State v. McKinley

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

MELISSA PAIGE MCKINLEY, Appellant.

No. 1 CA-CR 23-0202
FILED 05-23-2024

Appeal from the Superior Court in Mohave County
No. S8015CR202100488
The Honorable Billy K. Sipe Jr., Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Emily Tyson-Jorgenson
Counsel for Appellee

Jill L. Evans Attorney at Law, Flagstaff
By Jill L. Evans
Counsel for Appellant
 STATE v. MCKINLEY
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Andrew M. Jacobs delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge David D. Weinzweig joined.

J A C O B S, Judge:

¶1 Melissa McKinley appeals her convictions and sentences for
two counts of aggravated assault, leaving the scene of an injury accident,
and driving under the influence (DUI). Because her claims of insufficient
evidence and incorrect jury instructions identify no reversible error, we
affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On April 18, 2021, McKinley drove her Ford Taurus into a line
of cars stopped at a red light in Bullhead City. McKinley was driving about
40 to 50 miles per hour, and there was no sign she braked, or otherwise tried
to avoid the collision, before impact. The force of the crash propelled the
first vehicle she struck—a Dodge Challenger stopped in the left-hand turn
lane—100 to 125 feet into the intersection’s opposite lanes of traffic and tore
off its rear bumper cover and right rear tire. The driver of the Dodge broke
both her heels and suffered facial lacerations that left permanent scars. A
passenger in the Dodge cracked two vertebrae and received a contusion to
his head. After hitting the Dodge, McKinley’s Taurus struck two more
vehicles.

¶3 M.W., an off-duty California Highway Patrol officer who was
stopped at the same intersection, saw the collision. M.W. told his wife to
call 911 and approached McKinley as she exited her car. When M.W. asked
McKinley what happened, she “put her hands in the air and said, ‘Woo,
Jesus took the wheel.’” M.W. believed McKinley was “under the influence
of something” based on the nature of the crash and “the way she was acting
afterwards.” M.W. saw McKinley looking around as though intending to
leave, and he told her she needed to stay and that police were on the way.
McKinley nonetheless left on foot, walking away from the collision site
along the shoulder of the road. When a police officer reached the scene a
short time later, M.W. pointed out McKinley.

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¶4 The officer drove his patrol vehicle to McKinley, who was
“walking briskly” about “200 yards from the accident scene.” The officer
exited his vehicle and directed McKinley to place her hands behind her
back. McKinley did not comply. The officer then took McKinley to the
ground and handcuffed her. He drove her back to the collision site and told
her she was under arrest for leaving the scene of an injury accident.
McKinley would not tell the officer her name and repeatedly said “God” or
“Christ” directed her conduct. The officer could smell marijuana from
where McKinley sat in the backseat of his vehicle. After being advised of
her Miranda rights and acknowledging she understood them, McKinley
admitted she smoked marijuana, including earlier that day, and consented
to a blood draw. When asked if she had anything to drink that day, she
responded, “[n]othing but the holy spirit.” McKinley said she did not
believe she was injured and that she had “never been more alive.” The
officer told a colleague at the accident scene that he was unsure whether
this was a DUI or a mental health issue.

¶5 The officer transported McKinley to a hospital where medical
personnel drew her blood and cleared her to be transported to jail. At the
jail, the officer asked McKinley to perform two field sobriety tests that
entailed counting slowly while walking heel to toe and balancing on one
leg. McKinley began each test as instructed but then departed from the
officer’s directions, by performing the tests more quickly than instructed
and launching into dance-like movements when she was supposed to be
standing still.

¶6 McKinley’s blood test results showed 13 nanograms of
tetrahydrocannabinol (THC)—the primary active constituent of
marijuana—per milliliter in her system (plus or minus three nanograms per
milliliter), as well as carboxy-THC, a byproduct of THC metabolism. The
State charged her with two aggravated assaults (using a deadly weapon or
dangerous instrument against the injured driver and passenger of the
Dodge), leaving the scene of an injury accident, misdemeanor resisting
arrest, and misdemeanor DUI (impaired to the slightest degree).

