer’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. Dwyer filed a
supplemental brief in propria persona. After reviewing the record, we find
no error. Accordingly, Dwyer’s convictions and sentences are affirmed.
FACTS1 AND PROCEDURAL HISTORY
¶2 At 12:34 a.m. on January 12, 2013, a uniformed officer with the
Phoenix Police Department observed a vehicle traveling north on 32nd
Street at a high rate of speed. The officer observed the vehicle straddle the
lane marker, swerve abruptly to avoid striking a slower-moving vehicle,
and appear to hit a curb. The officer visually estimated the vehicle’s speed
at over one hundred miles per hour. The vehicle did not immediately stop
when the officer activated the lights and siren on his motorcycle but
eventually pulled into a residential driveway.
¶3 As the officer walked up to the vehicle, the engine revved, and
a woman later identified as Dwyer exited from the driver’s side and began
moving quickly toward the officer. Dwyer collided with the officer, fell
down, and crawled back into the driver’s side of the vehicle. With her feet
protruding through the open door, Dwyer began honking the horn with her
elbow, cursing, yelling for her mom and boyfriend, and reaching for
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. DWYER
Decision of the Court
something with her right hand. The officer advised Dwyer she was under
arrest and attempted to pull her out by her legs. From that position, Dwyer
kicked the officer and maintained her grip on the inside of the vehicle. With
the assistance of a second officer, Dwyer was finally removed.
¶4 Dwyer was placed in handcuffs, and the officers observed her
to have red watery eyes and slurred speech; she also smelled of alcohol.
The officer was unable to administer standard field sobriety tests because
Dwyer was combative, and she would not cooperate with a blood draw,
even after a warrant was obtained.
¶5 Dwyer’s blood was ultimately drawn successfully on the
second attempt. Subsequent testing indicated her blood alcohol
concentration (BAC) was 0.222 at the time of the draw at around 2:40 a.m.
A forensic scientist performed a retrograde extrapolation and testified
Dwyer’s BAC would have been between 0.211 and 0.234 within two hours
of when she was observed driving the vehicle. At trial, a representative
from the Motor Vehicle Department (MVD) testified Dwyer’s privilege to
drive in Arizona had been suspended and revoked at the time of the
incident and that MVD records reflected Dwyer was notified three times of
the actions taken against her driver’s license.
¶6 At the close of the State’s evidence, Dwyer’s counsel made an
unsuccessful motion for judgment of acquittal pursuant to Arizona Rule of
Criminal Procedure 20. Dwyer’s mother, Mary Jane, testified on Dwyer’s
behalf, reporting that she was eating ice cream in the kitchen of her home
when she saw Dwyer sitting in the passenger seat of the vehicle in the
driveway and talking on her cell phone. Then, three marked law
enforcement vehicles arrived. Mary Jane testified she saw two police
officers rush up to the vehicle, pull Dwyer out of the passenger seat by her
hair, and drag her down the driveway. According to Mary Jane, the officers
then threw Dwyer facedown into the rock landscaping where they
proceeded to punch and kick her for approximately eight minutes.
¶7 Mary Jane also reported that the driver’s side door of Dwyer’s
vehicle was “jammed shut” and could not be opened from either the inside
or outside; therefore, a person could only enter and exit the vehicle through
the passenger side door. When confronted with photographs of the vehicle,
taken immediately following Dwyer’s arrest, depicting the driver’s side
door open, Mary Jane testified she had “no idea” how the driver’s side door
had been opened. Dwyer did not testify.
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STATE v. DWYER
Decision of the Court
¶8 The jury found Dwyer guilty as charged. Dwyer voluntarily
admitted to one prior historical felony and that she was on felony probation
at the time of the offense. Dwyer was sentenced as a non-dangerous,
repetitive offender to concurrent presumptive terms of imprisonment of 4.5
years for each aggravated DUI, 2.25 years for aggravated assault, and 1.75
years for resisting arrest. She was also credited with fifty-one days of
presentence incarceration. Dwyer timely appealed, 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 In her supplemental brief, Dwyer does not challenge her
convictions for DUI and resisting arrest. Instead, she argues insufficient
evidence was presented to support her conviction of aggravated assault
upon the arresting officer because, she asserts, the evidence consisted only
of hearsay statements from the officers. “Hearsay is defined as an out-of-
court statement offered to prove the truth of the matter asserted.” State v.
Vasquez, 233 Ariz. 302, 306, ¶ 11 (App. 2013) (citing Ariz. R. Evid. 801(c);
State v. Roque, 213 Ariz. 193, 214, ¶ 70 (2006); and State v. Bass, 198 Ariz. 571,
577, ¶ 20 (2000)). The officers’ in-court statements regarding their
recollection of the events they personally witnessed are not hearsay. See
Aranda v. Cardenas, 215 Ariz. 210, 219, ¶ 34 (App. 2007) (explaining that a
witness’s statements based upon personal knowledge and made in court
are not hearsay) (citing Ariz. R. Evid. 602, 801(c)). And, these statements
are relevant to Dwyer’s guilt and are therefore admissible. See Ariz. R. Evid.
401 (stating evidence is relevant if it tends “to make a fact more or less
probable than it would be without the evidence; and . . . is of consequence
in determining the action”), 402 (stating relevant evidence is generally
admissible). That the jury apparently believed the officers’ testimony rather
than Dwyer’s mother’s is a province which we will not invade on appeal.
