State of Arizona v. Antone Alex Gill , 234 Ariz. 186 ( 2014 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
ANTONE ALEX GILL,
Appellant.
No. 2 CA-CR 2013-0156
Filed March 3, 2014
Appeal from the Superior Court in Pima County
No. CR20104278001
The Honorable Deborah Bernini, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee
West, Elsberry, Longenbaugh & Zickerman, PLLC, Tucson
By Anne Elsberry
Counsel for Appellant
OPINION
Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Espinosa concurred.
STATE v. GILL
Opinion of the Court
E C K E R S T R O M, Judge:
¶1 Following a jury trial, appellant Antone Gill was
convicted of criminal damage and two counts of aggravated driving
under the influence of an intoxicant (DUI). He was sentenced to
concurrent prison terms, the longest of which were three years. On
appeal, Gill argues the doctrine of corpus delicti required the trial
court to grant his motions for judgment of acquittal made pursuant
to Rule 20, Ariz. R. Crim. P.1 For the following reasons, we affirm
his convictions and sentences but vacate portions of the criminal
restitution order entered at sentencing.
Factual and Procedural Background
¶2 We view the evidence presented at trial in the light
most favorable to upholding the verdicts. See State v. Chappell, 225
Ariz. 229, n.1, 236 P.3d 1176, 1180 n.1 (2010). In the early morning
hours of December 16, 2010, law enforcement officers from the
Tucson Police Department responded to a report of a vehicular
accident in a residential neighborhood caused by “a possible drunk
driver.” The officers discovered that a pickup truck had collided
with a parked boat, causing over $5,000 in damages to the boat. No
one was in or around the truck when the officers responded to the
scene, but they learned that Gill lived several houses away.
¶3 The officers went to Gill’s residence and found him
awake and in the process of showering. His girlfriend, Julie,
testified that Gill had been out that night, she had heard him come
home, and then, about five minutes later, she had heard the police
1We do not address Gill’s passing assertion that the trial court
also erred in denying his motion for a mistrial, as he has failed to
develop any argument on this issue in his appellate briefs. See Ariz.
R. Crim. P. 31.13(c)(1)(vi) (opening brief must include “[a]n
argument which shall contain the contentions of the appellant with
respect to the issues presented, and the reasons therefor, with
citations to the authorities, statutes and parts of the record relied
on”); State v. Bolton, 182 Ariz. 290, 298, 896 P.2d 830, 838 (1995)
(finding waiver due to insufficient argument on appeal).
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STATE v. GILL
Opinion of the Court
knocking at the door. When the officers spoke with Gill, they noted
he slurred his speech, swayed while standing, staggered while
walking, and emanated a strong odor of intoxicants. Gill admitted
he had been drinking and driving the truck, and he told the officers
he thought he had hit a curb. Julie testified the truck belonged to
Gill’s deceased friend and Gill sometimes kept it at his house when
he “needed to use it for work or something.” She removed Gill’s
tools and property from the truck before it was towed away.
¶4 At the close of the evidence, Gill moved for judgment of
acquittal based on the doctrine of corpus delicti, claiming no evidence
except his own statements established that he had been driving or
that a DUI had occurred. The trial court denied the motion as to the
charges at issue here. The jury subsequently found him guilty of
aggravated DUI based on his driving with a suspended, revoked, or
restricted license, see A.R.S. §§ 28-1381(A)(1), 28-1383(A)(1),
aggravated DUI with at least two prior DUI convictions, see §§ 28-
1381(A)(1), 28-1383(A)(2), and criminal damage in an amount of at
least $2,000 but less than $10,000, see A.R.S. § 13-1602(A)(1), (B)(3).2
The court denied Gill’s renewed Rule 20 motion, and this timely
appeal followed the entry of judgment and sentence.
Rule 20
¶5 On appeal, Gill again claims the evidence was
insufficient to sustain his convictions because the state failed to
establish corpus delicti. “[T]o establish corpus delicti there must
appear some proof of a certain result, and that some one is
criminally responsible therefor.” State v. Weis, 92 Ariz. 254, 260, 375
P.2d 735, 739 (1962). This common law rule prevents a defendant
from being convicted “based upon ‘an uncorroborated confession
without independent proof of the corpus delicti, or the body of the
crime.’” State v. Rubiano, 214 Ariz. 184, ¶ 6, 150 P.3d 271, 272-73
(App. 2007), quoting State v. Morgan, 204 Ariz. 166, ¶ 15, 61 P.3d 460,
2We cite the versions of the criminal statutes in effect at the
time of Gill’s offenses. See 2009 Ariz. Sess. Laws, ch. 144, § 2
(criminal damage) and ch. 124, § 1 (DUI); 2008 Ariz. Sess. Laws,
ch. 286, § 15 (aggravated DUI).
