State v. Teran ( 2022 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
GEORGE TERAN, Appellant.
No. 1 CA-CR 21-0148
FILED 4-19-2022
Appeal from the Superior Court in Yuma County
No. S1400CR201800702
The Honorable David M. Haws, Judge
VACATED AND REMANDED IN PART;
AFFIRMED IN PART
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee
Yuma County Public Defender’s Office, Yuma
By Robert J. Trebilcock
Counsel for Appellant
OPINION
Vice Chief Judge David B. Gass delivered the opinion of the court, in which
Presiding Judge Paul J. McMurdie and Judge Angela K. Paton joined.
STATE v. TERAN
Opinion of the Court
G A S S, Vice Chief Judge:
¶1 George Teran appeals his convictions and the resulting
concurrent sentences for manslaughter and two counts of driving under the
influence (DUI). He does not appeal his conviction for possession of drug
paraphernalia. We vacate and remand his manslaughter conviction but
affirm his remaining convictions.
FACTUAL AND PROCEDURAL HISTORY
¶2 This court views the facts in the light most favorable to
sustaining the jury’s verdicts, resolving all reasonable inferences against
Teran. See State v. Felix, 237 Ariz. 280, 283, ¶ 2 (App. 2015).
¶3 Teran was driving when he struck and killed a victim as she
stepped off the median and started to cross the roadway. The victim and
two friends were walking along a red brick pathway that connected a canal-
access road and ran perpendicular to the roadway. The two friends stayed
in the median because they saw Teran approaching and were surprised the
victim stepped into the roadway. Teran was driving between 44 and 55
miles per hour (M.P.H.), and he did not brake or otherwise try to avoid the
collision. The posted speed limit was 40 M.P.H.
¶4 Immediately after the collision, Teran pulled over and called
911. He said he hit a pedestrian “crosswalking” when the pedestrian
“jumped in front of [him].” When officers later interviewed Teran, he said
he saw three or four girls “in the crosswalk . . . in the median . . . doing the
right thing” and he heard “stop, don’t go” when the victim “jumped in front
of [his] car.”
¶5 The interviewing officer noted Teran slurred his speech and
his eyes were “droopy.” Teran admitted to smoking marijuana two nights
before the accident and to having half an ounce of marijuana “wax” in his
backpack in his car. Officers drew a sample of Teran’s blood under a search
warrant. Subsequent testing revealed Teran’s blood sample contained a
blood concentration level of approximately 36 nanograms of Xanax per
milliliter and 14 nanograms of tetrahydrocannabinol (THC) per milliliter.
¶6 Xanax is a brand name for the drug alprazolam, a prescription
sedative. THC is the primary psychoactive component of cannabis. State ex
rel. Montgomery v. Harris, 234 Ariz. 343, 343, ¶ 1 n.1 (2014). Teran’s blood
sample also contained Carboxy-THC, a non-impairing metabolite of THC.
The superior court correctly instructed the jurors the presence of Carboxy-
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Opinion of the Court
THC does not show impairment. See id. at 347–48, ¶ 25 (affirming dismissal
of DUI charge because Carboxy-THC does not cause impairment).
¶7 A search of Teran’s car uncovered a partial Xanax pill in the
center console and a backpack containing two glass jars of a green leafy
substance together with the marijuana wax Teran described.
¶8 The State charged Teran with second-degree murder, two
counts of misdemeanor DUI (drugs), transportation of narcotic drugs for
sale, transportation of marijuana for sale, possession of a dangerous drug,
and possession of drug paraphernalia.
¶9 The first trial ended in a mistrial based on a disclosure issue.
Before Teran’s retrial, the superior court severed the counts for
transportation of narcotic drugs for sale and transportation of marijuana for
sale from the other charged offenses.
¶10 The jury found Teran not guilty of second-degree murder but
guilty of manslaughter as a lesser-included offense. As a result of the
manslaughter conviction, the jury did not consider the lesser-included
offense of negligent homicide. As for the remaining counts, the jury found
Teran guilty of both DUI charges and the possession of drug paraphernalia
charge, but not guilty of the possession of a dangerous drug charge. The
superior court imposed concurrent prison sentences, the longest being 10.5
years for the manslaughter conviction, with appropriate presentence
incarceration credit. Teran timely appealed. This court has jurisdiction
under article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 13-
4031 and 13-4033.A.1.
