State v. Mowers ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
NORA COLEEN MOWERS, Appellant.
No. 1 CA-CR 19-0431
FILED 11-17-2020
Appeal from the Superior Court in Maricopa County
No. CR2015-125783-001
The Honorable Julie A. LaFave, Judge Pro Tempore
VACATED AND REMANDED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
MEMORANDUM DECISION
Judge David B. Gass delivered the decision of the Court, in which Presiding
Judge Jennifer M. Perkins and Judge Michael J. Brown joined.
STATE v. MOWERS
Decision of the Court
G A S S, Judge:
¶1 Nora Coleen Mowers appeals her convictions for aggravated
driving under the influence (DUI). Mowers argues the convictions should
be vacated because the superior court improperly allowed the results of a
breathalyzer test into evidence. Because the superior court abused its
discretion when it allowed the test results into evidence, and the State has
not met its burden of showing the error was harmless, we vacate both
convictions and remand this matter for further proceedings.
FACTUAL AND PROCEDURAL HISTORY
¶2 The State charged Mowers with driving, without a valid
driver’s license, while under the influence of intoxicating liquor or drugs
(impaired to the slightest degree) (count 1) and driving with a blood-
alcohol concentration (BAC) of 0.08 or more (count 2). See A.R.S. §§ 28-1381
to -1383. The charges stemmed from a two-vehicle collision in Phoenix.
¶3 When Officer Timothy Mazich arrived at the scene, he found
“two vehicles in the roadway that had obviously been involved in a
collision.” A man, later identified as B.S., “was standing right at the accident
scene in the roadway by the two vehicles.” After asking B.S. who was
driving the vehicles, Mazich spoke to Mowers, who was standing near a
retaining wall on the side of the road. Mowers said she was driving out of
“the Walmart parking lot to make a left turn [when] she was struck by a
vehicle that was coming northbound.” Mazich also spoke with D.M., the
second driver. The physical evidence and D.M.’s explanation of the
accident corroborated Mowers’s version of the events.
¶4 Mazich then asked Mowers for her driver’s license. Mowers
initially said her license was in the vehicle and provided Mazich with her
name and date of birth. Mazich performed a record check but could not
locate a valid driver’s license matching the information Mowers provided.
After several additional attempts to verify the information Mowers
provided, Mazich asked her “to be honest” with him. Mowers then said her
driver’s license “had been revoked.”
¶5 As he approached Mowers to place her under arrest, Mazich
“smelled an odor of alcohol coming from her breath.” Mazich asked if she
had been drinking and she admitted to drinking four beers. Mazich then
called Officer Florin Bohatir to assist with a DUI investigation. Bohatir also
noted the smell of alcohol coming from Mowers and asked if she would
consent to a field sobriety test. Though Mowers agreed, she appeared to
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have injured her ankle in the collision, making her a “medical rule-out.”
Bohatir, therefore, performed a horizontal gaze nystagmus (HGN) test
instead of the standard field sobriety tests. HGN is a neurological
dysfunction causing involuntary twitching of the eye and can be caused by
alcohol consumption. Mowers demonstrated six cues during the test,
indicating a BAC greater than the legal limit. Bohatir then arrested Mowers
and transported her to a police substation for DUI processing.
¶6 At the substation, Mowers consented to an alcohol-breath test
conducted by Officer Michael Chase. Chase began by asking Mowers a few
of biographical questions and explaining her Miranda rights. See Miranda v.
Arizona, 384 U.S. 436 (1966). Throughout his interaction with Mowers,
Chase noted her “eyes were watery and bloodshot” and she smelled of
alcohol. Chase performed two statutorily-required, alcohol-breath tests on
Mowers using an Intoxilyzer 8000. See A.R.S. § 28-1323.A.3. The first test
showed Mowers’s BAC was 0.221, and the second showed a result of 0.215.
¶7 On the first day of trial, the State called Chase to testify about
Mowers’s breath-test results. Chase described his training and experience,
including his certification to operate the Intoxilyzer 8000. He explained how
“the machine checks itself” with a known substance and does “a couple air
blanks to make sure everything’s flushed out” before and after each subject
test “[t]o make sure it’s a fair and accurate test.” When the test is complete,
the Intoxilyzer 8000 prints two copies of a “ticker tape” showing the results
of both the self-check and subject tests along with a notification of whether
the overall test was successfully completed. Chase then told the jury the
procedure he followed when administering the test to Mowers, including
the use of an approved operational checklist. Chase never said whether the
machine displayed the self-check or the successful completion message.
