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State v. Williams6/27/1991
ere was no evidence of his specific intent to use his truck as a dangerous instrument. Although our former assault with a deadly weapon statute required a specific intent to do harm, State v. Balderrama, 97 Ariz. 134, 397 P.2d 632 (1964), that is no longer the case. The current statute does not require a showing of specific intent. State v. Venegas, 137 Ariz. 171, 669 P.2d 604 (App. 1983); State v. Carrillo, 128 Ariz. 468, 626 P.2d 1100 (App. 1980).
DENIAL OF EXPERT
We find no merit to appellant's contention that the trial court erred in refusing to appoint an expert accident reconstructionist. Contrary to appellant's assertion, he did not request that an expert be appointed in his motion for continuance.
DENIAL OF RIGHT TO GRAND JURY
After the grand jury indicted appellant, the state filed an allegation of dangerousness pursuant to A.R.S. § 13-604(K) as well as an allegation that the aggravated assault count was a dangerous crime against children pursuant to A.R.S. § 13-604.01(B). Appellant contends that the amendments were improperly permitted, arguing that it is the grand jury, rather than the prosecutor, who should make such allegations. We disagree. Although the supreme court has recently ruled that a grand jury has authority to consider the issue of the punishment to be imposed, State v. Burge, 167 Ariz. 25, 804 P.2d 754 (1990), it did not rule that a prosecutor no longer has authority to seek an addendum to the indictment for sentencing enhancement allegations.
ADMISSIBILITY OF BLOOD ALCOHOL CONTENT
Appellant contends that the court erred in permitting the state to present evidence of appellant's BAC, arguing that the state failed to show that its expert was licensed to perform BAC tests as required by former A.R.S. § 28-692(G). That statute, however, applied only to DUI prosecutions; it did not limit the admissibility of a defendant's blood alcohol level in other proceedings. In this case, there was no DUI charge. The expert testified about his educational background, his subsequent training, his employment experience, and his extensive experience in testing blood samples for alcohol content. The expert also stated that he had previously testified as an expert in 20 to 30 cases. Sufficient foundation was laid and we find no error.
Appellant also complains that the state failed to show an adequate chain of custody of his blood sample prior to its being tested. A doctor testified that she drew blood from appellant and gave it to a Department of Public Safety (DPS) officer who testified that he put it into a blood kit, sealed it, and placed it in the DPS refrigerator with instructions to send it to the DPS lab. The DPS criminologist who tested the blood testified that he broke the seals on
the kit. The record supports the court's determination that the state showed an adequate chain of custody of the sample.
PROPRIETY OF SENTENCE ENHANCEMENT
Finally, appellant contends that it was improper to aggravate his sentence either by the use of an automobile as a dangerous instrument or pursuant to the dangerous crimes against children statute.
Appellant argues that an automobile cannot properly serve as a dangerous instrument for aggravation purposes because the aggravated assault elements were identical to the elements of his DUI, citing State v. Orduno, 159 Ariz. 564, 769 P.2d 1010
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