State v. Padilla

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

ARMANDO PADILLA, JR., Appellant.

No. 1 CA-CR 24-0071
FILED 12-12-2024

Appeal from the Superior Court in Maricopa County
No. CR2022-030714-001
The Honorable Laura J. Giaquinto, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee

Law Offices of Kamille Dean, P.C., Phoenix
By Kamille R. Dean
Counsel for Appellant
 STATE v. PADILLA
Decision of the Court

MEMORANDUM DECISION

Judge Daniel J. Kiley delivered the decision of the Court, in which Presiding
Judge Michael J. Brown and Judge D. Steven Williams joined.

K I L E Y, Judge:

¶1 Armando Padilla, Jr. (“Padilla”) appeals his convictions for
aggravated driving under the influence (“DUI”), arguing that the superior
court erred in overruling certain evidentiary objections and in denying his
motion for judgment of acquittal under Arizona Rule of Criminal Procedure
(“Rule”) 20. We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Viewed in the light most favorable to sustaining the
verdict, see State v. Thompson, 252 Ariz. 279, 287, ¶ 2 n. 3 (2022), the evidence
shows that in May 2021, Padilla and his wife, Melissa Padilla (“Melissa”)1,
who lived in Mesa, had been arguing for several days when, on the evening
of May 20, Melissa packed up some of Padilla’s clothes, put them in their
white Chevrolet Suburban, and told him to leave. Padilla departed in the
Suburban. Because of a past DUI conviction, Padilla was prohibited from
driving a motor vehicle that was not equipped with an ignition interlock
device (“IID”). See A.R.S. § 28-3319. The Suburban was not equipped with
an IID.

¶3 The next morning, Melissa left home “a little after 8:00” to go
to work. While stopped at a red light, Melissa looked behind her and saw
Padilla driving the Suburban. A few minutes later, Melissa received “an
alert” on her phone’s location-tracking app indicating that Padilla was at
their house. Melissa turned around and drove back home.

¶4 Padilla’s next-door neighbor R.L. later testified that he was
standing in front of his house at around 8:15 a.m. when he saw Padilla “in
his Suburban driving up and down the street very slowly, back and forth.”
R.L. then went back inside his house.

1 To avoid confusion, we respectfully refer to Padilla’s family members by

their first names.

2
 STATE v. PADILLA
Decision of the Court

¶5 As Melissa pulled up to her house, she “saw [Padilla] pull into
the driveway . . . and get out” of the Suburban. As she later stated, she
“could see he was drunk.” Melissa got out of her car and called out to
Padilla, telling him to leave. When Padilla walked around to the back of the
house, Melissa got back in her car and called 911. The 911 call was placed
at 8:38 a.m.

¶6 Melissa told the 911 dispatcher that Padilla was “drunk” and
“trying to get into [their] home.” When the 911 dispatcher asked, “What
kind of vehicle did he show up in?”, Melissa responded, “In a white Chevy
Suburban. It’s parked in the driveway right now.”

¶7 While Melissa was on the phone, Padilla approached her car
and banged on the window. Startled, Melissa screamed and told the
dispatcher that Padilla was “hitting [her] vehicle” and “trying to break the
windows.” Padilla then walked away.

¶8 At about “8:30” or “8:35” a.m., “roughly 10 [or] 15 minutes”
after he had seen Padilla driving the Suburban, R.L. heard a knock at his
front door. He opened the door to find Padilla “[s]taggering,” “mumbling,”
and asking “if [R.L.] could hide him because the police were coming.”
When R.L. refused, Padilla left.

¶9 Shortly thereafter, R.L. approached Melissa’s car while she
was still on the phone with the 911 dispatcher. The following exchange was
captured on the recording of the 911 call:

R.L.: He wants me to hide him. But I don’t -- What’s going on?
I don’t want to get involved. Is there something I can do or --

Melissa: No, the police are on the way. He’s drunk.

R.L.: I know, I seen that. I saw him driving by here like ten
times.

¶10 Melissa remained on the phone with the 911 dispatcher until
police officers arrived at the scene between 8:48 and 8:53 a.m. When officers
arrived, the Suburban was parked in the driveway, Melissa was still sitting
in her car parked in the street, and Padilla was sitting on a brick wall in
front of the home. The officers observed “obvious signs” of Padilla’s
impairment, e.g., a “lack” of “stability” and “slurred speech.” Officer
DeMarco approached Padilla and stated, “You’re drunk.” Padilla nodded
and replied, “Yep.”