¶8 To lay foundation for Mowers’s test results, the State showed
Chase two exhibits. The first (Exhibit 4) was a photocopy of the Intoxilyzer
8000 “ticker tape” printout from Mowers’s tests. Because Exhibit 4 was
largely illegible, the State next showed Chase Exhibit 5, a later “reprint”
showing the results of Mowers’s breath test and the machine’s self-
calibration checks. When the State asked Chase for the specific results
shown on Exhibit 5, Mowers objected.
¶9 Mowers argued Exhibit 5 lacked the statutorily-required
certification language, making it inadmissible. See A.R.S. § 28-1327.B.
Without Exhibit 5, Mowers argued, the State had not met the foundational
requirements for admissibility of the breath-test results. See A.R.S. § 28-
1323.A. The superior court sustained Mowers’s objection but said the State
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could use Exhibit 5 to refresh Chase’s recollection. Without attempting to
refresh Chase’s recollection, the State asked him for the results of Mowers’s
breath test and he answered.
¶10 After the superior court excused the jury for the day, Mowers
renewed her objection to Chase’s testimony about the breath-test results.
Specifically, she argued the exclusion of Exhibit 5 meant the State had no
proof the machine used in her test was operating correctly and “it was
improper for [Chase] to talk about the results before all of [the foundational
requirements] have been met.” Further, “because the results have been
improperly admitted,” Mowers moved for a mistrial.
¶11 The superior court denied the motion, specifically finding
“the State has met the requirements of 28-1323 for the purpose of the
testimony regarding the results all the way, 1 through 5.” The superior
court went on to say Chase could testify to the breath-test results but, unless
the State provided “the appropriate certification under [§ 28-]1327,” Exhibit
5 would “not be sent to the jury.” The State never provided the certification.
¶12 The following day, the State called Donald Stenberg, a
toxicologist with the Phoenix Crime Lab. Stenberg said the crime lab is
responsible for maintaining the Intoxilyzer 8000 machines. When asked
how often the machines are checked, he said “There’s -- I believe I said it’s
a 30- to 31-day check. So if it’s not checked every 31 days, the instrument
will lock out. There’s also a 90-day check that’s supposed to be done on it
as well.” Later, when asked about the Intoxilyzer 8000’s calibration and
potential margin of error, Stenberg responded “That’s something that
you’d have to ask the people who calibrate the instrument. That’s not me.”
Stenberg never discussed the maintenance or calibration of the specific
Intoxilyzer 8000 used to test Mowers.
¶13 At the conclusion of the State’s case-in-chief, Mowers moved
for acquittal under Rule 20 of the Arizona Rules of Criminal Procedure. The
superior court denied the motion, and the jury found Mowers guilty on
both counts. Mowers then filed a renewed Rule 20 motion. Following
arguments, the superior court again denied Mowers’s motion. The superior
court sentenced Mowers to concurrent four-month terms of imprisonment
for each count, with one-day presentence incarceration credit, and two-
years’ supervised probation following her release from prison.
¶14 Mowers timely appealed. This court has jurisdiction under
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031 and
-4033.A.1.
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ANALYSIS
I. The State failed to prove an essential element of each charge
against Mowers.
¶15 Count 1 against Mowers required the State to prove, beyond
a reasonable doubt, she was: (1) driving a vehicle; while (2) under the
influence of intoxicating liquor, and (3) impaired to the slightest degree; (4)
her driver’s license was suspended or revoked at the time of driving; and
(5) she knew, or should have known, her license was suspended or revoked
at the time. See A.R.S. §§ 28-1381.A.1 (“impaired to the slightest
degree”); -1383.A.1 (license is “suspended, canceled, revoked or refused”);
State v. Williams, 144 Ariz. 487, 489 (1985) (driving without license requires
culpable mental state).
¶16 Similarly, count 2 required the State to prove, beyond a
reasonable doubt, Mowers was: (1) driving a vehicle; (2) had a BAC of 0.08
or more within two hours of driving; (3) her BAC resulted from drinking
alcohol before, or while, driving; (4) her driver’s license was suspended or
revoked at the time of driving; and (5) she knew, or should have known,
her license was suspended or revoked at the time. See A.R.S. §§ 28-1381.A.2
(“alcohol concentration of 0.08 or more within two hours of
driving”); -1383.A.1; Williams, 144 Ariz. at 489.
¶17 At trial, the State sought to prove the second and third
elements of each charge by introducing Mowers’s breath-test results. The
State then called Stenberg, the crime-lab toxicologist, who testified “all
persons regardless of tolerance are impaired to operate a motor vehicle at a
.08 [BAC].” Stenberg also performed a “retrograde extrapolation,” using
Mowers’s breath-test results, to determine what her BAC was within two
hours of the collision.
