State v. McKinney

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DAVID JAMES MCKINNEY, Appellant.

No. 1 CA-CR 22-0415
FILED 12-03-2024

Appeal from the Superior Court in Maricopa County
No. CR2019-138240-001
The Honorable Laura Johnson Giaquinto, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Jacob R. Lines
Counsel for Appellee

Bain & Lauritano, PLC, Glendale
By Sheri M. Lauritano
Counsel for Appellant
 STATE v. MCKINNEY
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Samuel A. Thumma and Judge Andrew M. Jacobs joined.

C R U Z, Judge:

¶1 Defendant David James McKinney appeals his convictions
and sentences for two counts of aggravated driving under the influence
(“DUI”). For the following reasons, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 We view the evidence in the light most favorable to
upholding the jury’s verdict. State v. Tamplin, 195 Ariz. 246, ¶ 2 (App. 1999).
McKinney was indicted for two counts of aggravated driving or actual
physical control while under the influence and one count of possession of
marijuana; the State later dismissed the marijuana charge. In March 2022,
McKinney waived his right to counsel and chose to represent himself. The
court appointed advisory counsel for all further proceedings.

¶3 At McKinney’s four-day trial in June 2022, the State first
presented testimony by a Phoenix Crime Lab toxicology supervisor, who
provided her opinion of McKinney’s blood alcohol content (“BAC”) within
two hours of McKinney’s reported contact with police. The State also
presented a law enforcement officer’s testimony that a pedestrian notified
her that “they observed a vehicle hit a pedestrian on a bicycle and then
crash into a pole,” to which McKinney objected. The officer went on to
testify that she approached the indicated vehicle and noticed the engine
was running and the windshield wipers were active. She stated McKinney
was the only person in the vehicle and it appeared he was trying to hide.
The responding officer also testified McKinney was holding a bottle of
alcohol and appeared impaired. McKinney objected several times
throughout the State’s case-in-chief.

¶4 Following the presentation of evidence, McKinney moved for
a judgment of acquittal under Rule 20. The court denied McKinney’s
motion and submitted both counts to the jury for consideration. The jury
found McKinney guilty of both counts, and, given his prior criminal

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history, he was sentenced as a category three offender to two ten-year terms
of imprisonment, to be served concurrently.

¶5 McKinney timely appealed and counsel filed an Anders brief,
which this court subsequently struck. The court’s order requested further
briefing to address nonfrivolous issues, including the indictment’s
language in count 2 and two of the responding officer’s statements the
superior court admitted over McKinney’s objection. McKinney filed such
a brief; the State filed a response and McKinney filed a reply. We have
jurisdiction 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 -4033(A)(1).

DISCUSSION

I. Adequacy of the Indictment.

¶6 Because McKinney did not make a specific objection to the
indictment before the superior court, we review for fundamental error.
State v. Trammell, 245 Ariz. 607, 608, ¶ 4 (App. 2018) (citation omitted). He
bears the burden of showing both that fundamental error exists and that he
is prejudiced by it. Id.

¶7 McKinney argues that the indictment did not properly allege
an alternative manner in which count 2 could have been committed,
seemingly asserting the indictment ran afoul of Arizona’s Rules of Criminal
Procedure and the Sixth Amendment’s notice requirement. See State v.
Freeney, 223 Ariz. 110, 114, ¶ 24 (2009); see also Ariz. R. Crim. P. 13.5(b). He
argues fundamental error exists because “the State failed to include all of
the information in the Indictment which would fully advise [McKinney] of
the nature and charges against him,” specifically regarding count 2 of the
indictment. Citing A.R.S. § 28-1381(A)(2), among other statutes, count 2
alleges McKinney:

did drive or be in actual physical control of a
vehicle, while there was an alcohol
concentration of 0.08 or more in his body within
two hours of the time of driving, while his
driver’s license or privilege to drive was
suspended, cancelled, revoked or refused, or
while a restriction is placed on the person's
driver's license or privilege to drive . . .

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The statute criminalizes “an alcohol concentration of 0.08 or more within
two hours of driving or being in actual physical control of the vehicle.” A.R.S.
§ 28-1381(A)(2) (emphasis added). McKinney argues his conviction should
be reversed because the language of the indictment did not include the
above-emphasized language, and “the lack of information set forth in the
complaint is insufficient to inform [McKinney] of the charges against him.”

¶8 However, the complete phrase – specifying a “blood alcohol
concentration of 0.08% or more within two hours of driving or being in actual
physical control” (emphasis added) – was read during jury selection and
included in both the preliminary and final jury instructions.

¶9 Absent the defendant’s consent, “a charge may be amended
only to correct mistakes of fact or remedy formal or technical defects.” Ariz.
R. Crim. P. 13.5(b). An amendment violates this rule if it changes the nature
of the offense charged, such as when “elements of one offense materially
differ from those of another—even if the two are defined in subsections of
the same statute.” Freeney, 223 Ariz. at 113, ¶ 16.