ANALYSIS
I. Jury Instructions
¶11 Teran challenges the superior court’s failure to instruct the
jury on three issues: (1) a crosswalk instruction; (2) “right-of-way”
instructions; and (3) a proposed lesser-included offense.
¶12 This court reviews the refusal to give a jury instruction for
abuse of discretion. State v. Hurley, 197 Ariz. 400, 402, ¶ 9 (App. 2000). An
abuse of discretion occurs when the superior court’s refusal to instruct the
jury on a particular point of law is “clearly untenable, legally incorrect, or
amount[s] to a denial of justice.” State v. Chapple, 135 Ariz. 281, 297 n.18
(1983), superseded by statute on other grounds. A defendant is generally
entitled to a jury instruction on any theory reasonably supported by the
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Opinion of the Court
evidence. State v. Johnson, 205 Ariz. 413, 417, ¶ 10 (App. 2003). “A set of
instructions need not be faultless; however, they must not mislead the jury
in any way and must give the jury an understanding of the issues.” State v.
Noriega, 187 Ariz. 282, 284 (App. 1996).
A. The “Crosswalk” Instruction
¶13 Teran first contends the superior court should have sua sponte
instructed the jury the victim was not in a crosswalk when the accident
occurred. The correct definition of a crosswalk is a question of law. But
whether the area in question was a crosswalk was a disputed factual issue
about which witnesses offered conflicting testimony. Teran’s requested
instruction would violate our constitution by having the superior court
comment impermissibly on the evidence. See Ariz. Const. art. 6, § 27
(“Judges shall not charge juries with respect to matters of fact, nor comment
thereon, but shall declare the law.”); see also State v. Rodriguez, 192 Ariz. 58,
64, ¶ 29 (1998) (superior court cannot “express an opinion as to what the
evidence proves” or “interfere with the jury’s independent evaluation of
that evidence”). The superior court did not err.
B. The “Right-of-Way” Instructions
i. Abuse of Discretion
¶14 Teran next argues the superior court erred by denying his
request to instruct the jury under A.R.S. §§ 28-792 and -793, which are traffic
code statutes describing the respective duties and rights of pedestrians and
drivers when pedestrians cross roadways within crosswalks or at
unmarked locations.
¶15 For drivers, Arizona’s “right-of-way” law says,
[I]f traffic control signals are not in place or are not in
operation, the driver of a vehicle shall yield the right-of-way,
slowing down or stopping if need be in order to yield, to a
pedestrian crossing the roadway within a crosswalk when the
pedestrian is on the half of the roadway on which the vehicle
is traveling or when the pedestrian is approaching so closely
from the opposite half of the roadway as to be in danger. A
pedestrian shall not suddenly leave any curb or other place of
safety and walk or run into the path of a vehicle that is so close
that it is impossible for the driver to yield.
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Opinion of the Court
A.R.S. § 28-792.A. For pedestrians, Arizona law says, “A pedestrian
crossing a roadway at any point other than within a marked crosswalk or
within an unmarked crosswalk at an intersection shall yield the right-of-
way to all vehicles on the roadway.” A.R.S. § 28-793.A.
¶16 “A party is entitled to an instruction on any theory reasonably
supported by the evidence[, but the superior] court generally is not
required to give a proposed instruction when its substance is adequately
covered by other instructions.” Rodriguez, 192 Ariz. at 61, ¶16 (internal
citations omitted). The critical inquiry is whether the given instructions,
considered as a whole, “adequately set forth the law applicable to the
case.” Id.¶17 Here, the superior court instructed the jury as to the definition
of a crosswalk. Though the instructions the superior court gave allowed the
jury to decide whether the collision area was a crosswalk, they left the jury
to speculate—without guidance in the instructions—about what a
reasonable driver would do depending on whether the pedestrian was or
was not in a crosswalk. No other instructions adequately covered the
respective duties of drivers when pedestrians are within or outside
crosswalks.
¶18 To be sure, a victim’s fault is not generally at issue in criminal
prosecutions. But cf. A.R.S. § 13-404 (the self-defense justification requires
the jury to consider whether the victim used or attempted to use “unlawful
physical force”). Nevertheless, our Supreme Court has assigned error when
the superior court refused an instruction on a victim’s undisputed duty to
yield. State v. Shumway, 137 Ariz. 585, 588–89 (1983) (error to refuse
instruction on victim’s duty to yield, because evidence supported the
theory that defendant had the right of way in an intersection collision).
