State v. Riggins ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
JOHN RIGGINS, Appellant.
No. 1 CA-CR 20-0594
FILED 12-21-2021
Appeal from the Superior Court in Maricopa County
No. CR2018-001854-001
The Honorable Warren J. Granville, Judge Retired
The Honorable Rosa Mroz, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Lawrence S. Matthew
Counsel for Appellant
STATE v. RIGGINS
Decision of the Court
MEMORANDUM DECISION
Chief Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Samuel A. Thumma joined.
C A T T A N I, Chief Judge:
¶1 John Riggins appeals his conviction of aggravated driving
under the influence and the resulting sentence. Riggins’s counsel filed a
brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State
v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent search of the
record, he found no arguable question of law that was not frivolous.
Riggins filed a supplemental brief raising four claims of error, which we
address below. Counsel asks this court to search the record for reversible
error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing
the record, we affirm Riggins’s conviction and sentence.
FACTS AND PROCEDURAL BACKGROUND
¶2 One evening in December 2017, Arizona Department of
Public Safety Trooper Valdez pulled over a car with one headlight out after
it made a wide left turn. When the trooper approached, a cloud of smoke
smelling like burnt marijuana roiled out as the driver’s window rolled
down. Riggins, who was in the driver’s seat, “nodded no” when the trooper
asked if he had a driver’s license. Motor Vehicle Division records
confirmed that Riggins had no Arizona driver’s license and that his driving
privilege had been suspended in February 2011 (with notice given) and had
not been reinstated since.
¶3 When Trooper Valdez asked Riggins if he had been smoking
marijuana, Riggins “nodded yes” and said he had been smoking in the car.
The single passenger in the car also showed signs of impairment. Riggins
stepped out of the car at the trooper’s request, then went to sit on the trunk.
Trooper Valdez did not see Riggins smoke or ingest anything after pulling
him over. Riggins was taken to metro booking where DPS Trooper Jones,
a qualified phlebotomist, drew Riggins’s blood. His blood tested positive
for 3.0 ng/ml of THC, the psychoactive component of marijuana.
¶4 The State charged Riggins with two counts of aggravated
DUI: (1) driving while impaired while his privilege to drive was suspended,
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STATE v. RIGGINS
Decision of the Court
see A.R.S. §§ 28-1381(A)(1), -1383(A)(1), and (2) driving with any drug
defined in § 13-3401 or its metabolite in his body while his privilege to drive
was suspended, see A.R.S. §§ 28-1381(A)(3), -1383(A)(1). Riggins was
released on bond and later failed to appear for trial, which proceeded in his
absence. The jury hung on the first count but found him guilty of the
second.
¶5 Riggins was arrested on a bench warrant within a few weeks,
but sentencing was delayed for a year and a half to accommodate
proceedings on other charges pending against him and, later, due to
COVID restrictions. The superior court ultimately found that Riggins had
multiple historical prior felony convictions and sentenced him as a category
3 repetitive offender to a minimum term of 8 years’ imprisonment, with
credit for 668 days of presentence incarceration. Riggins timely appealed.
DISCUSSION
I. Riggins’s Supplemental Brief.
¶6 Riggins filed a supplemental brief challenging (1) the
admissibility of the blood test results, (2) the sufficiency of the evidence that
he was driving, (3) the sufficiency of the evidence that the THC was in his
system at the relevant time, and (4) the continuing viability of his conviction
after Arizona legalized marijuana.
¶7 First, Riggins argues that blood must be drawn within two
hours of a traffic stop for toxicology results to be admissible at trial, and he
asserts that his blood was drawn 22 minutes too late. But Riggins offers no
authority for a two-hour blood-draw time limit. A different type of DUI
requires proof of blood alcohol concentration above a certain threshold
“within two hours of driving,” see A.R.S. § 28-1381(A)(2), but even there,
the blood draw need not occur within two hours as long as BAC at the
relevant time can be calculated reliably, such as by retrograde
extrapolation. See, e.g., State ex rel. Montgomery v. Miller, 234 Ariz. 289, 297–
304, ¶¶ 16–54 (App. 2014).
