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State v. Bedell3/22/2004
MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court
After a jury trial, Daniel Bruce Bedell was convicted of two counts of aggravated driving under the influence of an intoxicant (DUI). O n appeal, he claims that the trial court erred in denying his motion to dismiss, made on the ground the state failed to preserve evidence or, alternatively, that the court erred in denying his request for a jury instruction on lost evidence. Bedell also contends the court improperly treated his 1995 arson conviction as a historical prior felony conviction in enhancing his sentences and urges us to reject an opinion by Division One of this court on which the trial court relied. Finally, Bedell argues that the trial court denied him his constitutional right to a jury trial by conducting a bench trial on the state's allegations that he had a prior conviction. We affirm.
Facts and Procedural History
We view the facts and reasonable inferences therefrom in the light most favorable to sustaining the verdicts. State v. Herrera, 203 Ariz. 131, 51 P.3d 353 (App. 2002). On April 24, 2002, Pima County Deputy Sheriff Kenneth Gardner was parked at an intersection monitoring traffic. Gardner saw Bedell enter the intersection on a red light and make a right-hand turn without stopping.
Gardner stopped Bedell's vehicle and asked for his driver's license, registration, and proof of insurance. Bedell said his license had been revoked and handed Gardner an Arizona identification card. Gardner smelled alcohol emanating from Bedell and initiated a DUI investigation. When G ardner was unable to complete the horizontal gaze nystagmus test because Bedell apparently failed to follow instructions, Gardner conducted four field sobriety tests (FSTs), all of which Gardner said Bedell had failed.
Gardner arrested Bedell and read him portions of a form on Arizona's informed consent law. Bedell consented to submit to a blood test, the results of which showed he had a.089 alcohol concentration (AC). The jury found Bedell guilty of aggravated DUI with a suspended or revoked license and aggravated driving with an AC of.08 or more on a suspended or revoked license. After the trial court found that Bedell had two prior felony convictions, it sentenced Bedell to mitigated, concurrent prison terms of six years.
Failure to preserve evidence
Bedell's first argument rests on the state's alleged failure to preserve on videotape his performance on the FSTs. A t trial, Gardner testified that the vehicle he had been driving was equipped with audio and video recording equipment, which sheriff's department policy required to be operating at all times the car was in use. He further testified that he had instructed Bedell to move away from his vehicle to a more level area that happened to be outside the range of the video camera to perform the FSTs. Gardner said he had "forgot the camera was on and operating" and had not repositioned it to record Bedell's performance on the FSTs.
a. Motion to dismiss
Bedell moved to dismiss the charges against him with prejudice, arguing that the state had had a duty to preserve his performance on the FSTs on videotape because it was material to his defense. The trial court denied his motion. We review a trial court's denial of a motion to dismiss for an abuse of discretion. State v. Hansen, 156 Ariz. 291, 751 P.2d 951 (1988).
As a general principle, the state's conduct that results in the loss of evidence falls into one of three categories: 1) suppressing or destroying evidence, 2) failing to preserve evidence, or 3) failing to collect evidence in the first place. State v
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