3
 STATE v. PADILLA
Decision of the Court

¶11 Officer Pellegrino then asked Padilla, “How much alcohol
have you had to drink?” Padilla replied, “A lot.” Pellegrino asked him to
quantify his alcohol consumption, but Padilla replied that he was unable to.
Pellegrino then asked, “Are we talking, like, ten drinks?” Padilla answered,
“Yeah, ten drinks.” Pellegrino asked what Padilla drank, and he answered,
“Vodka.” Pellegrino asked, “Was it a shot?” to which Padilla answered,
“Yeah, it was a shot.” Pellegrino asked, “What do you think, like, what is
that, like, four ounces?” to which Padilla nodded his head and answered,
“Yeah.” Pellegrino then asked, “What was the time of your last drink?”
Padilla answered, “An hour.”

¶12 Officer DeMarco conducted a pat down of Padilla and found
car keys in his pocket. Padilla said the keys were to the Suburban, but
denied that he had driven it, or any other vehicle, that morning. When
asked how he got to the house that day, Padilla claimed that his sister
Alyssa Padilla (“Alyssa”) had dropped him off. When Padilla urged
DeMarco to call Alyssa to verify his claim, the officer stepped away to call
her. Moments later, DeMarco returned. The following exchange was
captured on the recording from DeMarco’s body worn camera (“BWC”):

Padilla: She don’t want to talk to me?

DeMarco: Who?

Padilla: My mom.

DeMarco: No, I was talking to Alyssa.

Padilla: Oh, were you?

DeMarco: Yeah, you know what she told me.

Padilla: Yeah.

DeMarco: Why do you want to lie to me? Come on, brother.

At that point, Padilla turned around and raised his hands over his head.
When DeMarco told him that he was “not under arrest yet,” Padilla replied,
“Yeah . . . might as well.”

¶13 Officer Kuntz administered a horizontal gaze nystagmus test
(“HGN”) at 9:43 a.m., “observed all six clues of nystagmus” which, he later
testified, indicates alcohol impairment.

4
 STATE v. PADILLA
Decision of the Court

¶14 Padilla was arrested and, after being read his Miranda rights2,
consented to a blood draw. The blood sample was taken at 10:43 a.m. and
was examined by forensic scientist Alicia Miller (“Miller”), who determined
that the alcohol level in the blood sample was .267.

¶15 The State charged Padilla with two class 4 felonies:
aggravated driving while impaired to the slightest degree in violation of
A.R.S. §§ 28-1381(A)(1) and -1383(A)(4) (the “A(1) charge”) and aggravated
driving with a BAC of .08% or more within two hours of driving in violation
of A.R.S. §§ 28-1381(A)(2) and -1383(A)(4) (the “A(2) charge”).

¶16 At trial, R.L. testified about his observations of Padilla driving
that morning and their conversation when Padilla knocked on his front
door. He also testified that at no point that morning did he see Padilla in
possession of any bottle, can, or other container that appeared to be an
alcoholic beverage.

¶17 Officer Kuntz testified about the HGN test that he conducted.
He also testified, based on his training and experience, about driving cues
that indicate impairment, noting that one such cue is driving “under the
speed limit.”

¶18 Officer Pellegrino testified that when he was called to the
scene that day, he spoke with Padilla, noting that Padilla’s eyes were
“bloodshot,” his speech was “very slurred,” and he had “a hard time . . .
standing up straight.” Pellegrino added that Padilla “just kept asking me,
‘take me to jail.’” Pellegrino testified that, in response to his questions,
Padilla reported having “ten drinks” that morning, elaborating that he
consumed ten “four-ounce shots” of vodka and drank the last one at “8:30
in the morning.” He further testified, however, that when he again asked
Padilla about his alcohol consumption after the blood draw, Padilla claimed
to have had only “two” drinks.

¶19 Finally, Pellegrino testified that he had contact with Padilla
over a period of at least two hours that morning, and that the signs of
impairment that Padilla exhibited “stayed relatively the same.”

¶20 The State also called Officer DeMarco, who testified about his
observations and conversation with Padilla at the scene. When asked about
Padilla’s claim at the scene to have consumed ten shots of vodka, DeMarco

2 Miranda v. Arizona, 384 U.S. 436 (1966).

5
 STATE v. PADILLA
Decision of the Court

testified that he did not observe any bottles, cans, or other alcoholic
beverage containers in Padilla’s possession or on the ground.

¶21 After counsel completed their examination of the witness, the
court invited jurors to submit proposed written questions. See Ariz. R. Crim.
P. 18.6(e). A juror submitted a question reading, “Is a witness seeing
someone drive while intoxicated enough probable cause for an arrest?”
Padilla objected to the question being put to the witness, arguing, inter alia,
that the question called for a legal conclusion and risked confusing the jury.
The court overruled the objection and read the question to the witness.
DeMarco answered, “Yes, it will.” Padilla declined to conduct any follow-
up examination.

