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State v. Brown6/22/1999
AFFIRMED
Defendant Gary Frederick Brown appeals from his conviction for driving under the influence of intoxicating liquor on a suspended license ("aggravated DUI") in violation of former Arizona Revised Statutes Annotated ("A.R.S.") section 28-697(A) (Supp. 1997) (current version at A.R.S. section 28-1383 (Supp. 1998)). Brown contends that the trial court both erred by not instructing the jury on the lesser-included offense of driving on a suspended license and abused its discretion by denying his motion for a mistrial based on improper contact by a witness with members of the jury. We reject these contentions and affirm.
Shortly after 1:00 a.m. on July 13, 1997, Officers Sharp and Berry of the Phoenix Police Department observed a pickup truck turn into a parking lot off Bethany Home Road. The truck squealed its tires , jerkily stopped and started, and ran over several low-standing planters before coming to a complete stop. When the officers approached the truck, they found Brown slumped over the wheel and smelling of alcohol. He declined to perform any field sobriety tests or take an intoxilyzer test. Brown possessed a driver's license that had expired in 1981.
After it was determined that Brown's driver's license had been suspended, he was charged with aggravated DUI. A jury found Brown guilty as charged. The trial court suspended imposition of sentence and placed Brown on probation for five years with the requirement that he serve four months in jail as a term of his probation.
Brown timely appealed. We have jurisdiction pursuant to A.R.S. sections 12-120.21(A)(1) (1992), 13-4031 (1989), and 13-4033 (Supp. 1998).
The first issue is whether the trial court properly declined to instruct the jury on driving on a suspended license as a lesser-included offense of aggravated DUI. The jury must be instructed on all lesser-included offenses supported by the evidence. See Ariz. R. Crim. P. 23.3; State v. Nieto, 186 Ariz. 449, 456, 924 P.2d 453, 460 (App. 1996).
The test for whether an offense is "lesser-included" is whether it is, by its very nature, always a constituent part of the greater offense, or whether the charging document describes the lesser offense even though it does not always make up a constituent part of the greater offense. Stated another way, "a court may inquire as to whether the greater offense, as described by a statute or as charged, can be committed without necessarily committing the lesser offense." State v. Chabolla-Hinojosa, 192 Ariz. 360, 363, 965 P.2d 94, 97 (App. 1998) (citation omitted) (quoting State v. Ennis, 142 Ariz. 311, 314, 689 P.2d 570, 573 (App. 1984)), review denied (Oct. 22, 1998); see also State v. Gooch, 139 Ariz. 365, 366-67, 678 P.2d 946, 947-48 (1984) (enunciating test for lesser-included offense).
The trial court correctly declined to instruct the jury on driving on a suspended license as a lesser-included offense. Driving on a suspended license is not an inherent constituent part of aggravated DUI. The elements for driving on a suspended license are: (1) driving a motor vehicle; (2) on a public highway in this state; (3) when the privilege to drive has been suspended. See A.R.S. § 28-473 (Supp. 1997) (current version at A.R.S. § 28-3473 (Supp. 1998)). Unlike this offense, aggravated DUI does not require proof of actual driving; it is sufficient for the State to prove that the defendant was in "actual physical control" of a vehicle. A.R.S. §§ 28-697(A), 28-692; see also State v. Love, 182 Ariz. 324, 326, 897 P.2d 626, 628 (1995) (stating factors to be considered include whether engine running, ignition turned on, and where key is located); State v. Vermuele, 160 A
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