¶18 This court analyzes the statutory requirements de novo but
reviews the facts established at trial in the light most favorable to sustaining
the verdict. See State v. Cope, 241 Ariz. 323, 324, ¶ 5 (App. 2016); State v. Felix,
237 Ariz. 280, 283, ¶ 2 (App. 2015).
A. The superior court abused its discretion when it allowed
Chase to testify about the results of Mowers’s alcohol-
breath test.
¶19 Mowers argues the superior court abused its discretion by
allowing Chase to testify about her breath-test results when the State had
not met subsection 28-1323.A’s foundational requirements. A superior
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STATE v. MOWERS
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court abuses its discretion when its reasoning is legally incorrect, clearly
untenable, or otherwise constitutes a denial of justice. See State v. Penney,
229 Ariz. 32, 34, ¶ 8 (App. 2012). Specifically, Mowers argues the superior
court erred in admitting the test results because State failed to establish the
Intoxilyzer 8000 “used to conduct [her] test was in proper operating
condition.” See A.R.S. § 28-1323.A.5. We agree.
¶20 “A proponent of a breath test . . . can offer the test into
evidence by utilizing either the statutory method, established in section 28–
[1323] or the rules of evidence method, governed primarily by Rule 702,
Arizona Rules of Evidence.” See State ex rel. McDougall v. Johnson, 181 Ariz.
404, 407 (App. 1994) (citing the predecessor statute to § 28-1323). When a
party seeks to admit breath-test results “without testimony from an expert
witness, the requirements of the statute must be scrupulously met so that there
will be a uniform, statewide basis of testing to vouch for accuracy and
reliability.” See id. at 408 (emphasis original) (quotation omitted).
¶21 Subsection 28-1323.A lists five foundational elements for the
admission of breath-test results. Mowers admits the State satisfied the first
four requirements. Her argument centers on the fifth, which requires the
proponent to establish:
The device used to conduct the test was in proper operating
condition. Records of periodic maintenance that show that the
device was in proper operating condition are admissible in
any proceeding as prima facie evidence that the device was in
proper operating condition at the time of the test. Calibration
checks with a standard alcohol concentration solution bracketing
each person’s duplicate breath test are one type of records of periodic
maintenance that satisfies the requirements of this section. The
records are public records.
A.R.S. § 28-1323.A.5 (emphasis added). The State argues it laid proper
foundation for the fifth requirement based on the calibration checks
provision. See id.
¶22 To satisfy subsection 28-1323.A.5, the State sought to admit
Exhibit 5, which shows “each individual subject test . . . bracketed by
calibration checks and error blanks.” Yet Exhibit 5 was not admitted. And
though the superior court said Chase could “testify as to what [Exhibit 5] is
if it supports and reflects his recollection of the test and whatever he put in
his report,” Chase gave no such testimony. Rather, following discussion of
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Mowers’s objection, the State simply asked Chase “what were the results
[of Mowers’s breath test]?”
¶23 On appeal, the State argues “Chase would have laid foundation
for Exhibit 5 under the rules of evidence.” (Emphasis added). According to
the State, because Chase “possessed the knowledge to testify that Exhibit 5
was what the State claimed it to be,” the superior court should have allowed
Exhibit 5 into evidence. See Ariz. R. Evid. 901(b)(1). Yet the State failed to
preserve this objection below and did not file a cross-appeal. Accordingly,
this argument is not properly before us and cannot be considered. See State
v. Dawson, 164 Ariz. 278, 282 (1990) (“the [S]tate’s failure to timely appeal
or cross-appeal acts as a jurisdictional bar to its raising the error in
defendant’s appeal”).
¶24 To be sure, Chase did testify in general terms about the self-
calibration process the Intoxilyzer 8000 completes with each examination.
Yet he never said whether the specific machine used to test Mowers
successfully completed that process or whether the machine displayed a
successful completion message after he tested Mowers. Further, on cross-
examination Chase was unable to say how frequently the machine
underwent “periodic maintenance,” going on to disclaim any involvement
“in the maintenance of that instrument.” Stenberg, the State’s toxicology
witness, was equally unhelpful. He too spoke in general terms of
Intoxilyzer 8000 maintenance but denied involvement in the specific
machine’s calibration. Cf. State v. White, 155 Ariz. 452, 457–58 (App. 1987)
(admitting breath-test results after officer “testified that he conducted
calibration checks on the machine”).
¶25 Put simply, the State presented no records or testimony to
establish the Intoxilyzer 8000 used to test Mowers “was in proper operating
condition.” See A.R.S. § 28-1323.A.5. Allowing Chase to testify about
Mowers’s breath-test results, therefore, was an abuse of discretion.