¶22 Miller testified that she performed a retrograde3 extrapolation
of the BAC detected in Padilla’s blood sample, accounting for Padilla’s
gender and weight, and determined that, as of 10:14 a.m., Padilla’s BAC
would have been in the range of .271-.281. When asked by defense counsel
if it was “possible for a person to drink enough vodka” within fifteen or
twenty minutes “to have a blood alcohol concentration of .267 two hours
later,” Miller acknowledged that it was “technically possible,” but “highly
unlikely.” She explained that a person who drank “that amount of alcohol
in that limited time frame” would “likely . . . either throw up or . . . have
alcohol poisoning.”

¶23 The State concluded its case-in-chief by presenting testimony
and documentary evidence establishing that the IID restriction on Padilla’s
driver’s license was in effect on May 21.

¶24 After the State rested, Padilla moved for judgment of acquittal
under Rule 20 on both counts. See Ariz. R. Crim. P. 20(a)(1). The court
denied Padilla’s request, finding “substantial evidence to support the
allegations” on both counts.

¶25 Padilla called his own expert witness, Michael Grommes
(“Grommes”), a forensic toxicologist. Grommes testified that a man
weighing 200 lbs. who consumed 22.6 ounces of vodka in the span of fifteen
to twenty minutes would have a BAC of .267 two hours later, while a man
who weighed 220 lbs. who consumed 25 ounces of vodka in the same

3 “A retrograde, or retroactive extrapolation, is a method by which a
person’s BAC at an earlier point in time is calculated based on his BAC from
a later blood test.” State ex rel. Montgomery v. Miller, 234 Ariz. 289, 295, ¶ 5
(App. 2014).

6
 STATE v. PADILLA
Decision of the Court

amount of time would reach the same BAC two hours later.4 When asked if
a person who consumed alcohol in this manner would exhibit “a rapid
change in their behavior,” Grommes answered “Yeah,” explaining that “if
somebody goes from no alcohol to an alcohol level that high, I would expect
to see changes in their balance” and “speech.”

¶26 Grommes further testified that “impairment is not the same
thing as somebody being drunk.” Instead, he stated, being impaired simply
means that one’s ability “to perform [a] task is diminished.” He explained,
for example, that a person with a BAC of .267 may still be able to drive a car
without committing any traffic violations.

¶27 Grommes explained that alcohol impairment occurs along a
“continuum.” “[T]he first thing” that alcohol affects, he stated, “is
somebody’s cognitive ability and their sensory skills.” After that, alcohol
affects a person’s “fine motor skills,” and then “gross motor skills.” It
“doesn’t matter who you are,” he explained, “that’s the order at which
you’re impaired.” “[I]f your gross motor skills are impaired,” he elaborated,
then “your fine motor skills . . . vision . . . [and] cognitive function” are also
necessarily impaired. Indications of gross motor skills impairment,
Grommes explained, include “somebody [having] trouble standing,
walking, [or] us[ing] a wall for balance.” When asked if slurred speech
indicated impairment of fine motor skills or gross motor skills, Grommes
responded that slurred speech “would be kind of in between.”

¶28 Padilla then called his wife Melissa as a witness. She testified
that she did not see Padilla drink anything or drive any vehicle on May 21.
When asked why she made statements to the contrary to law enforcement
that day, Melissa stated that she made a false report because she and Padilla
“were arguing so much during that time” that she thought they might be
headed for divorce. Believing that “there would be a fight about . . . the
house if [they] did divorce,” she explained, she decided to falsely accuse
Padilla of DUI in the hope that, “if [she] got him in trouble” and “he went
away,” she “would get the home.”

¶29 Padilla testified in his own defense. He stated that he left the
home at his wife’s behest on May 20 and spent the night at his sister
Alyssa’s house. The next morning, he stated, he returned home because he
did not have the clothes he needed for work that day. Padilla testified that

4 Padilla later testified that his weight “fluctuates” between 200 and 220 lbs.

7
 STATE v. PADILLA
Decision of the Court

his brother and his brother’s girlfriend picked him up at Alyssa’s house and
drove him home and dropped him off “a little after 8:00.”

¶30 Padilla stated that, upon realizing he couldn’t get into the
locked house, he retrieved a bottle from his “stash of alcohol” in a “hiding
place[]” at “the side of the house near the backyard.” He then “downed a
complete fifth of vodka . . . [in] a matter of minutes.” As a result, he stated,
he became “intoxicated,” and was in that state when the police arrived.

¶31 Padilla denied R.L.’s testimony that he had been driving the
Suburban that morning, suggesting that R.L. was deliberately untruthful
because the two had “many arguments” during the time they were
neighbors. When asked if he had the keys to the Suburban in his pocket that
morning, Padilla answered, “No.” When asked why he told Officer
DeMarco that the keys in his pocket belonged to the Suburban, Padilla
replied, “I don’t remember what I said,” adding, “When I made that
statement, I was intoxicated.”