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STATE v. GILL
Opinion of the Court
464 (App. 2002). In a DUI case, this means that the state must show
independent evidence, beyond the defendant’s own pretrial
statements, that the crime of DUI has occurred. State ex rel.
McDougall v. Superior Court, 188 Ariz. 147, 149, 933 P.2d 1215, 1217
(App. 1996). But “corpus delicti can be established by circumstantial
evidence alone,” State v. Butler, 82 Ariz. 25, 29, 307 P.2d 916, 919
(1957), or through “independent corroboration of the defendant’s
statements.” Chappell, 225 Ariz. 229, ¶ 9, 236 P.3d at 1181.
¶6 Here, circumstantial and independent evidence
corroborated Gill’s statements and established that the crime of DUI
actually had occurred. First, the nature of the car accident suggested
it was the result of someone driving while “impaired to the slightest
degree” by alcohol. § 28-1381(A)(1). The accident happened at
approximately 1:30 a.m. in a residential neighborhood, it involved a
parked vehicle, and the driver responsible for the collision had fled
the scene. These circumstances suggested the accident was caused
by “a possible drunk driver,” as an unknown declarant had
apparently reported to the police. When hearsay evidence like this
is not objected to at trial, it becomes competent evidence in the case.
See State v. McGann, 132 Ariz. 296, 299, 645 P.2d 811, 814 (1982).
¶7 Additionally, Julie reported that Gill sometimes used
the truck involved in the accident, and his property was in it at that
time. Gill was also away from home on the night of the collision and
returned to his house shortly before the police arrived. He was thus
near the place where the accident had occurred and visibly
intoxicated around the same time. This independent evidence
corroborated his confession that he had been drinking and driving
the vehicle involved in the accident.
¶8 Accordingly, we find the doctrine of corpus delicti
inapplicable here, as there was no shortage of evidence showing a
DUI had occurred. We likewise find no deficiency in the evidence
related to the criminal damage charge. The crime of criminal
damage was established, at least circumstantially, by the damage
that was caused to the victim’s boat as a result of the DUI offense.
See § 13-1602(A)(1) (proscribing reckless damage of another’s
property).
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STATE v. GILL
Opinion of the Court
¶9 In sum, whether we review the trial court’s ruling for an
abuse of discretion, see Chappell, 225 Ariz. 229, ¶ 8, 236 P.3d at 1181,
or de novo, see State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191
(2011), we find no error in the denial of the Rule 20 motions in this
case. And because we find no grounds for relief on the merits of
Gill’s claim, we need not address the state’s arguments that “the
corpus delicti doctrine has no place in Arizona law.”
Criminal Restitution Order
¶10 In resolving this appeal, we have independently
discovered an error concerning the criminal restitution order (CRO)
entered in this case. At Gill’s sentencing, in April 2013, the trial
court ordered him to pay a $25 indigent administrative assessment,
a $20 time payment fee, $400 in attorney fees, and $5,607.34 in victim
restitution. The court then reduced all “fees, assessments, and/or
restitution” to a CRO, “with no interest, penalties or collection fees
to accrue” during Gill’s incarceration. For the reasons set forth in
our recent opinion of State v. Cota, No. 2 CA-CR 2013-0185, ¶¶ 15-17
(Ariz. Ct. App. Feb. 25, 2014), the CRO is illegal and unauthorized
for all but the restitution amount. We therefore vacate the portion of
the CRO concerning fees and assessments. See id. ¶ 19. We do not
disturb the suspension of interest on the restitution balance during
Gill’s incarceration, even though the CRO is “‘illegally lenient’” in
this respect, because the state has not separately appealed this issue.
Id. ¶ 18, quoting State v. Holguin, 177 Ariz. 589, 592, 870 P.2d 407, 410
(App. 1993).
Disposition
¶11 For the foregoing reasons, we affirm Gill’s convictions
and sentences. We also affirm the CRO with respect to the $5,607.34
restitution award and the suspension of interest thereon, but we
vacate the remainder of the CRO.
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