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State v. Finch8/21/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
AFFIRMED
Appellant Michael Finch was convicted of aggravated driving under the influence with a suspended or revoked license and aggravated driving with a blood alcohol concentration (BAC) of 0.08 or more with a suspended or revoked license and sentenced to prison. He raises numerous claims on appeal. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the convictions. State v. Riley, 196 Ariz. 40, , 992 P.2d 1135, (App. 1999). Early one morning in March 2002, an officer from the Tucson Police Department (TPD) stopped the vehicle Finch was driving after Finch failed to stop at a stop sign. When the officer approached the vehicle, he observed an upright beer can on the floorboard of the passenger seat. The officer asked Finch about the can, and Finch stated: " hat's my beer." The officer asked Finch whether he had been drinking, and Finch replied: "Yes, sir, just what's missing out of the can." The officer noticed that Finch's speech was slurred and his eyes were watery and bloodshot and detected a strong odor of alcohol on Finch's breath. The officer asked Finch to get out of the vehicle, and Finch stumbled against the vehicle when doing so. In response to the officer's request for identification or a driver's license, Finch produced an identification card and stated that his license was suspended. Finch then agreed to undergo field sobriety tests.
Finch performed poorly on the tests. On the horizontal gaze nystagmus test, he exhibited a number of cues suggesting impairment. On the "alphabet-number test," Finch made four errors. Although Finch claimed that he had a knee injury and would be unable to perform the "walk-and-turn" test, he did agree to perform the "one-leg stand" and exhibited signs of impairment. After an officer read Finch his Miranda warnings, Finch agreed to answer questions and stated that he had consumed "two shots and two drinks." Finch agreed to BAC testing, and two tests, taken about forty-five minutes after Finch was stopped, yielded results of.100 and.117.
The state charged Finch with one count each of aggravated driving under the influence while license is suspended or revoked under A.R.S. § 28-1381(A)(1) and A.R.S. § 28-1383(A)(1), and aggravated driving with an alcohol concentration of 0.08 or more while license is suspended or revoked under § 28-1381(A)(2) and § 28-1383(A)(1). A jury found Finch guilty on both counts. After the trial court determined that Finch had two prior felony convictions, it imposed enhanced, presumptive, concurrent prison terms totaling ten years.
INDICTMENT
Finch argues the trial court erred in denying his motion to dismiss one of the counts in the indictment, claiming the indictment with both counts violated his right against double jeopardy because it was multiplicitous. According to Finch, the prohibition against double jeopardy prevents the state from charging multiple counts under § 28-1383(A)(1) based on separate violations of § 28-1381(A).
The Double Jeopardy Clause prohibits multiple punishments for the same offense. State v. Powers, 200 Ariz. 123, , 23 P.3d 668, (App. 2001), approved by 200 Ariz. 363, 26 P.3d 1134 (2001). A multiplicitous indictment, charging a single offense in multiple counts, "raises the potential for multiple punishments... implicates double jeopardy." Powers, 200 Ariz. 123, , 23 P.3d 668, . "In determining multiplicity[,] the court must consider whether each count of the indictment requires p
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