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State v. Stidham5/1/1990
Appellant Tom Dean Stidham (defendant) was charged by indictment with driving under the influence (DUI) while his license was suspended, cancelled, revoked or refused. The jury found him guilty as charged. He received a mitigated sentence of 1.5 years. Defendant timely appealed.
The facts may be summarized as follows, viewed in the light most favorable to sustaining the conviction. State v. Villafuente, 142 Ariz. 323, 327, 690 P.2d 42, 46 (1984), cert. denied, 469 U.S. 1230, 105 S.Ct. 1234, 84 L.Ed.2d 371 (1985). On December 25, 1987, Officer John Allen (Allen) stopped the defendant after he observed the defendant's poor driving. When Allen asked for identification, defendant produced an Arizona Motor Vehicle Department
(MVD) issued identification-only card. Allen smelled a strong odor of alcohol on the defendant, and the defendant admitted he had consumed one drink. The officer arrested defendant. Inside the car, the officer found a jar containing the alcoholic drink commonly known as a "screwdriver". Defendant refused both the field sobriety and breath analysis tests. Allen was the only witness who testified at trial.
The defendant moved for a directed verdict on three grounds, one of which was that there was no evidence that defendant's license was revoked as of December 25, 1987. The court found that there was sufficient evidence of revocation and submitted the charge to the jury.
Defendant also objected to a proposed instruction on revocation on the grounds that it was a comment on the evidence and that it shifted the burden of proof to the defendant. The court overruled the objection to the instruction. In closing arguments, both counsel discussed whether there was sufficient evidence of revocation at the time of the offense.
Defendant's first argument on appeal is that the court should have granted the motion for acquittal because there was insufficient evidence that his license was revoked on December 25, 1987. Defendant does not contest that he was driving a motor vehicle while under the influence on that date. The state argues that the jury could infer from the evidence that the defendant's license was revoked on the relevant date. We agree with the state's position.
As noted previously, we must view all the facts in the light most favorable to sustaining the conviction. Exhibit 1, a record of defendant's moving violations as of January 5, 1988, shows a revocation as of June 26, 1985. There is no indication on the document that the license had been reissued. Page 2 of Exhibit 1, a form signed by defendant, states, in relevant part, that:
In accordance with Section 28-445A6, Arizona Revised Statutes, my right to drive in Arizona is revoked for a minimum period of 1 year. From 6-26-85 to 6-26-86.
The third page of Exhibit 1 is an application, dated July 27, 1986, by defendant, requesting an investigation to determine his eligibility to regain his license. Lastly, when stopped the defendant produced an MVD identification-only card, not a driver's license.
Obviously, the license revocation did not automatically terminate as of June 26, 1986. The issue then is how the state may prove that the revocation remained in effect until the date of the offense. It is a principle of evidence law that the existence of a particular fact before or after the act in question may be shown to indicate the existence of that same condition at the time of the act. E.g., Day v. Frazier, 51 Ariz. 474, 78 P.2d 140 (1938); State v. Miranda, 3 Ari
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