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State v. Morris10/7/2003
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
Appellant Bill Bernal Morris was convicted by a jury of aggravated driving under the influence of an intoxicant (DUI) while his license was suspended, aggravated driving with an alcohol concentration of.10 or higher while his license was suspended, aggravated DUI with two or more prior convictions within sixty months, and aggravated driving with an alcohol concentration of.10 or higher with two prior convictions within sixty months. The trial court found that Morris had one historical prior felony conviction and that he had been on probation when he committed these offenses. The court sentenced Morris to concurrent, presumptive prison terms of 4.5 years. Morris contends on appeal the trial court erred by (1) denying his motion to dismiss the charges, (2) finding that he had a prior conviction by taking judicial notice of the court file in a Pima County Superior Court case, and (3) stating that Morris was required to serve the full sentence. We affirm.
Before trial, Morris moved to dismiss the charges on the ground that the police had unlawfully stopped him. The trial court denied the motion after a hearing. We review for an abuse of discretion a trial court's denial of a motion to dismiss charges based on an alleged Fourth Amendment violation. State v. Stuart, 168 Ariz. 83, 811 P.2d 335 (App. 1990). We defer to the trial court's factual findings but review de novo mixed questions of law and fact, as well as the trial court's ultimate conclusion. See State v. Rogers, 186 Ariz. 508, 924 P.2d 1027 (1996); State v. Wyman, 197 Ariz. 10, 3 P.3d 392 (App. 2000).
We view the facts in the light most favorable to upholding the court's ruling, State v. Sheko, 146 Ariz. 140, 704 P.2d 270 (App. 1985), and consider only the evidence presented at the suppression hearing. State v. Spears, 184 Ariz. 277, 908 P.2d 1062 (1996). While Tucson Police Officer Matthews was travelling with his vehicle's emergency lights activated, he saw a van jump a raised curb, cross some pavement, and come to rest in the desert perpendicular to the roadway. Faced with this "unusual" reaction to his vehicle's approach, Matthews made a U-turn and stopped behind the van. As he approached the van on foot, he observed the van begin to move. Matthews repeatedly directed the van's driver to stop, which he finally did.
Morris contends the mere fact that he drove over a curb into a desert area did not provide Matthews a valid reason to stop his vehicle. We do not agree. In order for an investigative stop to be lawful, the officer initiating the stop must be able to point to specific and articulable facts that, together with the inferences that rationally arise out of those facts, reasonably warrant intrusion by police upon a person's rights under the Fourth Amendment. Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868, 20 L. Ed. 2d 889 (1968); Pharo v. Tucson City Court, 167 Ariz. 571, 810 P.2d 569 (App. 1990). Morris's unusual and, indeed, suspicious reaction to the officer's approaching his vehicle provided the officer a reasonable suspicion to stop the van. On this record, the trial court did not abuse its discretion by denying the motion to dismiss the charges.
At the time of sentencing, Morris was still serving a sentence on a prior felony conviction in Pima County Superior Court No. CR-62636. In finding beyond a reasonable doubt that Morris had been convicted of the offense in CR-62636, the trial court took judicial notice of the conviction and sentencing minute entry in the court file of that case. Relying on State v. Hauss, 140 Ariz. 230, 681 P.2d 382 (1984), Morris contends the only way to prove a pr
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