Though juries generally do not determine a victim’s culpability, they “may
still consider the decedent’s conduct when determining whether a
defendant’s act was criminally negligent,” reckless, or reasonable. See id. at
588. Here, what Teran could reasonably expect from pedestrians was
prescribed by statute but withheld from the jury.
¶19 The right-of-way instructions, therefore, went directly to
Teran’s mental state and whether the jury could convict Teran of second-
degree murder or the lesser-included charges of manslaughter and
negligent homicide. See A.R.S. §§ 13-1104.A.3 (person commits second-
degree murder by “recklessly engag[ing] in conduct that creates a grave
risk of death and thereby causes the death of another person”), -1103.A.1
(person commits manslaughter by recklessly causing the death of another),
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Opinion of the Court
1102.A (person commits negligent homicide if the person causes the death
of another with criminal negligence), -105(10)(c) (defining recklessness as
consciously disregarding a risk when such disregard is a “gross deviation
from the standard of conduct that a reasonable person would observe in the
situation”), -105(10)(d) (defining criminal negligence as failing to perceive
a substantial and unjustifiable risk when such failure is a “gross deviation
from the standard of conduct that a reasonable person would observe in the
situation”).
¶20 The record reasonably supports Teran’s proposed right-of-
way instructions. Teran elicited testimony from one detective explaining
the red brick pathway connected a canal-access road and did not have white
paint markings, stop lights, or signage. The detective also stated the area
was not a marked crosswalk. Though Teran stated he believed the area was
a crosswalk in his police interview, the jury was not bound by that
statement in determining Teran’s duty. See State v. Pike, 113 Ariz. 511, 514
(1976) (the jury resolves evidentiary conflicts and weighs witness
credibility). When the superior court refuses an instruction, this court must
“view the evidence on appeal in the light most favorable to the proponent
of the instruction.” State v. Alemeida, 238 Ariz. 77, 78, ¶ 2 (App. 2015); see also
State v. King, 225 Ariz. 87, 90, ¶ 13 (2010). Viewed from that lens, Teran
presented sufficient evidence “upon which the jury could rationally sustain
his defense.” See State v. Strayhand, 184 Ariz. 571, 577–78 (App. 1995).
¶21 Because Teran presented sufficient evidence to support the
right-of-way instructions and those instructions went directly to the
charged offenses, the superior court abused its discretion in refusing to
provide them.
ii. The Standard of Review
¶22 Because Teran establishes error, our standard of review turns
on whether Teran sufficiently raised the jury-instruction issue before the
superior court.
¶23 The State argues fundamental-error review applies because
Teran failed to object to the denial of his requested jury instructions. See
State v. Bearup, 221 Ariz. 163, 168, ¶ 22 (2009). To obtain relief on
fundamental-error review, Teran bears the burden and must establish the
error (1) went to the foundation of the case, (2) took away a right essential
to his defense, or (3) was so egregious he could not possibly have received
a fair trial. See State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). The State
relies on Arizona Rule of Criminal Procedure 21.3 to buttress its
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Opinion of the Court
fundamental-error review argument.” See Ariz. R. Crim. P. 21.3(b) (“If a
party does not make a proper objection, appellate review may be limited.”
(emphasis added)). But that rule is discretionary and does not resolve the
issue when, as here, the superior court discusses the proposed
instructions—including any objections—with the parties off the record.
¶24 Teran argues harmless-error analysis applies. See Rodriguez,
192 Ariz. at 63, ¶ 27 (applying harmless-error review to the refusal of a
requested jury instruction); State v. Nottingham, 231 Ariz. 21, 28, ¶ 17 (App.
2012) (abrogated by State v. Bigger, 251 Ariz. 402 (2021)); State v. Lewis, 236
Ariz. 336, 346, ¶ 44 (App. 2014). For harmless-error review, “[t]he inquiry
. . . 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.” State v. Bible,
175 Ariz. 549, 588 (1993) (quoting Sullivan v. Louisiana, 508 U.S. 275, 279
(1993) (emphasis in original)). The State bears the burden and must show
“beyond a reasonable doubt that the error had no influence on the jury’s
judgment.” Id.; see also Chapman v. California, 386 U.S. 18, 24 (1967) (An error
is harmless if it appears “beyond a reasonable doubt that the error . . . did
not contribute to the verdict obtained.”).