¶32 The jury convicted Padilla on both counts. He was sentenced
to concurrent, presumptive terms of 4.5 years’ imprisonment.

¶33 Padilla timely appealed. We have jurisdiction under Article 6,
Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-
4031, -4033(A)(1).

DISCUSSION

¶34 Padilla argues that the superior court abused its discretion by
(1) admitting Officer DeMarco’s BWC recording, (2) overruling his
objection to a question submitted by a juror, and (3) denying his Rule 20
motion for acquittal on both counts of aggravated DUI.

¶35 We review the superior court’s evidentiary rulings for an
abuse of discretion. State v. Payne, 233 Ariz. 484, 502, ¶ 49 (2013).

A. Hearsay Statement

¶36 Padilla argues that the court abused its discretion by allowing
the State to present Officer DeMarco’s BWC recording as an exhibit
because, he contends, the recording contained hearsay.

¶37 After telling DeMarco that Alyssa drove him home that
morning, Padilla urged DeMarco to call her to confirm his claim. DeMarco

8
 STATE v. PADILLA
Decision of the Court

did so, and the BWC recording reflects that the following exchange then
occurred:

DeMarco: Yeah, you know what she told me.

Padilla: Yeah.

DeMarco: Why do you want to lie to me? Come on, brother.

¶38 At that point, Padilla turned around and raised his hands
over his head, telling DeMarco that he “might as well” arrest him.

¶39 Padilla argues that DeMarco’s question “Why do you want to
lie to me?” constituted hearsay because, he maintains, the question
“conveyed a highly prejudicial impression to the jury to the effect that
[Alyssa] said affirmatively that it was Padilla who was driving.”5

¶40 “Hearsay is defined as a statement ‘the declarant does not
make while testifying at the current trial or hearing’ that is ‘offer[ed] in
evidence to prove the truth of the matter asserted in the statement.’” State
v. Allen, 253 Ariz. 306, 327, ¶ 27 (2022) (quoting Ariz. R. Evid. 801(c)). The
hearsay definition thus requires an identifiable out-of-court assertion. Ariz.
R. Evid. 801(c), see Ariz. R. Evid. 801(a) (“‘Statement’ means a person’s oral
assertion, written assertion, or nonverbal conduct, if the person intended it
as an assertion.”). “Statements offered for a purpose other than proving the
truth of the matter asserted are not hearsay.” Allen, 253 Ariz. at 327, ¶ 27
(citation omitted). “The burden is on the party claiming an assertion was
intended, and ambiguous or doubtful cases will be resolved in favor of
admissibility.” State v. Palmer, 229 Ariz. 64, 67, ¶ 8 (App. 2012) (cleaned up).

¶41 “[A]n out-of-court statement admitted for the purpose of
establishing what effect it had on the listener is not hearsay.” Allen, 253
Ariz. at 327, ¶ 27 (cleaned up). Likewise, an out-of-court statement is not
hearsay if offered to provide context for a party’s responses. State v. Fordson,
__ Ariz. __, ¶¶ 27-28, 555 P.3d 52, 58 (App. 2024) (rejecting defendant’s
hearsay challenge to admission of recording of conversation between
defendant and his girlfriend; noting girlfriend’s statements were not

5 In his reply brief, Padilla argues, for the first time, that the admission of

DeMarco’s BWC recording violated his rights under the Confrontation
Clause. By raising this argument for the first time in reply, Padilla waived
it. State v. Rumsey, 225 Ariz. 374, 379, ¶ 15 n.4 (App. 2010).

9
 STATE v. PADILLA
Decision of the Court

hearsay because they were offered “to put [defendant’s] responsive
statements in context”).

¶42 Here, DeMarco’s question was not an “assertion” at all, and
so did not constitute hearsay. Instead, the question was admissible to
provide context for Padilla’s statement that DeMarco “might as well” arrest
him, which could, in turn, be construed as evincing consciousness of guilt.
See State v. Thompson, 832 A.2d 626, 654 (Conn. 2003) (noting that
defendant’s statements at homicide scene, including “[j]ust arrest me,”
were “consistent with consciousness of guilt”). And even if DeMarco’s
question could be interpreted as an assertion, it was, at most, an assertion
by DeMarco, not by Alyssa. DeMarco’s question reflected DeMarco’s belief
that Padilla had lied when he denied driving that morning. Because
DeMarco’s question did not repeat or summarize any statement made by
Alyssa, it is not hearsay. State v. Chavez, 225 Ariz. 442, 444, ¶ 8 (App. 2010)
(“[W]ords or conduct not intended as assertions are not hearsay even when
offered as evidence of the declarant’s implicit belief of a fact.”).