See State v. Bernstein, 237 Ariz. 226, 230, ¶ 18 (2015) (“[I]t is the jury’s
exclusive province to assess the weight and credibility of evidence.”) (citing
State v. Clemons, 110 Ariz. 555, 556-57 (1974)).
¶10 Dwyer also argues the officer lacked probable cause to initiate
a traffic stop. This contention is without merit. First, “an officer needs only
reasonable suspicion that a traffic violation has occurred to initiate a stop.”
State v. Sweeney, 224 Ariz. 107, 112, ¶ 16 (App. 2010) (citing Arizona v.
Johnson, 555 U.S. 323, 326 (2009)). Second, the officer testified he observed
2 Absent material changes from the relevant date, we cite a statute’s
current version.
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STATE v. DWYER
Decision of the Court
Dwyer driving over one hundred miles per hour on a surface street,
straddling the lane marker, possibly striking a curb, and swerving to avoid
collision with another vehicle. Each of these observations provided the
officer with reasonable suspicion that Dwyer had committed a traffic
violation and justified a stop of Dwyer’s vehicle. See A.R.S. §§ 28-693(A)
(prohibiting a person from operating a motor vehicle “in reckless disregard
for the safety of persons or property”), -695(A)(2) (prohibiting a person
from driving in a manner that poses “an immediate hazard to another
person or vehicle”), -701 (prohibiting operating a vehicle at a speed greater
than is reasonable and prudent), -729(1) (requiring a person to “drive a
vehicle as nearly as practicable entirely within a single lane”).
¶11 Furthermore, it is not clear that the arrest arose from a traffic
stop. Dwyer did not pull over when the officer activated his lights and
siren. Based upon the officer’s own observations, he had probable cause to
believe Dwyer violated A.R.S. §§ 28-622 (failure to comply with a police
officer) and -622.01 (unlawful flight from a pursuing law enforcement
vehicle), and separately justified Dwyer’s arrest once she arrived home. See
A.R.S. § 13-3883(A)(1) (“A peace officer, without a warrant, may arrest a
person if the officer has probable cause to believe . . . [a] felony has been
committed and probable cause to believe the person to be arrested has
committed the felony.”).
¶12 Finally, Dwyer argues her counsel failed to introduce
photographs and testimony that would have established reasonable doubt
as to her guilt of aggravated assault. A claim for ineffective assistance of
counsel may only be raised through a petition for post-conviction relief.
State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002) (“[I]neffective assistance of counsel
claims are to be brought in Rule 32 proceedings . . . [and] will not be
addressed by appellate courts regardless of merit.”). We therefore express
no opinion as to this contention.
¶13 Further 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
“[c]ommits a violation of [A.R.S.] § 28-1381, [A.R.S.] § 28-1382 or [A.R.S.
§ 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].”3
3 Dwyer was charged with and convicted of two violations of A.R.S.
§ 28-1383(A)(1): one for violating A.R.S. § 28-1381(A)(1) — driving “while
under the influence of liquor . . . [and] impaired to the slightest degree” —
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STATE v. DWYER
Decision of the Court
A.R.S. § 28-1383(A)(1). An assault occurs when a person “intentionally,
knowingly or recklessly caus[es] any physical injury to another person.”
A.R.S. § 13-1203(A)(1). The offense is aggravated if the defendant knows or
has reason to know the victim is a peace officer. A.R.S. § 13-1204(A)(8)(a).
And, a person commits resisting arrest by “intentionally preventing or
attempting to prevent a person reasonably known to him to be a peace
officer, acting under color of such peace officer’s official authority, from
effecting an arrest by . . . using or threatening to use physical force against
the peace officer or another.” A.R.S. § 13-2508(A)(1). Based upon the
record, sufficient evidence was presented upon which a jury could
determine beyond a reasonable doubt Dwyer was guilty of each of these
crimes.
¶14 All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. Dwyer was represented by 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); Ariz. R. Crim. P.
18.1(a). The record also reflects the jury was advised the State bore the
burden of proving the elements of each crime alleged beyond a reasonable
doubt. At sentencing, Dwyer 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. Additionally, the sentences
imposed were within the statutory limits.4 See A.R.S. §§ 13-703(B), (I),
-708(C).
CONCLUSION
¶15 Dwyer’s convictions and sentences are affirmed. Defense
counsel’s obligations pertaining to Dwyer’s representation in this appeal
have ended. Defense counsel need do no more than inform Dwyer of the
outcome of this appeal and his future options, unless, upon review, counsel
while her license was revoked for a prior DUI, and the other for violating
A.R.S. § 28-1381(A)(2) — driving with “an alcohol concentration of 0.08 or
more” — while her license was revoked for a prior DUI.
4 The sentencing minute entry erroneously states the offenses are non-
repetitive, but Dwyer was sentenced as a repetitive offender consistent with
the trial court’s oral pronouncement. See State v. Whitney, 159 Ariz. 476, 487
(1989) (“Oral pronouncement in open court controls over the minute
entry.”) (citing State v. Hanson, 138 Ariz. 296, 304-05 (App. 1983)).
Therefore, the sentence was correct.
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STATE v. DWYER
Decision of the Court
finds an issue appropriate for submission to our supreme court by petition
for review. State v. Shattuck, 140 Ariz. 582, 584-85 (1984).
¶16 Dwyer 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
Dwyer thirty days from the date of this decision to file an in propria persona
motion for reconsideration.
:ama
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