¶7 At trial, McKinley testified she had driven from her home in
Louisiana to Arizona, with limited stops, a few days before the accident and
had “difficulty . . . adjusting” back to “normal.” She said she took an
“edible” on each of the two days before the accident and took “one little
hit” of a marijuana joint about four to five hours before the accident.
McKinley had lived in Bullhead City about 20 years prior and said she was
looking at an apartment in which she had lived, and was distracted by
memories when she realized that traffic “three cars deep” was stopped right

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in front of her. She testified that she smoked marijuana “here and there”
but was “not a habitual smoker” and that she felt no effects of marijuana
while driving on the day of the accident. McKinley attributed her behavior
after the collision to adrenaline and shock.

¶8 A forensic scientist testified for the State that THC levels
typically fall to less than two nanograms per milliliter within two to three
hours after marijuana use, but a defense forensic expert testified that a
regular marijuana user could have a “baseline” amount of THC in their
system equivalent to the amount detected in McKinley’s blood results,
hours or even days after using. Both experts testified that there is no
established level of THC that is presumptively impairing. The defense
expert testified that a regular user would generally have a higher tolerance
than a less frequent user, but he acknowledged that even a frequent
marijuana user could be impaired by the amount of THC detected in
McKinley’s blood. THC’s effects include euphoria, inattention, impaired
thought processing, misestimation of time and distance, and slowed
reaction times.

¶9 A jury acquitted McKinley of resisting arrest but found her
guilty of the remaining charges. The superior court sentenced her to 15
years’ imprisonment for the aggravated assault convictions under the
dangerous offense sentencing statute, to a consecutive one-year prison term
for leaving the scene of an injury accident, and to 10 days in jail for
misdemeanor DUI.

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

DISCUSSION

¶11 McKinley argues there was insufficient evidence to support
her DUI and aggravated assault convictions. She also contends, as to the
aggravated assault counts, that the court should have instructed jurors on
negligence and asked them to explicitly determine whether the offenses
were dangerous. We address each contention in turn.

I. Sufficient Evidence Supports McKinley’s Conviction for DUI.

¶12 We review a claim of insufficient evidence de novo, viewing
all facts and resolving all evidentiary conflicts against the defendant and in
favor of the verdict. State v. Pena, 235 Ariz. 277, 279 ¶ 5 (2014). Our review
is limited to whether substantial evidence supports the verdict. Id.

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“Substantial evidence is more than a mere scintilla and is such proof that
reasonable persons could accept as adequate and sufficient to support a
conclusion of defendant’s guilt beyond a reasonable doubt.” State v. Ellison, 213 Ariz. 116, 134 ¶ 65 (2006) (cleaned up). We do not “reweigh the
evidence to decide if [we] would reach the same conclusions as the trier of
fact.” State v. Barger, 167 Ariz. 563, 568 (App. 1990).

¶13 McKinley’s DUI charge required jurors to find she was
driving while “impaired to the slightest degree” by “any drug.” A.R.S. § 28-
1381(A)(1). The jury’s verdict is supported by substantial evidence.
McKinley had THC in her system at the time of the accident and, as both
parties acknowledged, there is no presumptive threshold of an impairing
level of THC. Informed by evidence about THC’s known effects, jurors
could infer from the circumstances of the accident and McKinley’s
statements and behavior that she was driving while impaired by THC.

II. Sufficient Evidence Supports McKinley’s Convictions for
Aggravated Assault.

¶14 To find McKinley guilty of each aggravated assault count, the
jury needed to determine that she “[i]ntentionally, knowingly or recklessly
caus[ed] . . . physical injury” to each victim “us[ing] a deadly weapon or
dangerous instrument.” A.R.S. §§ 13-1203(A)(1), -1204(A)(2). An assault
causing physical injury is committed “recklessly” if the defendant “is aware
of and consciously disregards a substantial and unjustifiable risk that
[physical injury] will occur” and if the risk is “of such nature and degree
that [its] disregard . . . 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). “A person who creates such a risk but who is unaware of
such risk solely by reason of voluntary intoxication also acts recklessly with
respect to such risk.” A.R.S. § 13-105(10)(c). “‘Intoxication’ means any
mental or physical incapacity resulting from use of drugs, toxic vapors or
intoxicating liquors.” A.R.S. § 13-105(24). A “dangerous instrument” is
“anything that under the circumstances in which it is used, attempted to be
used or threatened to be used is readily capable of causing death or serious
physical injury.” A.R.S. § 13-105(12).