¶43 In support of his position, Padilla relied on unpublished
decisions by appellate courts in North Carolina and Delaware. See State v.
Baldwin, 643 S.E.2d 677, 2007 WL 1246418 (N.C. App. 2007) (unpublished
table decision); Ramirez v. State, 27 A.3d 552, 2011 WL 3811581 (Del. 2011)
(unpublished table decision).6 In Baldwin, the trial court allowed an officer
to testify at trial about a statement the defendant’s stepmother made to him
about the defendant’s whereabouts at the time of the crime, 2007 WL
1246418 at *12, while in Ramirez, the court admitted the recording of the
defendant’s post-arrest interview in which the interviewer disclosed
statements made by the defendant’s family members. The Baldwin court
and the Ramirez court both held that the admission of the hearsay
statements was error. Here, by contrast, Officer DeMarco’s BWC video
contains no hearsay statements by Alyssa or any other non-testifying
witness. Baldwin and Ramirez are thus inapposite. The court did not abuse
its discretion in admitting the BWC recording.

6 Arizona Rule of the Supreme Court 111(d) permits citation to unpublished

decisions from another jurisdiction if “permitted in that jurisdiction.”
Delaware court rules do not prohibit citation to unpublished opinions, see
Case Financial, Inc. v. Alden, Civ. Act. No. 1184-VCP, 2009 WL 2581873 at *6
n.39 (Del. Chan. Aug. 21, 2009) (noting that “unpublished opinions have
precedential value” in Delaware), while North Carolina court rules permit
citation to unpublished decisions in limited circumstances, including if
there is no published opinion on point. See N.C. R. App. P. 30(e)(3).

10
 STATE v. PADILLA
Decision of the Court

B. Juror Question

¶44 Padilla claims that the court abused its discretion when it
overruled his objection to the following question that a juror submitted to
be asked of Officer DeMarco: “Is a witness seeing someone drive while
intoxicated enough probable cause for an arrest?” Padilla argues the juror
question was improper because it called for a legal conclusion and risked
jury confusion. See Ariz. R. Evid. 403.

¶45 “[T]he questioning of witnesses by jurors is left to the
discretion of the trial court,” and “the appellate courts will not reverse
unless there is a clear abuse of that discretion.” State v. Taylor, 25 Ariz. 497,
499 (App. 1976). “[T]he court may prohibit or limit the submission of [juror]
questions to witnesses for good cause.” Ariz. R. Crim. P. 18.6(e). Testimony
in response to juror questions must be helpful to a trier of fact, and it must
refrain from merely delivering legal conclusions that tell a jury how to
decide a case. Webb v. Omni Block, Inc., 216 Ariz. 349, 353, ¶ 12 (App. 2007);
see Ariz. R. Evid. 701.

¶46 Defense counsel objected to the juror’s question because it
concerned the issue of probable cause, “a much lower legal standard” than
the “beyond a reasonable doubt” standard that the jury was to apply,
thereby “risk[ing] confusion of what has to be done at this trial.” Counsel
also objected that the question called for “a legal conclusion . . . about what
would constitute probable cause.” The court overruled the objection and
read the question, to which the officer answered, “Yes, it will.”

¶47 We agree that Padilla’s objection should have been sustained.
The question asked whether certain evidence suffices to establish probable
cause, and therefore called for a legal conclusion. Nonetheless, the
erroneous admission of evidence does not require reversal if the State
establishes that the error was harmless. See, e.g., State v. Anthony, 218 Ariz.
439, 446, ¶ 39 (2008). The erroneous admission of evidence may be harmless
if, inter alia, the evidence was “superfluous” and so “could not have affected
the verdict.” State v. Copeland, 253 Ariz. 104, 116, ¶ 27 (App. 2022) (citation
omitted).

¶48 A trial witness cannot properly offer an opinion that the
defendant is guilty, Fuenning v. Superior Court, 139 Ariz. 590, 605 (1983), or
otherwise tell the jury “how to decide the case.” Webb, 216 Ariz. at 353, ¶ 14.
Here, however, Officer DeMarco’s testimony in response to the juror’s
question did not tell the jurors that Padilla was guilty of the charged
offenses, nor did it otherwise tell them how to decide the case. Moreover,

11
 STATE v. PADILLA
Decision of the Court

as the State correctly argues (and Padilla does not dispute), the court
properly instructed the jury on the elements of the charged crimes, and the
challenged testimony did not relate to any of those elements. Instead, the
testimony related to the existence of probable cause for an arrest, a matter
that was superfluous to the issues that the jury was required to consider.
Because the challenged testimony did not tell the jurors how to decide any
issue before them, the testimony could not have affected the verdict, and so
its admission, though erroneous, does not require reversal. See Copeland, 253
Ariz. at 116, ¶ 27; see also Payne, 233 Ariz. at 519, ¶ 158 (holding that
exclusion of evidence of defendant’s post-incarceration conduct, though
erroneous, was harmless because it would not have “affected any juror’s
decision”).

