State v. Molina

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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
A RIZONA COURT OF A PPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

ERIC PINA MOLINA, Appellant.

No. 1 CA-CR 19-0529
FILED 7-14-2020

Appeal from the Superior Court in Maricopa County
No. CR2017-128193-001
The Honorable Julie Ashworth LaFave, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jefferey L. Force
Counsel for Appellant

STATE v. MOLINA
Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge D. Steven Williams joined.

T H U M M A, Judge:

¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297 (1969). Counsel for defendant Eric Pina
Molina has advised the court that, after searching the entire record, he has
found no arguable question of law and asks this court to conduct an Anders
review of the record. Molina was given the opportunity to file a
supplemental brief pro se but has not done so. This court has reviewed the
record and has found no reversible error. Accordingly, Molina’s
convictions and sentences for four counts of aggravated driving under the
influence (DUI) and one count of possession of marijuana are affirmed.

FACTS1 AND PROCEDURAL HISTORY

¶2 Early one morning in June 2017, James T. was visiting with a
friend in Mesa when he heard a crash. When they went outside, a silver
Dodge Charger with two flat tires and significant front-end damage pulled
up behind their vehicles. A man got out of the driver’s seat of the Charger
and asked James not to contact the police. Seeing two children in the
backseat, James called 9-1-1.

¶3 Mesa Police Department officers arrived at about 2:30 a.m.
The children, estimated at five and six-years-old, were waiting outside of
the Charger. James identified Molina as the driver. Molina denied using
alcohol or drugs, but admitted he was “acting drunk,” smelled strongly of
alcohol, had bloodshot watery eyes and slurred speech. Molina was unable
to follow the officers’ instructions and was arrested on suspicion of DUI.
During a search incident to arrest, a small bag containing a green leafy

1 “We view the facts in the light most favorable to sustaining the convictions

with all reasonable inferences resolved against the defendant.” State v.
Harm, 236 Ariz. 402, 404 ¶ 2 n.2 (App. 2015) (quoting State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).

2

STATE v. MOLINA
Decision of the Court

substance was found in Molina’s pocket. Subsequent testing confirmed
Molina’s admission that the substance was marijuana.

¶4 At the station, officers obtained a warrant for a sample of
Molina’s blood. The sample, drawn at 3:46 a.m., indicated his blood alcohol
concentration (BAC) was 0.241. The State charged Molina with four counts
of aggravated driving under the influence (DUI) (based on his BAC, driving
on a suspended license and the children in the car) and one count of
possession of marijuana.

¶5 At trial, a forensic scientist testified a man of Molina’s size
would have had to drink more than a dozen standard alcoholic beverages
to achieve a BAC of 0.241, which was three times the BAC level of 0.08,
where impairment is presumed. A representative from the Motor Vehicle
Department (MVD) testified that Molina’s driver’s license had been
suspended since 2009. Molina was notified of the suspension by mail
several times and he had since pled guilty to driving on a suspended license
three times, most recently in March 2017. Molina’s license remained
suspended in June 2017.

¶6 A jury found Molina guilty as charged. The court found
Molina had one prior historical felony conviction, sentenced him as a non-
dangerous, repetitive offender to concurrent presumptive prison terms, the
longest of which is four-and-a-half years and credited him with 87 days of
presentence incarceration. This court has jurisdiction over Molina’s timely
appeal pursuant to Article 6, Section 9, of the Arizona Constitution and
Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-4031 and 13-
4033(A) (2020).2

DISCUSSION

¶7 This court has read and considered counsel’s brief and has
searched the record provided for reversible error and has found none. See
Leon, 104 Ariz. at 300; State v. Clark, 196 Ariz. 530, 537 ¶ 30 (App. 1999).

¶8 All of the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. So far as the record reveals, Molina
was represented by counsel at all critical stages of the proceedings. See State
v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at critical stages). Molina
was present for most of the proceedings but was tried in absentia. See State
v. Bohn, 116 Ariz. 500, 503 (1977) (right to be present at critical stages); Ariz.

2 Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated.

3

STATE v. MOLINA
Decision of the Court

R. Crim. P. 9.1 (waiver of right to be present). The jury was properly
comprised of eight jurors, and the record shows no evidence of jury
misconduct. See A.R.S. § 21-102(B); Ariz. R. Crim. P. 18.1(a). The court
properly instructed the jury on the elements of the charged offenses, the
State’s burden of proof and Molina’s presumption of innocence.

¶9 At sentencing, Molina was given an opportunity to speak,
and the court stated on the record the evidence and materials it considered
and the factors it found in imposing the sentences. See Ariz. R. Crim. P. 26.9,
26.10. Although the record does not contain a presentence report, it is
apparent the court ordered the report and considered it, as well as the
mitigation information submitted by Molina, before pronouncing sentence.
Under these circumstances, the absence of the presentence report in the
appellate record does not amount to reversible error. See State v. Maese, 27
Ariz. App. 379, 380 (1976); Ariz. R. Crim. P. 26.4(c) (requiring the
presentence report to be “delivered to the sentencing judge and to all
counsel” but not filed). The sentences imposed were within the statutory
limits. See A.R.S. § 13-703(B), (I).

CONCLUSION

¶10 Molina’s convictions and sentences are affirmed. Upon the
filing of this decision, defense counsel is directed to inform Molina of the
status of the appeal and of his future options. Defense counsel has no
further obligations unless, upon review, counsel identifies an issue
appropriate for submission to the Arizona Supreme Court by petition for
review. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Molina shall have
30 days from the date of this decision to proceed, if he desires, with a pro
se motion for reconsideration or petition for review.

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

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