¶8 Next, Riggins contests the sufficiency of the evidence to
support his conviction. Substantial evidence may be direct or
circumstantial and is “such proof that reasonable persons could accept as
adequate and sufficient to support a conclusion of defendant’s guilt beyond
a reasonable doubt.” State v. West, 226 Ariz. 559, 562, ¶ 16 (2011) (citation
omitted). Here, although Riggins asserts that he was not driving and was
instead the passenger in the car, Trooper Valdez testified that he
approached the driver’s side window within seconds after pulling the car
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STATE v. RIGGINS
Decision of the Court
over and saw Riggins in the driver’s seat. Riggins offered no contrary
evidence at trial. Similarly, although Riggins asserts that he ate two grams
of marijuana after getting out of the car, meaning the THC detected in his
blood might not have been in his system while driving, Trooper Valdez
testified that did not see Riggins consume marijuana after pulling him over,
including while Riggins walked to the back of the car. Again, Riggins
offered no contrary evidence at trial.
¶9 Finally, Riggins argues that because marijuana is now legal in
Arizona, his conviction of driving with THC in his body (but without proof
of impairment) was invalid. In November 2020, Arizona voters approved
an initiative legalizing limited adult possession and use of marijuana. See
A.R.S. §§ 36-2850 to -2865. One provision restricts conviction of DUI based
on presence of marijuana or its metabolites under § 28-1381(A)(3) to “only
if the person is also impaired to the slightest degree.” See A.R.S. § 36-
2852(B). Here, the jury hung on the count alleging that Riggins was driving
while impaired to the slightest degree, see A.R.S. § 28-1381(A)(1), but
convicted him based on presence of THC (a component of marijuana) in his
system while driving, see A.R.S. § 28-1381(A)(3). But even assuming
Riggins might prevail under § 36-2852(B) as it stands today, that provision
was not adopted until November 2020 and did not include a retroactivity
clause, and here, Riggins committed the offense in December 2017 and was
found guilty by a jury in June 2019. Cf. A.R.S. § 1-244 (“No statute is
retroactive unless expressly declared therein.”); A.R.S. § 36-2862(A), (G)
(permitting expungement of certain marijuana-possession convictions (or
dismissal of pending cases) for conduct occurring before the effective date
of marijuana legalization, but not including marijuana-based DUI under
§ 28-1381(A)(3)).
II. Fundamental Error Review.
¶10 We have read and considered counsel’s brief and have
reviewed the record for reversible error. See Leon, 104 Ariz. at 300. We find
none.
¶11 Riggins was represented by counsel at all stages of the
proceedings against him. Riggins was not present for trial, but he had
actual knowledge of the time and date set, had been informed of his right
to be present, had been warned that the proceedings could go forward
without him, and never offered an excuse to show that his absence had not
been voluntary. See Ariz. R. Crim. P. 9.1; State v. Reed, 196 Ariz. 37, 38–39,
¶ 3 (App. 1999); State v. Sainz, 186 Ariz. 470, 473 (App. 1996). The record
reflects that the superior court afforded Riggins all his constitutional and
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STATE v. RIGGINS
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statutory rights and that the proceedings were conducted in accordance
with the Arizona Rules of Criminal Procedure. The court conducted
appropriate pretrial hearings, and the evidence presented at trial was
sufficient to support the jury’s verdict. Riggins’s sentence falls within the
range prescribed by law, with proper credit given for presentence
incarceration.
CONCLUSION
¶12 Riggins’s conviction and sentence are affirmed. After the
filing of this decision, defense counsel’s obligations pertaining to Riggins’s
representation in this appeal will end after informing Riggins of the
outcome of this appeal and his future options, unless counsel’s review
reveals an issue appropriate for submission to the Arizona Supreme Court
by petition for review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). On
the court’s own motion, Riggins has 30 days from the date of this decision
to proceed, if he desires, with a pro se motion for reconsideration or petition
for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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