¶25 The principle underlying the fundamental-harmless
dichotomy is whether a defendant adequately and timely raised an issue
before the superior court. See Bible, 175 Ariz. at 588 (“When an issue is raised
but erroneously ruled on by the [superior] court, this court reviews for
harmless error.”). “The purpose of an objection is to permit the [superior]
court to rectify possible error, and to enable the opposition to obviate the
objection if possible.” State v. Rutledge, 205 Ariz. 7, 13, ¶ 30 (2003) (quoting
State v. Hoffman, 78 Ariz. 319, 325 (1955)). As a result, a defendant may
preserve an issue for appeal without saying the word “objection.” See State
v. Peraza, 239 Ariz. 140, 146, ¶ 18 (App. 2016); cf. State v. Burton, 144 Ariz.
248, 250 (1985) (When “a motion in limine is made and ruled upon, the
objection raised in that motion is preserved for appeal, despite the absence
of a specific objection at trial.”).
¶26 On the facts before us, Teran timely and adequately raised an
“objection.” See Peraza, 239 Ariz. at 146, ¶ 18. Here, over the course of two
trials, both parties asked for these instructions. In the first trial, the State
independently filed a written request for instructions on §§ 28-792 and -793,
a request the State never withdrew before the court declared a mistrial.
During the retrial, Teran filed a written request asking the superior court to
include §§ 28-792 and -793 instructions. The record does not suggest the
State opposed their inclusion. Though Teran did not explain his objection
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Opinion of the Court
on the record, he requested the right-of-way instructions in writing, the
State was given an opportunity to respond, and the superior court held
discussion on Teran’s request in chambers. See Peraza, 239 Ariz. at 146, ¶ 18.
¶27 When the superior court went back on the record, it invited
comments on the in-chambers discussion. At that point, defense counsel
said, “I simply had filed with the court a request for . . . some additional
instructions on crosswalks. I’ve already made a statement in chambers,
Your Honor. . . . I know the [c]ourt said no. I simply want to note that I
made that request.” The superior court also acknowledged Teran had asked
it to provide the right-of-way instructions.
¶28 Though we lack the contents of the in-chambers discussion
including Teran’s statement, we decline to fault Teran for it. This court has
“previously disapproved the practice of holding unrecorded bench
conferences on trial motions.” See State v. Palenkas, 188 Ariz. 201, 206 n.4
(App. 1996) (refusing to fault defense counsel for the lack of a record
because the superior court’s actions prevented a contemporaneous record);
see also State v. Masters, 108 Ariz. 189, 192 (1972) (remanding a robbery case
for a new trial when no transcript of the trial was available “through no
fault of the defendant”). We again caution the superior court against
holding off-the-record discussions on critical, trial-related issues, such as
settling jury instructions.
¶29 Based on the above, we apply harmless-error review.
iii. Reversible Error
¶30 Though the State did not explicitly argue the error was
harmless in its briefing, we decline to apply waiver. See State v. Ortiz, 238
Ariz. 329, 344, ¶ 71 (App. 2015) (addressing the principles underlying
harmless-error review can overcome waiver). The State discussed harmless
error during oral argument and implicitly addressed harmlessness by
arguing the trial evidence and arguments of counsel obviate the need for
the right-of-way instructions. See id. Moreover, Teran had the opportunity
in his briefing and at oral argument before this court to address harmless
error. See id. at 345, ¶ 71. We, therefore, exercise our discretion and address
the issue because doing so does not affect our conclusion. See State v. Smith,
203 Ariz. 75, 79, ¶ 12 (2002) (doctrine of waiver is discretionary); State v.
Lopez, 217 Ariz. 433, 438, ¶ 17 n.4 (App. 2008) (same); see also State v.
Ketchner, 236 Ariz. 262, 265–66, ¶ 20 (2014) (conducting harmless-error
review despite State’s failure to argue error was harmless in brief). But
see State v. Carver, 160 Ariz. 167, 175 (1989) (“Failure to argue a claim usually
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Opinion of the Court
constitutes abandonment and waiver of that claim.”); State v. Henderson, 210
Ariz. 561, 567, ¶ 18 (2005) (the State bears the burden to show an error was
harmless).
¶31 In holding the State to its harmless-error burden, this court
looks to the evidence at trial, arguments of counsel, and the instructions as
a whole in considering whether an instruction, or the lack of an instruction,
constituted harmless error. State v. Solis, 236 Ariz. 285, 288, ¶ 14 (App. 2014).
¶32 As the State points out, a detective testified about the duties
of pedestrians with respect to crosswalks. And during closing, Teran’s
counsel argued the pedestrian unreasonably jumped in front of Teran’s car.