¶15 Substantial evidence supports the jury verdicts for
aggravated assault. McKinley does not dispute that she used her car—
which is “readily capable of causing death or serious physical injury”—to
cause the accident resulting in physical injury to each victim. Jurors could
find, based on the evidence presented, that McKinley acted recklessly when
she drove 40 to 50 miles per hour without braking into a line of cars stopped

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at a major intersection in the middle of the day. First, jurors could find that
McKinley’s voluntary marijuana consumption compromised her awareness
of the substantial and unjustifiable risk posed by her distracted driving.
Alternatively, jurors could find that McKinley’s level of distraction—even
if unaffected by her marijuana use—was reckless under the circumstances.
See State v. Miles, 211 Ariz. 475, 482 ¶ 27 (App. 2005) (explaining that
evidence the defendant “failed to stop or even slow down at a clearly visible
stop sign and that he had entered the intersection ‘very fast’” was sufficient
for jurors to find he was “aware of and had consciously disregarded a
substantial and unjustifiable risk that other motorists or pedestrians could
be seriously injured” and “that his actions constituted a gross deviation
from conduct a reasonable person would observe in a similar situation.”).

III. The Superior Court Did Not Commit Fundamental Error by Not
Instructing Jurors on Negligence Sua Sponte.

¶16 McKinley argues that even if there was substantial evidence
she acted recklessly, the superior court should have defined negligence for
jurors so they could make an informed determination whether her conduct
rose to the level of recklessness. “‘Criminal negligence’ means . . . that a
person fails to perceive a substantial and unjustifiable risk that the result
will occur or that the circumstance exists . . . [and] the failure to perceive it
constitutes a gross deviation from the standard of care that a reasonable
person would observe in the situation.” A.R.S. § 13-105(10)(d). Civil
negligence is satisfied by “[m]ere inadvertence” of any “‘unreasonable’
risk.” In re William G., 192 Ariz. 208, 213 (App. 1997).

¶17 We consider de novo whether the superior court properly
instructed the jury, looking to the instructions “as a whole to determine
whether the jury received the information necessary to arrive at a legally
correct decision.” State v. Ewer, 254 Ariz. 326, 329 ¶ 10 (2023) (cleaned up).
“A conviction will not be reversed based on the instructions unless, taken
as a whole, they misled the jurors.” State v. Zaragoza, 221 Ariz. 49, 53 ¶ 15
(2009). Because McKinley did not request a negligence instruction at trial,
or object to its omission, she must establish fundamental, prejudicial error.
State v. Bearup, 221 Ariz. 163, 168 ¶ 22 (2009); see also State v. Gallegos, 178
Ariz. 1, 12 (1994) (“[A] trial judge’s failure to give an instruction sua sponte
provides grounds for reversal only if such failure is fundamental error.”).

¶18 We see no error, much less fundamental error. A defendant
is entitled to a “lesser-included offense instruction if it is supported by the
evidence.” State v. Wall, 212 Ariz. 1, 4 ¶ 17 (2006). But “[w]here no lesser
included offense exists, it is not error to refuse the instruction.” State v.

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Allen, 253 Ariz. 306, 343 ¶ 119 (2022) (cleaned up). Because there is no
offense of negligent aggravated assault, McKinley was not entitled to a jury
instruction on negligence. No authority requires the jury to be instructed
on a lesser mental state that is not an element of a charged crime.

¶19 Nor was a negligence instruction needed for jurors to
properly determine the aggravated assault counts. Those charges required
jurors to find McKinley acted recklessly, knowingly, or intentionally.
McKinley was free to argue, and did, that her conduct was merely
negligent. “Although a party is entitled to an instruction on all theories
reasonably supported by the evidence, ‘when a jury is properly instructed
on the applicable law, the trial court is not required to provide additional
instructions that do nothing more than reiterate or enlarge the instructions
in defendant’s language.’” State v. Forde, 233 Ariz. 543, 566 ¶ 91 (2014)
(quoting State v. Bolton, 182 Ariz. 290, 309 (1995)). The definitions of
intentionally, knowingly, and recklessly provided by the superior court
inherently exclude lesser mental states that do not satisfy the elements of
the definitions. The instructions given did not mislead the jury, and the
superior court did not have to provide additional instructions, or a gloss on
the existing instructions, that would put into words what “recklessly” does
not mean.

IV. The Superior Court Did Not Commit Fundamental Error by Not
Asking Jurors to Make an Explicit Finding That McKinley
Committed a “Dangerous Offense” Under A.R.S. § 13-704.