¶10 McKinney suggests such an amendment here was improper
under Rule 13.5(b), arguing the indictment as originally written contains a
“major defect in the elements of the crime charged and not merely a
technical defect.” However, McKinney fails to show how the amendment
changed the nature of the offense. Freeney, 223 Ariz. at 113, ¶ 16. Contrary
to McKinney’s argument, in State v. Rivera, this court explained that under
DUI statutes, “driving” and “actual physical control” should be understood
as “alternative (and not mutually exclusive) ways of violating the DUI laws
by either driving or non-driving behavior.” 207 Ariz. 69, 72–73, ¶ 10 (App.
2004). Thus, “driving and actual physical control” are better viewed as
“alternative ‘theor[ies] of culpability’” rather than “independent crime[s].”
Id. Because the indictment charges McKinney under this alternative-means
statute, it “need not inform the defendant of the theory by which the state
intends to prove that charge so long as the defendant receives sufficient
notice to reasonably rebut the allegation.” Id. at 69, ¶¶ 12–13. Accordingly,
the amendment here did not change the nature of the crime McKinney was
charged with. See Freeney, 223 Ariz. at 113, ¶ 16 (citation omitted).

¶11 McKinney also fails to show prejudice. McKinney does not
contend the amendment prejudiced “his litigation strategy, trial
preparation, examination of witnesses, or argument; nor did he request a
trial continuance or recess.” Freeney, 223 Ariz. at 115, ¶ 28 (citing State v.
Ramsey, 211 Ariz. 529, 533 ¶ 7 (App. 2005)). Thus, he has not met his burden
under fundamental error review. See State v. Johnson, 198 Ariz. 245, 248, ¶

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57 (App. 2000). For these same reasons, McKinney has shown no Sixth
Amendment violation. Freeney, 223 Ariz. at 114, ¶ 26 (A defendant is not
prejudiced, and the Sixth Amendment’s notice requirement is satisfied, so
long as he “received actual notice of the charges” against him from any
source.).

II. Hearsay.

¶12 “We review a trial court’s ruling on the admissibility of
evidence over hearsay objections for abuse of discretion.” State v. Chavez, 225 Ariz. 442, 443, ¶ 5 (App. 2010). McKinney argues the court erred by
allowing the State to introduce “two hearsay statements”1 as part of the
responding law enforcement officer’s trial testimony. In the first statement
at issue, the officer testified she got involved in the case because she was
“flagged down by a citizen” who “said that they observed a vehicle hit a
pedestrian on a bicycle and then crash into a pole.” McKinney objected on
hearsay grounds, and the court instructed the officer to “stop [her] answer
at that.” On appeal, McKinney argues this statement is impermissible
hearsay that is “testimonial in nature.”

¶13 A statement is not hearsay if it is not offered for the truth of
the matter. See Ariz. R. Evid. 801(c). Here, the record supports a finding
that this statement was not offered to prove that McKinney struck a
pedestrian and then crashed into a pole; rather, the statement was offered
to show how the officer became involved in the case. During closing
argument, the State asserted that McKinney “hit or almost hit a pedestrian,
which is not what we're here for. We’re here for the DUI.” The State again
mentioned the pedestrian, conceding that “there was no pedestrian here to
testify about what would happen,” but adding that “the State is not
required to put that person on the stand. That pedestrian is the reason that
[the] Officer [] was flagged down and stopped that day, August 13th of

1 McKinney also argues that admission of the two statements resulted
in a violation of the Confrontation Clause under the Sixth Amendment to
the U.S. Constitution. Because the first statement was not offered for its
truth, it cannot be deemed testimonial, and the Confrontation Clause was
not properly invoked. The second statement was made at trial, by a
testifying witness, who McKinney cross-examined. The right to
confrontation of the witness was met and the Confrontation Clause
argument is inapplicable. Therefore, we do not consider these arguments
further.

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2019. That’s why the investigation started. That’s absolutely not why it
continued.”

¶14 McKinney waived any objection to testimony regarding his
colliding with a person on a bicycle when he elicited this testimony himself.
The following exchange took place:

McKinney: When you were flagged down, what was the –
what were you flagged down for?

Witness: For the white vehicle that you were driving
collided with a person on a bike and then
collided with a pole in a parking lot.

On this record, McKinney has neither shown the officer’s statement was
hearsay, nor that it was error to allow its introduction.

¶15 Turning to the officer’s second statement, McKinney argues it
was error to introduce the officer’s testimony that she was “flagged down
at 22:27 or 8:00pm.” We assume he refers to the officer’s answer when the
State asked her what time she responded to the scene; she replied that she
was “flagged down at 2227, so 8:00 p.m.” McKinney made a general
objection to the statement, which the court overruled.

¶16 However, the officer’s testimony that she responded to the
scene around 8:00 p.m. is not an out-of-court statement, see Ariz. R. Evid.
801(c), but rather her own in-court testimony based upon her personal
knowledge of the facts. On this record, McKinney has not shown the
admission of the officer’s testimony was improper under the Arizona Rules
of Evidence. Accordingly, McKinney has not shown error.

