State v. Hamby

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JEFFREY JAMES HAMBY, Appellant.

No. 1 CA-CR 18-0411
FILED 6-20-2019

Appeal from the Superior Court in Mohave County
No. S8015CR201700513
The Honorable Billy K. Sipe, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jennifer M. Perkins joined.
 STATE v. HAMBY
Decision of the Court

W E I N Z W E I G, Judge:

¶1 Jeffrey Hamby appeals his convictions and sentences for three
counts of aggravated assault, two counts of criminal damage and two
counts of driving under the influence (driving while impaired to the
slightest degree and driving while having a certain drug or metabolite in
the body). He argues insufficient evidence supports the convictions. We
disagree and affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 A few minutes before 6 p.m., Hamby was driving eastbound
on a two-lane road in Kingman, weaving in and out of westbound traffic to
pass vehicles in his path. Motorists testified that Hamby was driving at a
“high rate of speed,” “going well over 50” in a 40-MPH zone. A witness
testified, “wow . . . [he] was going fast.”

¶3 At one point, Hamby raced past two cars in a no-passing
zone, but lost control when he returned to the eastbound lane, first veering
onto the dirt shoulder and then overcorrecting into oncoming traffic, where
two westbound motorcyclists, D.A. and J.G., approached. Hamby crashed
into the lead motorcycle, “shear[ing] off” its left side and catapulting the
driver, D.A., forward. The second motorcyclist, J.G., was still in Hamby’s
path and took evasive action to avoid a collision—slamming on the brakes
and dropping his motorcycle, causing it to skid on the pavement.

¶4 Meanwhile, Hamby carried forward on the westbound dirt
shoulder for around 600 feet before swerving “directly in front of [another
westbound driver’s] vehicle,” causing that driver to slam on his brakes to
avoid a collision. Hamby then returned to the eastbound lane and
eventually stopped on the shoulder.

¶5 D.A. suffered serious injuries from the collision. In all, she
endured nine leg infections and at least six surgeries, including the partial
amputation of her left foot and toes. J.G. suffered less serious injuries, but
needed physical therapy for pain in his left knee. Both motorcycles were
destroyed.

¶6 Police interviewed Hamby at the scene. Officer Chaz Truver
generally observed “some symptoms [in Hamby] that would be consistent
with that of a narcotic,” but did not elaborate. Officer Truver asked Hamby
if he would consent to a blood draw because “[t]here was a lot going on at
the scene,” including the number of injuries, and Truver was therefore
unable to perform a field sobriety test. Hamby agreed. His blood tested

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Decision of the Court

positive for lorazepam and methadone, both within the therapeutic range,
and an inactive metabolite of marijuana.

¶7 Lorazepam is a prescription drug and central nervous system
depressant often used to manage anxiety. Lorazepam can impair driving
by “mak[ing] you sleepy, drowsy, [or] slow[ing] your reaction time,” even
when taken as prescribed and at lower levels. Hamby testified he is
prescribed a form of lorazepam for his anxiety, and had taken the drug two
days before the incident.

¶8 Methadone is a narcotic commonly used “to help heroin
addicts stave off the cravings for heroin.” Much like lorazepam, methadone
may impair driving by “slow[ing] your reaction time,” and causing
“sleep[iness]” and “over[] relax[ation],” even when taken within the
therapeutic range. Hamby testified that he takes methadone to manage his
heroin addiction. Indeed, Hamby visited a methadone clinic for a dose of
methadone on the morning of the incident and took a taxi home rather than
drive himself. The combination of lorazepam and methadone may
“compound” a driver’s adverse effects “even more.”

¶9 The State charged Hamby with five felonies. As to D.A., the
State charged Hamby with two counts of aggravated assault, a class 3
felony (Counts 1 and 2), and one count of criminal damage, a class 4 felony
(Count 4). As to J.G., the State charged Hamby with one count of
aggravated assault, a class 3 felony (Count 3), and one count of criminal
damage, a class 5 felony (Count 5). The State also charged Hamby with two
separate counts of driving under the influence, a class 1 misdemeanor;
specifically, driving while impaired to slightest degree (Count 6) and
driving with a certain drug or metabolite in the body (Count 7).

¶10 After a three-day trial, the jury found Hamby guilty as
charged, and concluded that three counts (Counts 1, 2 and 3) were
dangerous. Hamby was sentenced to time-served of 50 days on Counts 6
and 7. For the counts related to D.A., the court sentenced Hamby to
concurrent presumptive terms of 7.5 years on Counts 1 and 2, and 2.5 years
on Count 4. For the counts related to J.G., the court sentenced Hamby to
concurrent presumptive terms of 7.5 years on Count 3, and 1.5 years on
Count 5, to run consecutively to the sentences imposed for Counts 1, 2 and
4.

¶11 Hamby timely appealed. We have jurisdiction under Ariz.
Const. art. 6, § 9, and A.R.S. §§ 12-120.21(A)(1), 13-4031 and -4033(A).

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DISCUSSION

¶12 Hamby argues that his convictions were unsupported by
sufficient evidence. We review challenges to the sufficiency of the evidence
de novo, viewing evidence in the light most favorable to sustaining the
verdict and resolving all reasonable inferences against the defendant. State
v. West, 226 Ariz. 559, 562, ¶ 15 (2011); State v. Salman, 182 Ariz. 359, 361
(App. 1994). We reverse for insufficient evidence only if there is a
“complete absence of probative facts to support the conviction.” State v.
Atwood, 171 Ariz. 576, 597 (1992), disapproved on other grounds by State v.
Nordstrom, 200 Ariz. 229, 241, ¶ 25 (2001).