¶20 The State charged McKinley with committing aggravated
assault “with a deadly weapon or dangerous instrument” subject to an
enhanced sentence for dangerous offenses under A.R.S. § 13-704. A
“dangerous offense,” for purposes of A.R.S. § 13-704, is “an offense
involving the discharge, use or threatening exhibition of a deadly weapon
or dangerous instrument or the intentional or knowing infliction of serious
physical injury on another person.” A.R.S. § 13-105(13).

¶21 With both parties’ approval, the superior court declined to
request separate “dangerous offense” findings from the jury during its
deliberations on the aggravated assault counts. The court later sentenced
McKinley on those convictions to enhanced terms under A.R.S. § 13-704(A).

¶22 McKinley now argues the court erred by not asking jurors to
explicitly find that the aggravated assaults were “dangerous offenses.”
Because she did not raise this contention at trial, she must establish

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fundamental, prejudicial error. State v. Escalante, 245 Ariz. 135, 138 ¶ 1
(2018).

¶23 McKinley fails to establish error, fundamental or otherwise,
because “no specific finding of dangerousness is required where an element
of the offense charged requires proof of the dangerous nature of the felony.”
State v. Smith, 146 Ariz. 491, 499 (1985); see also State v. Caldera, 141 Ariz. 634,
637–38 (1984) (reasoning that a jury’s dangerousness determination may be
made either explicitly by special verdict or implicitly when dangerousness
is “a necessary element in the felony for which the appellant was originally
convicted.”).

¶24 Because jurors necessarily determined that the aggravated
assault counts were dangerous offenses when they found McKinley guilty
of those charges, the superior court could sentence her under § 13-704
without a separate finding. Compare A.R.S. § 13-1204(A)(2) (defining
aggravated assault as an assault by a “person us[ing] a deadly weapon or
dangerous instrument“), with A.R.S. § 13-105(13) (defining dangerous
offense as “an offense involving the . . . use . . . of a deadly weapon or
dangerous instrument”); see also State v. Suniga, 145 Ariz. 389, 396 (App.
1985) (finding dangerous offense “implicit” in guilty verdict for aggravated
assault by use of a deadly weapon or dangerous instrument).

¶25 We are unpersuaded by McKinley’s reliance on State v. Larin, 233 Ariz. 202, 213 ¶¶ 41–42 (App. 2013), in which this court held the
superior court could not sentence the defendant under A.R.S. § 13-704
without a specific dangerousness finding by the jury even though the jury
found the defendant guilty of an inherently dangerous offense. The court
in Larin confirmed the general rule that “a jury need not make a finding of
dangerousness where it is ‘inherent in the crime.’” Id. at 212 ¶ 38. The
court’s decision not to apply that rule in Larin was based on an unusual
peculiarity of the case—specific information suggesting the jury might have
found a dangerous offense allegation unproven despite its verdict. Id. at
¶ 42. No such circumstance was present in McKinley’s case.

¶26 Yet even assuming that the superior court should have
submitted the dangerous offense finding to the jury, McKinley does not
establish reversible error. As noted above, McKinley’s failure to timely
object to the court’s omission obligates her to show that any error was both
fundamental and prejudicial. Escalante, 245 Ariz. at 138 ¶ 1. Denying a
defendant the right to have a jury find sentence-enhancing facts constitutes
fundamental error. State v. Price, 217 Ariz. 182, 186–87 ¶ 21 (2007); see also
Allen, 253 Ariz. at 361 ¶ 211 (“The imposition of an illegal sentence

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constitutes fundamental error that requires us to remand for
resentencing.”). But McKinley does not show prejudice because no
reasonable jury “could have plausibly and intelligently” failed to find that
the aggravated assaults were dangerous offenses in her case. Escalante, 245
Ariz. at 144 ¶ 31. McKinley did not contest that she injured the victims with
her car and she acknowledged in her testimony that a car could be
dangerous and cause death. See State v. Cleere, 213 Ariz. 54, 58–59 ¶ 12 (App.
2006); State v. Ruggiero, 211 Ariz. 262, 268 ¶ 28 (App. 2005). Given the
evidence presented at McKinley’s trial, the superior court’s failure to
submit a dangerous offense finding to the jury “was at worst harmless
error.” State v. Anderson, 211 Ariz. 59, 61 ¶ 7 (2005).

CONCLUSION

¶27 We affirm McKinley’s convictions and sentences.

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

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