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State v. Simmons3/21/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
AFFIRMED
Pursuant to a plea agreement, appellant Lesly Tyrone Simmons was convicted of theft, a class three felony. He was placed on probation and ordered to pay $30,355.39 in restitution. After a petition to revoke probation was filed and subsequent to a revocation hearing, the trial court found appellant had violated the conditions of probation, revoked his probation, and sentenced him to the presumptive prison term of 3.5 years. On appeal, appellant challenges the evocation of probation on the ground that the trial court purportedly admitted and relied on unreliable hearsay in determining that appellant had violated probation. He also contends there was no in-court identification of him. We affirm.
We will not disturb a trial court's order finding that a defendant has violated probation unless there is no theory of evidence that would support the factual findings that are the basis for the court's order. State v. Moore, 125 Ariz. 305, 609 P.2d 575 (1980); State v. LeMatty, 121 Ariz. 333, 590 P.2d 449 (1979). Officer Gregory testified at the revocation hearing that he was dispatched to a certain place along the interstate highway where he saw two vehicles and a person he identified as appellant at the bottom of an embankment. Before police had arrived, appellant had gotten out of one of the cars, stepped over the guard rail, and fallen down the embankment. Over appellant's objection, Officer Gregory testified that he talked to appellant, who admitted having been the driver of his car. Appellant told the officer that he had been driving around the corner, that another car had hit his from behind, and that he had lost control and hit another car, going over to the side of the road. Officer Gregory further testified that he had smelled alcohol on appellant's breath and that he had administered the horizontal gaze nystagmus (HGN) test, which he was authorized to give, and that he had noted four cues of intoxication.
The prosecutor next asked the officer questions about whether he suspected appellant had been consuming alcohol. Defense counsel objected and asked to voir dire the witness, which request the trial court denied. Officer Gregory then continued to testify that there was a high probability that appellant had consumed an intoxicating beverage that had impaired him. He arrested appellant and took him to a police station to administer a test for determining his blood alcohol content (BAC) by the use of the Intoxlyzer 5000. While there, appellant did poorly on various field sobriety tests. Officer Gregory again testified over appellant's objection regarding the calibration of the machine by Officer Mayfield, with whom he had not spoken, and his conclusion that the machine was operating within normal limitations. He also testified, over appellant's objection that his testimony was unreliable hearsay, that the BAC test results, taken a few minutes apart, were .153, .174, and .157. And again over objection, the officer testifed that appellant admitted he had been drinking.
The trial court found that appellant had violated probation by committing "extreme DUI" by having a BAC over .15, committing DUI with a BAC over .08, by driving while impaired to the slightest degree, and by consuming an intoxicating beverage. On appeal, appellant contends that Officer Gregory's testimony as to the calibration records of the machine used to determine BAC was unreliable hearsay for which there was no exception warranting its admission. And, he contends that the out-of-court statement of Officer Mayfield regarding calibration "as reflected in the Departmental Report of th
Page 1 2 Arizona DUI Attorneys
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