B. The superior court’s error was not harmless.
¶26 This court reviews improperly admitted evidence for
harmless error. See State v. Bolton, 182 Ariz. 290, 303 (1995). Under harmless
error, the question “is not whether, in a trial that occurred without the error,
a guilty verdict would surely have been rendered, but whether the guilty
verdict actually rendered in this trial was surely unattributable to the error.”
Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (emphasis original). “The State
has the burden of convincing us that any error was harmless.” State v.
Anthony, 218 Ariz. 439, 446, ¶ 39 (2008).
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STATE v. MOWERS
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¶27 Here, the State failed to meet its burden. Chase’s “testimony
[regarding the breath-test results] was highly incriminating, had a clear
bearing on the charges against [Mowers], and likely affected the verdict.”
See State v. Bass, 198 Ariz. 571, 581, ¶ 44 (2000). As to the count 2, test results
are required to prove an element of the offense. See A.R.S. § 28-1381.A.2.
Without the results, a jury could not convict Mowers.
¶28 As to count 1, the State only needed to show Mowers was
impaired to the slightest degree. See A.R.S. § 28-1381.A.1. Admission of the
test results, standing alone, may have constituted harmless error but for the
State’s use of them to prove impairment. The State repeatedly referred to
the breath-test results “throughout trial, and in the State’s closing
argument, the prosecutor referred to the [breath-test results] at least
[twelve] times.” See State v. Bronson, 204 Ariz. 321, 327, ¶ 33 (App. 2003).
The State drew a clear connection between the breath-test results and
Mowers’s potential impairment, telling the jury “she was impaired to the
slightest degree at the time of driving by virtue of being over a .08 as you
heard by -- heard from Donald Stenberg.” (Emphasis added).
¶29 In short, because we cannot sever the impact of the breath-test
results on the jury, we are not “satisfied beyond a reasonable doubt that the
error did not impact the verdict.” See Bass, 198 Ariz. at 580, ¶ 39. We must,
therefore, vacate both convictions.
II. The superior court did not abuse its discretion when it allowed
Mazich to testify about Mowers’s incriminating statements.
¶30 Mowers also argues the superior court erred when it allowed
Mazich to testify that Mowers admitted to driving at the time of the
accident, to consuming four beers before driving, and knowing her driving
privileges had been revoked. Mowers specifically argues the State failed to
present sufficient evidence beyond her own words as required by the corpus
delicti doctrine. Because the improper admission of evidence at trial is
dispositive, we need not address her corpus delicti argument. We choose,
however, to address it to avoid confusion on remand. See Nayeri v. Mohave
County, 247 Ariz. 490, 494, ¶ 15 (App. 2019).
¶31 “The corpus delicti doctrine ensures that a defendant’s
conviction is not based upon an uncorroborated confession or incriminating
statement.” State v. Morris, 215 Ariz. 324, 333, ¶ 34 (2007) (italics added).
The doctrine “requires that, as a condition of the admissibility of a
defendant’s incriminating statements, the State present evidence
independent of the statements sufficient to raise a reasonable inference” the
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STATE v. MOWERS
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crime charged actually occurred. See State v. Barragan-Sierra, 219 Ariz. 276,
281, ¶ 12 (App. 2008). Under this doctrine, “[o]nly a reasonable inference of
the corpus delicti need exist before a confession may be considered, and
circumstantial evidence suffices to support the inference.” See State v.
Carlson, 237 Ariz. 381, 387, ¶ 8 (2015) (quotation omitted). Here, the State
met its burden.
¶32 Mowers’s first statement, explaining she was driving and
how the collision occurred, was corroborated by the physical evidence and
the explanation of the accident by D.M., the second driver. As the State
rightly notes, “To the extent that a factual question existed on whether
Mowers or [B.S.] had driven the car, it was not an issue of corpus delicti but
a factual issue to be decided by the jury.” Mowers second statement, that
she “had four beers,” was corroborated by the smell of alcohol noted by
Mazich, Bohatir, and Chase. Finally, the suspension of her driving
privileges was supported by the absence of any driver’s license in Arizona,
her having a non-operator identification, and the testifying officer’s
understanding her privileges had been revoked several times in Illinois.
¶33 Aside from Mowers’s confession, the foregoing constitutes
independent corroborating evidence the crimes charged occurred. See
Barragan-Sierra, 219 Ariz. at 281, ¶ 12. The superior court, therefore, did not
abuse its discretion in admitting Mowers’s incriminating statements.
CONCLUSION
¶34 For the reasons stated above, we vacate Mowers’s convictions
and sentences and remand the matter to the superior court for further
proceedings consistent with this decision.
AMY M. WOOD • Clerk of the Court
FILED: AA
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