C. Rule 20 Motion

¶49 Padilla argues that the court erred by denying his Rule 20
motion because, he maintains, there was no “substantial evidence” to prove
him guilty of violating A.R.S. §§ 28-1381(A)(1) or -1381(A)(2).

¶50 A judgment of acquittal is appropriate only “if there is no
substantial evidence to support a conviction.” Ariz. R. Crim. P. 20(a)(1).
“Substantial evidence . . . is such proof that reasonable persons could accept
as adequate and sufficient to support a conclusion of [the] defendant’s guilt
beyond a reasonable doubt.” State v. Ellison, 213 Ariz. 116, 134, ¶ 65 (2006)
(citation omitted). Put another way, in reviewing the denial of a Rule 20
motion, “the relevant question is whether, after viewing the evidence in the
light most favorable to the prosecution, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt.” State
v. West, 226 Ariz. 559, 562, ¶ 16 (2011) (cleaned up) (emphasis in original).
“Both direct and circumstantial evidence should be considered in
determining whether substantial evidence supports a conviction.” Id.
“When reasonable minds may differ on inferences drawn from the facts, the
case must be submitted to the jury, and the trial judge has no discretion to
enter a judgment of acquittal.” State v. Lee, 189 Ariz. 590, 603 (1997).

¶51 The denial of a Rule 20 motion is a question of law reviewed
de novo. Allen, 253 Ariz. at 335, ¶ 69. When reviewing the denial of a Rule 20
motion, a court considers “the entire record, including any evidence [the]
defendant may have later supplied.” State v. Bolton, 182 Ariz. 290, 308
(1995); see State v. Eastlack, 180 Ariz. 243, 258 (1994) (“After making and
losing a motion for a directed verdict, a defendant has the choice of resting
on the motion or proceeding with his case. If he proceeds, he runs the risk

12
 STATE v. PADILLA
Decision of the Court

of curing any deficiency in the state’s case through introduction of his own
evidence.”) (citation omitted).

1. Impaired to the Slightest Degree

¶52 To survive a Rule 20 motion on the A(1) count, the State was
required to present evidence sufficient to support a finding that on May 21,
2021, (1) Padilla drove or was in actual physical control of a vehicle; (2)
Padilla did so while under the influence of, and impaired to the slightest
degree by, intoxicating liquor; (3) Padilla was prohibited, at the time, from
driving a vehicle that was not equipped with an IID; (4) Padilla knew or
should have known that the IID restriction was in effect; and (5) the vehicle
was not equipped with an IID. A.R.S. §§ 28-1381(A)(1), -1383(A)(1), -
3319(D); State v. Nelson, 251 Ariz. 420, 423-24, ¶¶ 12, 18 (App. 2021). Padilla
concedes that on May 21 he was prohibited from driving a vehicle that was
not equipped with an IID, that he was aware of this prohibition, and that
the Suburban was not so equipped. Further, Padilla admits that he was
intoxicated when the police arrived at the scene that day. He argues,
however, that the State presented “scant or no substantial evidence that [he]
had driven” the Suburban (or any other vehicle) that day and, in any event,
the State failed to present evidence “of even a slight degree of impairment.”

¶53 Ample evidence in the record supports a finding that Padilla
drove the Suburban on the morning of May 21. Padilla’s neighbor R.L.
reported seeing Padilla drive the Suburban up and down the street at about
8:15 that morning. Although Padilla contends that R.L. was not a credible
witness in view of their “longtime adversarial relationship” and because
the Suburban’s tinted windows would have impeded his “ability to observe
clearly who was driving,” the credibility of R.L.’s testimony was a matter
for the jury to determine. See State v. Fischer, 242 Ariz. 44, 50, ¶ 19 (2017) (“It
is primarily the province of the jury to determine the credibility of witnesses
and to find the facts.”). R.L.’s testimony alone constitutes sufficient
evidence to warrant a determination that Padilla was driving that morning.
See State v. Saez, 173 Ariz. 624, 628 (App. 1992) (“If reasonable persons may
fairly differ as to whether certain evidence establishes a fact in issue, then
such evidence must be considered as substantial.”) (cleaned up).