The instructions directed the jury to decide whether the collision area was
a crosswalk. But the defense could not point the jury to specific laws
governing a driver’s duties with respect to pedestrians within or outside of
crosswalks—questions central to whether Teran acted recklessly,
negligently, or as a reasonable person. See supra at ¶ 18. Any arguments the
defense made in closing about Teran’s duties as a reasonable person were
mere arguments lacking the force of law.
¶33 We cannot say, beyond a reasonable doubt, the absence of
these right-of-way instructions did not affect the verdict. The jury convicted
Teran of “[r]ecklessly causing the death of another.” See A.R.S. § 13-
1103.A.1. The applicable duties of a driver, and what a driver may legally
expect of a pedestrian, implicate whether a jury considers a driver’s actions
reckless, negligent, or reasonable. The superior court’s refusal to provide
the right-of-way instructions constituted reversible, not harmless, error.
¶34 To the extent the parties believe it necessary, they may request
additional instructions in the event of a new trial to ensure the inclusion of
these right-of-way instructions does not confuse the jury about the
appropriate legal duty governing Teran’s actions.
C. Lesser-Included Offense
¶35 Teran argues the superior court erred by refusing his request
to instruct the jury under A.R.S. § 28-672 as a lesser-included offense of the
second-degree murder charge.
¶36 Section 28-672.A.7 is not a lesser-included offense of second-
degree murder. A lesser-included offense is an offense “composed solely of
some but not all of the elements of the greater crime so that it is impossible
to have committed the crime charged without having committed the lesser
one.” State v. Celaya, 135 Ariz. 248, 251 (1983).
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Opinion of the Court
¶37 Section 28-672.A.7 provides: “A person is guilty of causing
serious physical injury or death by a moving violation if the person violates
[Section 28-792] . . . and the violation results in an accident[,] causing serious
physical injury[,] or death to another person.”
¶38 The superior court properly refused the requested instruction
because § 28-672.A is only implicated if a motorist commits an enumerated
“moving violation” resulting in another’s death. The applicable homicide
statutes do not contain a similar statutory-violation element. See A.R.S.
§§ 13-1103 (manslaughter), -1104 (second-degree murder), -1102.A
(negligent homicide). Teran, therefore, could commit homicide under each
of those statutes without violating § 28-672.A because the latter contains an
element not required for homicide. The superior court did not err by
refusing Teran’s request for an instruction on § 28-672.A as a lesser-
included offense.
II. State’s Expert Witnesses
¶39 Teran raises two issues challenging the admission of
testimony from two of the State’s experts. This court reviews decisions on
the admissibility of expert testimony for abuse of discretion. State v. Boyston,
231 Ariz. 539, 544, ¶ 14 (2013). If the court abused its discretion, this court
then reviews for harmless or fundamental error, depending on whether
Teran adequately raised the issue before the superior court. See Henderson,
210 Ariz. at 567, ¶¶ 18–19.
¶40 Teran first contends the superior court committed
fundamental error by allowing the accident reconstructionist to testify at
the second trial about Teran’s estimated speed. According to Teran, the
testimony violated his double jeopardy rights. We disagree.
¶41 Teran begins by acknowledging two general rules of criminal
law: (1) “the slate is wiped clean” for a retrial after a defense-requested
mistrial is granted, and (2) double jeopardy bars a retrial when a
prosecutor’s misconduct causes a mistrial. See Pool v. Super. Ct., 139 Ariz.
98, 108–09 (1984). But as Teran concedes, the mistrial in the first trial was
not based on prosecutorial misconduct. Instead, the witness unexpectedly
opined about Teran’s estimated speed in violation of the superior court’s
preclusion order. Further, though the State untimely disclosed the expert’s
opinion for the first trial, Teran does not assert the disclosure’s timing
prejudiced him at the retrial. Accordingly, no double jeopardy violation
occurred, the untimeliness of the disclosure did not prejudice Teran at the
retrial, and the superior court did not err.