III. Sufficiency of Evidence.

¶17 McKinney argues the superior court erred in denying his Rule
20 motion, a ruling we review de novo. State v. West, 226 Ariz. 559, 562, ¶
15 (2011). When reviewing the evidence, the question is whether “any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” State v. Cox, 217 Ariz. 353, 357, ¶ 22 (2007)
(internal citation and quotations omitted).

¶18 In reviewing the sufficiency of the evidence, we test the
evidence “against the statutorily required elements of the offense,” State v.
Pena, 209 Ariz. 503, 505, ¶ 8 (App. 2005), and neither reweigh conflicting

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evidence nor assess witnesses’ credibility, see State v. Buccheri-Bianca, 233
Ariz. 324, 334, ¶ 38 (App. 2013). “[T]he 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.” West, 226 Ariz. at 562, ¶ 16 (quotation
omitted). Sufficient evidence may be direct or circumstantial. Id.

¶19 McKinney correctly notes that, for count 1, the State was
required to prove he “did drive or was in actual physical control of a vehicle
while under the influence of an intoxicating liquor, while his driver’s
license or privilege to drive was suspended, cancelled, revoked, or
refused.” McKinney argues the State did not make the required showing
because the State “failed to bring in any witnesses who testified that
[McKinney] was actually driving,” and “[n]o identification placed
[McKinney] on the road behind the wheel in the vehicle.”

¶20 However, sufficient trial evidence supported the jury’s guilty
verdict here. The responding officer testified she arrived on scene to find a
white vehicle had crashed into a pole. McKinney was the only person
inside the car, and he was “laying down in the drivers’ seat” while reaching
around the area. The officer also testified the vehicle was on, “the
windshield wipers were going,” and there was “a bottle of alcohol on the
seat.” The officer added that McKinney “looked like he tried to start the
ignition even though it was still on and then tried to put it in drive and
reverse, but it was stuck on the pole, I think.” The responding officer also
testified that McKinney had a bottle of alcohol in his hands when she
opened the door of his vehicle, and that he showed symptoms of
impairment, including “[b]lood shot, watery eyes, slurred speech . . . [and]
impaired movement.”

¶21 The jury could infer from these facts that McKinney had
recently driven the car into the pole. See State v. Larriva, 178 Ariz. 64, 66
(App. 1993); see also Potter v. Arizona Dept. of Transp., 204 Ariz. 73, 78, ¶ 17
(App. 2002) (holding a driver is not immune “from prosecution for DUI if
the state can prove that the person had driven while intoxicated before
surrendering control of his or her vehicle.”).

¶22 Even if the jury did not infer that McKinney drove while
under the influence, it could reasonably conclude that he violated the
charged statute by being in “actual physical control” of a vehicle while
impaired. Noting Arizona’s DUI statutes do not define “actual physical
control,” “whether a driver had actual physical control is a question for the
fact finder and should be based upon consideration of all the

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circumstances.” State v. Love, 182 Ariz. 324, 328 (1995). Because the State
provided evidence that McKinney was awake, in the driver’s seat, with the
engine running, the jury could reasonably conclude he had actual physical
control of his vehicle when the responding officer approached him.

¶23 For count 2, the State was required to prove McKinney had
“an alcohol concentration of 0.08 or more within two hours of driving or
being in actual physical control of the vehicle and the alcohol concentration
results from alcohol consumed either before or while driving or being in
actual physical control of the vehicle.” A.R.S. § 28-1381(A)(2). McKinney
argues the State failed to meet its burden because “the State is unable to
show that he consumed alcohol within two hours of driving or being in
actual physical control of the vehicle. At some unknow[n] point he pulled
over and it is unclear if he drank before or after.”

¶24 In addition to the responding officer’s description of
McKinney’s symptoms of impairment, the jury also heard from the Phoenix
Crime Lab toxicology supervisor. She testified that, based on retrograde
extrapolations, she could estimate McKinney’s BAC within two hours of
the police stop, which was reported to have occurred at 10:25 p.m., or “2225
hours.” The toxicologist testified that McKinney’s blood kit indicated that,
at 1:35 a.m., the time it was drawn, he had a BAC of 0.265. If McKinney had
physical control of his vehicle around 10:25 p.m., when he encountered
police, his BAC “just within two hours” of that physical control was
estimated to range between 0.251 and 0.308 at 12:24 a.m.

¶25 On the evidence presented, the jury could reasonably infer
McKinney had “an alcohol concentration of 0.08 or more within two hours
of driving or being in actual physical control” of his vehicle. See A.R.S. §
28-1381(A)(2). Accordingly, the superior court did not err in denying
McKinney’s motion for new trial.

CONCLUSION

¶26 For the foregoing reasons, we affirm McKinney’s convictions
and resulting sentences.

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

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