¶54 Additional evidence that Padilla drove the Suburban on the
morning of May 21 includes Melissa’s statements to that effect to law
enforcement that day, the presence of the Suburban’s keys in Padilla’s
pocket, and the fact that no third party was present at the scene who could
have driven the Suburban instead of Padilla. Although Padilla insists that
his wife was “discredited” as a witness because at trial she “recanted” her

13
 STATE v. PADILLA
Decision of the Court

contemporaneous statements to the police, the jury was not required to
reject Melissa’s contemporaneous statements simply because she later
recanted them. See State v. Cox, 217 Ariz. 353, 357, ¶ 27 (2007) (“No rule is
better established than that the credibility of the witnesses and the weight
and value to be given to their testimony are questions exclusively for the
jury.”) (citation omitted); see also State v. Valdez, No. 2 CA–CR 2022–0053,
2024 WL 324296, at *2 (Ariz. App. Jan. 29, 2024) (mem. decision) (explaining
that “no authority hold[s] that, when reviewing the sufficiency of the
evidence on direct appeal, we may choose which of a recanting witness’s
version of events is credible or that a trial court may do so in determining
whether to submit a matter to the jury”).

¶55 Finally, the jury could disbelieve Padilla’s testimony about
how he returned home on the morning of May 21 based on his failure to
call his sister, his brother, or his brother’s girlfriend as witnesses to
corroborate his testimony. See State v. Vargas, 251 Ariz. 157, 177, ¶ 71 (App.
2021) (citing “the well recognized principle that the nonproduction of
evidence may give rise to the inference that it would have been adverse to
the party who could have produced it”) (citation omitted).

¶56 Likewise, ample evidence supports a finding that Padilla was
impaired while driving that morning. Such evidence includes R.L.’s
testimony that Padilla was driving “very slowly,” Officer Kuntz’s
testimony that driving “under the speed limit” is a cue that indicates
impairment, and Padilla’s request that R.L. “hide” him “because the police
were coming,” a request that could be construed as an admission that he
had driven the Suburban while impaired. See, e.g., State v. Swinburne, 116
Ariz. 403, 413 (1977) (“We have consistently held that flight or concealment
of an accused is properly admissible in evidence as a fact which may be
considered by the jury and from which they may draw an inference, in the
absence of any explanation, that the accused is guilty.”).

¶57 Likewise, when Officer DeMarco told Padilla that he believed
Padilla’s denial that he drove that morning was a “lie,” Padilla lifted his
arms up as though he was to be arrested. When DeMarco told him he was
not under arrest, Padilla said that DeMarco “might as well” arrest him. A
reasonable jury could interpret Padilla’s reaction to being confronted by
DeMarco as evidence of a consciousness of guilt. See State v. Arce, 107 Ariz.
156, 161 (1971) (observing that “[i]t was the function of the jury to decide
what reasonable inferences could be drawn from the evidence”); see also
Thompson, 832 A.2d at 654 (noting that defendant’s statement “[j]ust arrest
me” was “consistent with consciousness of guilt”).

14
 STATE v. PADILLA
Decision of the Court

¶58 Padilla argues that there is no substantial evidence to support
a finding of guilt on the A(1) charge because there “were no reports, by
witnesses or police, that Padilla engaged in erratic driving.”

¶59 But “erratic driving” is not an element of the A(1) charge. State
v. Miller, 226 Ariz. 190, 192, ¶¶ 9-10 (App. 2011) (holding the State need not
produce evidence of “bad driving” for DUI conviction). Rather, the
evidence need only be sufficient for a reasonable juror to determine, based
on the totality of the evidence, that Padilla was “impaired to the slightest
degree” at the time he drove a vehicle. A.R.S. § 28-1381(A)(1). Here, the jury
could reasonably have found that Padilla was impaired while he was
driving home in view of the signs of impairment he exhibited once he
arrived. R.L. described seeing Padilla “staggering” at 8:30 or 8:35 a.m. on
May 21, while the officers who arrived at the scene fifteen or twenty
minutes later saw him struggle to maintain his balance. These observations
indicate the impairment of Padilla’s gross motor skills, which, as Grommes
testified, means that his cognitive ability and fine motor skills were
necessarily impaired as well.

¶60 Although Padilla claimed that all of his alcohol consumption
occurred in the span of fifteen to twenty minutes after he arrived home that
morning, the jury was not required to accept Padilla’s testimony on this
point. State v. Pieck, 111 Ariz. 318, 320 (1974) (“The jury is not compelled to
accept the story or believe the testimony of an interested party.”). The jury
could have rejected Padilla’s testimony that he chugged a fifth of vodka
within twenty minutes or less of his return home in view of the
controverting evidence, including the fact that the officers observed no
vodka bottle at the scene, Padilla gave a different account of his drinking to
the officers at the scene (when he claimed to have consumed vodka in the
form of multiple 4-ounce shots), and Miller’s testimony that a person who
consumed a fifth of vodka within fifteen to twenty minutes would in all
likelihood become physically ill or worse.