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Opinion of the Court
¶42 Finally, Teran argues the superior court erred by denying his
motion in limine in which he sought to preclude the State’s drug
toxicologist from testifying about Teran’s blood-test results and “any
opinion as to [Teran’s] sobriety.” In his motion, Teran also requested a
pretrial evidentiary hearing to challenge the reliability of the toxicologist’s
opinions. See State v. Thompson, ___ Ariz. ___, ___, ¶ 63, 502 P.3d 437, 454
(2022) (discussing the factors for determining the admissibility of a
qualified expert’s opinion under Ariz. R. Evid. 702)); see also State v. Connor,
249 Ariz. 121, 126, ¶ 26 (App. 2020) (same). We address this issue both
because it is relevant to Teran’s DUI convictions and because it may occur
on remand. See Buckholtz v. Buckholtz, 246 Ariz. 126, 131, ¶ 17 (App. 2019).
¶43 The superior court denied the motion without conducting an
evidentiary hearing. Instead, the superior court noted it would not “allow
or consider any witness opinion as to impairment” absent foundation. The
superior court then admonished defense counsel to object if defense counsel
did not think the prosecutor “laid the foundation.” Teran did not object at
trial.
¶44 First, the superior court did not abuse its discretion when it
did not conduct a pretrial evidentiary hearing. See Connor, 249 Ariz. at 127,
¶ 31 (“Although [the superior] court has the discretion to hold a pre-trial
evidentiary hearing to address admissibility under [Rule] 702, such a
hearing is not mandatory.” (cleaned up)). The superior court reserved any
determination regarding the expert’s reliability until trial by requiring
proper foundation for that testimony. Delaying the determination until trial
was within the superior court’s discretion and did not constitute error.
¶45 Second, the superior court did not abuse its discretion in
denying Teran’s motion in limine. Teran failed to present evidence clearly
establishing the toxicologist was not qualified to testify about impairment
in his motion and at oral argument. Such evidence can be admissible if
proffered by a qualified expert and based on the facts particular to the case
at issue. Here, the superior court correctly ruled “the presence of the
metabolite and the drugs in the systems are relevant.” The superior court
also noted “[i]f this expert can’t say the quantity leads to impairment, she
can’t give an opinion as to impairment.” This ruling establishes the superior
court maintained its gatekeeper role and did not abuse its discretion in
denying Teran’s motion contingent on the State laying proper foundation.
¶46 Finally, it was error to admit at trial evidence of the quantity
of THC and Xanax in Teran’s blood and the expert’s testimony that she
“expect[ed] that there [were] some signs or symptoms from the levels that
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Opinion of the Court
are being seen.” This expert was a toxicologist, not a drug-recognition
expert—though she attended drug-recognition school once as an observer.
She was unqualified as an expert on impairment and should not have been
permitted to testify on that topic. See Thompson, ___ Ariz. at ___, ¶ 63, 502
P.3d at 454 (“Extensive training is not required but [the party proposing
expert testimony must show] a degree of expertise in the subject such that
‘a jury can receive help on a particular subject from the witness.’” (quoting
State v. Davolt, 207 Ariz. 191, 210, ¶ 70 (2004))). Further, because the expert
was not qualified to testify about impairment, her testimony describing the
quantities of THC and Xanax in Teran’s blood was inadmissible because it
was irrelevant absent proper foundation to contextualize it with respect to
impairment.
¶47 Teran, however, did not object to that testimony at trial.
Because the superior court essentially denied Teran’s motion without
prejudice by making its ruling contingent upon proper foundation, Teran’s
failure to object at trial waived review on appeal unless he can establish
fundamental, prejudicial error. See State v. Garcia-Quintana, 234 Ariz. 267,
269, ¶ 6 (App. 2014) (applying fundamental-error review “[b]ecause the
court never ruled on Defendant’s motion in limine and Defendant did not
object at trial” (citing State v. Perez, 233 Ariz. 38, 43–44, ¶ 21 (App. 2013))).
¶48 Teran does not establish prejudice. See Escalante, 245 Ariz. at
144, ¶ 31 (proving prejudice “requires a showing that without the error, a
reasonable jury could have plausibly and intelligently returned a different
verdict”). The officer who interviewed Teran testified about Teran’s slurred
words and droopy eyes following the incident. The lab results showing
Teran had THC and Xanax in his blood—without the quantities—were
admissible. And even Teran concedes “the jury was capable [of] using its
own knowledge and experience to determine whether [Teran’s] ‘signs or
symptoms’ were attributable to common ordinary factors or were the result
of the Xanax that was in his system.” Teran, therefore, does not show the
toxicologist’s testimony prejudiced him.
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CONCLUSION
¶49 We vacate and remand Teran’s manslaughter conviction and
sentence but affirm his remaining convictions.
AMY M. WOOD • Clerk of the Court
FILED: JT
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