A. Aggravated Assault And Criminal Damage (Counts 1-5)

¶13 Hamby argues the aggravated assault and criminal damage
convictions (Counts 1-5) should be reversed because there is insufficient
evidence of recklessness or causation.

¶14 Recklessness is an element for aggravated assault and
criminal damage. A.R.S. § 13-1602(A)(1) (criminal damage); A.R.S. § 13-
1203(A)(1), -1204(A) (aggravated assault). A person acts recklessly when
he or she “is aware of and consciously disregards a substantial and
unjustifiable risk” created by his or her conduct. A.R.S. § 13-105(10)(c); In
re William G., 192 Ariz. 208, 213 (App. 1997). “The risk must be of such
nature and degree that disregard of such risk constitutes a gross deviation
from the standard of conduct that a reasonable person would observe in the
situation.” A.R.S. § 13-105(10)(c).

¶15 The jury had ample evidence based on Hamby’s erratic and
unlawful driving to support a finding that he consciously disregarded a
substantial and unjustifiable risk. See, e.g., State v. Miles, 211 Ariz. 475, 482,
¶ 27 (App. 2005) (evidence sufficient to support a finding of defendant’s
recklessness when defendant failed to stop or slow down at a clearly visible
stop sign and entered the intersection “very fast” with tires screeching).
The record shows that he was speeding and weaving in and out of traffic
on a two-lane road; that the collision and injuries resulted from his attempts
to pass two vehicles in a no-pass zone; that his aggressive and erratic
driving caused him to lose control of his vehicle, swerving from the
eastbound dirt shoulder to the westbound dirt shoulder and back again;
and that he kept driving into oncoming traffic after the collision and nearly
caused another head-on collision. His driving was even more dangerous
given the circumstances; it was rush hour and people were driving home
from work.

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¶16 Aside from his unlawful and erratic driving, Hamby tested
positive after the crash for both lorazepam and methadone and had visited
a clinic for a methadone dose the morning of the incident. Both drugs may
impair a driver, especially when taken together. Indeed, Hamby had taken
a taxicab home from his morning appointment at the methadone clinic, and
police officers chose to drive Hamby home rather than letting him drive
after the accident. The jury thus heard evidence that Hamby chose to drive
when his reaction time and judgment might have been impaired, which
provides more evidence of recklessness.

¶17 Hamby also contests the causation finding. He argues that
insufficient evidence was presented that his recklessness caused the
collision. We disagree. The record establishes that Hamby’s actions were
the factual and proximate cause of D.A.’s and J.G.’s injuries. See State v.
Marty, 166 Ariz. 233, 236 (App. 1990) (“In Arizona, both ‘but for’ causation
and proximate cause must be established in a criminal case.”). Hamby does
not argue that D.A.’s or J.G.’s actions caused or contributed to the collision
in any way. But for Hamby’s erratic and unlawful driving, there would
have been no collision, meaning D.A. would not have been thrown from
her motorcycle and J.G. would not have been forced to throw down his
motorcycle. See, e.g., State v. Dodd, 244 Ariz. 182, 185, ¶ 11 (App. 2017)
(concluding a motorist’s recklessness caused injuries when, among other
things, his “high-speed, erratic driving directly caused two collisions”).

B. Driving Under The Influence (Counts 6 And 7)

¶18 Hamby likewise contends “there was insufficient evidence to
support the misdemeanor DUI convictions,” which included separate
offenses for driving while having a certain drug or metabolite in the body
and driving while impaired to the slightest degree. A.R.S. § 28-1381(A)(1),
(3). We address each in turn.

1. Driving With A Drug Or Metabolite In The Body

¶19 Hamby does not dispute that he had both lorazepam and
methadone in his body, or argue it was permissible to drive with these
substances in his body under A.R.S. § 13-3401 or A.R.S. § 28-1381(A)(3). He
instead argues he qualified for a “narrow safe harbor” under § 28-1381(D),
which provides that “[a] person using a drug as prescribed by a medical
practitioner who is licensed . . . and who is authorized to prescribe the drug
is not guilty of violating [A.R.S. § 28-1381(A)(3)].” State v. Bayardi, 230 Ariz.
195, 198, ¶ 10 (App. 2012). This is an affirmative defense which the
defendant must prove by a preponderance of the evidence. Id. at 198, ¶ 11.

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¶20 Hamby claims he “presented proof by a preponderance of the
evidence that he was under the care of a doctor for methadone
maintenance, and used Ativan [lorazepam] as prescribed for anxiety.” He
did not. Hamby only offered his own self-serving testimony on this point.
He did not produce a written prescription or doctor’s letter; he never named
the licensed doctor who prescribed these medications to him; and he never
addressed whether he was taking them as prescribed. He provided no
sworn testimony or unsworn statement from a physician, medical
professional or “practitioner who is licensed” and “authorized to prescribe
the drug[s].” A.R.S. § 28-1381(D).

¶21 The jury heard and weighed the evidence, including Hamby’s
testimony, before rejecting his defense. Because reasonable persons could
have disbelieved Hamby’s testimony or concluded that he had not
established all the requirements of his affirmative defense, the jury properly
could reject it under A.R.S. § 28-1381(D). Substantial evidence thus
supports the conviction.

2. Driving While Impaired To The Slightest Degree

¶22 Hamby last argues that insufficient evidence supports he was
driving while impaired to the slightest degree. A.R.S. § 28-1381(A)(1). But
Hamby tested positive for both lorazepam and methadone shortly after the
incident. And the jury heard evidence that these drugs may impair drivers
when taken within the therapeutic range, especially when taken together.
We cannot find the record lacks evidence that Hamby was “impaired to the
slightest degree.”

CONCLUSION

¶23 We affirm Hamby’s convictions and sentences.

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

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