¶61 Moreover, the jury may have rejected Padilla’s claim that all
of his alcohol consumption occurred in the span of fifteen to twenty
minutes after he arrived home in light of Officer Pellegrino’s testimony that
the signs of intoxication that Padilla exhibited did not grow more
pronounced during the two hours Pellegrino spent with Padilla on May 21.
As Grommes acknowledged in his testimony, a person who consumed, in
fifteen or twenty minutes, enough alcohol to reach a BAC of .267 two hours
later would exhibit “changes” in “balance” and “speech.”

15
 STATE v. PADILLA
Decision of the Court

¶62 This Court “may not reverse a conviction for insufficiency of
the evidence simply because another jury might have reached a different
verdict.” State v. Rios, 255 Ariz. 124, 131, ¶ 26 (App. 2023). Instead, “[i]f
reasonable persons may fairly differ as to whether certain evidence
establishes a fact in issue, then such evidence must be considered as
substantial.” Saez, 173 Ariz. at 628 (cleaned up). By citing to evidence that
could support a judgment of acquittal, Padilla effectively asks us to reweigh
evidence already considered by the jury and reach a different conclusion.
This we will not do. See State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004)
(holding that conflicting evidence goes to weight and credibility, which is
for the jury to decide). Thus, the court did not err by denying Padilla’s Rule
20 motion as to Count One.

2. BAC of .08 or More Within Two Hours of Driving

¶63 Padilla next argues that the court erred because the officers
failed to perform his BAC blood draw “within two hours” of the alleged
time of driving. A.R.S. § 28-1381(A)(2). Padilla claims the State failed to
prove that his BAC “resulted from alcohol consumed either before or while
driving” because it was possible that he had consumed the alcohol between
being dropped off sober at the house and prior to Melissa’s return. Id.
Padilla also argues that because nobody witnessed him drink before getting
into a vehicle or while he had been driving, the State failed to present
substantial retrograde or other evidence to relate Padilla’s BAC of “.08 or
more” back to a time when he was “driving.” Id. We disagree that
substantial evidence was lacking.

¶64 “A defendant is presumed to be impaired from alcohol if his
BAC is above the legal limit at the specified time interval.” Miller, 234 Ariz.
at 296, ¶ 9 (citations omitted). The statutory interval for a “per se DUI
offense” in Arizona is designated as “within two hours of driving or being
in actual physical control” of a vehicle. Id.; A.R.S. § 28–1381(A)(2).

¶65 Moreover, “retrograde analysis is generally considered to be
a reliable scientific discipline.” Miller, 234 Ariz. at 304, ¶ 54; see State v.
Peraza, 239 Ariz. 140, 144, ¶ 7 (App. 2016) (noting that if breath tests occur
more than two hours after driving, the state is required to relate the results
back to the relevant time for the results to be admissible). The State “may
still meet its burden of proving that [Padilla] had a BAC of [.08] or more
within the two-hour period” by using “retroactive extrapolation” and
relating Padilla’s BAC back to within two hours of driving. State v.
Claybrook, 193 Ariz. 588, 590, ¶ 14 (App. 1998) (citation omitted); see also State
v. White, 155 Ariz. 452, 455 (App. 1987) (holding that jury could infer that

16
 STATE v. PADILLA
Decision of the Court

DUI defendant’s BAC test reading of .234 one hour after arrest showed
intoxication at time of arrest). The expert witness who presents BAC
retrograde evidence “can be a police officer or the operator of the machine
if properly certified and in addition possesses superior knowledge,
experience and expertise on the question.” Claybrook, 193 Ariz. at 590, ¶ 15
(citation omitted).

¶66 At trial, Padilla did not challenge Miller’s qualifications as an
expert or the methods she used when conducting her retrograde BAC
analysis. See Ariz. R. Evid. 702. He does not dispute her determination that
his BAC would have been at least .271 at 10:14 a.m. on May 21. Thus, the
issue is whether there is substantial evidence that Padilla was driving
within two hours of 10:14 a.m.

¶67 As discussed supra ¶ 53, R.L. testified that he saw Padilla
driving the Suburban up and down the street around 8:15 a.m. Melissa’s
statements to law enforcement that day reflect that she saw Padilla pull the
Suburban into their home’s driveway shortly before she called 911 at 8:38
a.m. This evidence is sufficient to support a finding that Padilla drove after
8:14 a.m., and, therefore, within two hours of 10:14 a.m. The court did not
err in denying Padilla’s Rule 20 motion as to the A(2) charge.

¶68 Lastly, Padilla argues that police lacked probable cause to
arrest him, and therefore his “consent” to submit to a blood test “is suspect
and should be declared void.” But Padilla never challenged the validity of
the blood draw in the trial court, and so has forfeited this argument on
appeal. State v. Bush, 244 Ariz. 575, 588, ¶¶ 49-52 (2018).

CONCLUSION

¶69 For the foregoing reasons, we affirm Padilla’s convictions and
resulting sentences.

AMY M. WOOD • Clerk of the Court
FILED: AGFV

17