                      NOTICE: NOT FOR OFFICIAL PUBLICATION.
  UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                  AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                     IN THE
              ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                        STATE OF ARIZONA, Appellee,

                                         v.

                   KRIS RAYMOND MCCLAIN, Appellant.

                              No. 1 CA-CR 16-0242
                               FILED 3-28-2017


            Appeal from the Superior Court in Yavapai County
                         No. P1300CR201300130
                  The Honorable Tina R. Ainley, Judge

                        AFFIRMED AS CORRECTED


                                    COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Craig Williams, Attorney at Law P.L.L.C., Prescott Valley
By Craig Williams
Counsel for Appellant


                        MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.
                             STATE v. MCCLAIN
                             Decision of the Court

W I N T H R O P, Judge:

¶1             Kris Raymond McClain appeals his convictions and sentences
for manslaughter, criminal damage, four counts of aggravated assault, and
six counts of aggravated driving under the influence (“DUI”), which
includes three counts of aggravated driving with drugs or their metabolites
in his body. For the following reasons, we affirm; however, we correct the
trial court’s March 22, 2016 sentencing minute entry to reflect that Count 5
is a dangerous offense.

               FACTS AND PROCEDURAL BACKGROUND

¶2           The evidence at trial, viewed in the light most favorable to
sustaining the convictions,1 demonstrated that on January 22, 2013,
McClain drove his Jeep at a high rate of speed and failed to brake as he
approached cars stopped at a traffic light. McClain’s Jeep slammed into one
of the stopped vehicles, killing one of the occupants, and injuring others in
that vehicle and another. After the incident, McClain told a law
enforcement officer that he had used medical marijuana the day before and
taken methadone that morning. McClain also told a detective that he
suffered from self-diagnosed narcolepsy and had fallen asleep at the wheel.

¶3           A blood test revealed that McClain had in him approximately
eight times the amount of THC believed to trigger impairing effects;
methadone, a narcotic analgesic; and lorazepam, a central nervous system
depressant that causes drowsiness. At the time of the collision, McClain
had three prior convictions for aggravated DUI—two committed in 2005,
and one in 2006—and was required to have an ignition interlock device on
any vehicle he drove.

¶4           The jury convicted McClain of manslaughter, as a lesser-
included offense of the charged crime of second-degree murder; four
counts of aggravated assault, all dangerous offenses2; six counts of


1        See State v. Boozer, 221 Ariz. 601, 601, ¶ 2, 212 P.3d 939, 939 (App.
2009).

2      The jury’s verdict form, as well as the February 19, 2016 transcript of
the jury’s verdict, makes clear the jury found that all the aggravated assault
counts were dangerous offenses. The trial court’s March 22, 2016
sentencing minute entry indicates, however, that Count 5 is a non-
dangerous offense. Pursuant to State v. Vandever, 211 Ariz. 206, 210, ¶ 16,



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                            STATE v. MCCLAIN
                            Decision of the Court

aggravated DUI, including three counts involving aggravated driving with
drugs or their metabolites in his body; and one count of criminal damage
of $2,000 or more but less than $10,000. The jury also found several
aggravating factors. The court sentenced McClain to aggravated terms
totaling 32 years in prison, flat time, to be served after completion of the
sentences totaling 3.5 years for the aggravated DUI convictions for which
he was on probation.

¶5            McClain filed a timely notice of appeal. We have jurisdiction
pursuant to Arizona Revised Statutes sections 12-120.21(A)(1) (2016), 13-
4031 (2010), and 13-4033(A) (2010).

                                 ANALYSIS

       I.     Rule 404(b) Evidence

¶6              McClain argues the court abused its discretion in admitting at
trial the facts giving rise to a 2005 DUI conviction, to show under Arizona
Rule of Evidence (“Rule”) 404(b) that he understood the risk of causing a
collision while driving under the influence. McClain argues that prejudice
from the fact that this DUI occurred in the parking lot of a middle school
and involved his children as witnesses substantially outweighed any
probative value it might have had.

¶7             Other-act evidence is admissible under Rule 404(b) if the State
has proved by clear and convincing evidence that the defendant committed
the other act, it is offered for a purpose other than to show propensity to
commit the charged act, its relevance is not substantially outweighed by the
potential for unfair prejudice under Rule 403, and the court provides a
limiting instruction if requested under Rule 105. See State v. Anthony, 218
Ariz. 439, 444, ¶ 33, 189 P.3d 366, 371 (2008). “Evidence is unfairly
prejudicial if it has an undue tendency to suggest decision on an improper
basis, commonly, though not necessarily, an emotional one.” State v. Mills,
196 Ariz. 269, 275, ¶ 28, 995 P.2d 705, 711 (App. 1999) (citations and internal
punctuation omitted).

¶8            Before trial, the State moved pursuant to Rule 404(b) to admit
evidence of three convictions for aggravated DUI—two committed in 2005,
both of which involved children, and one committed in 2006—to show the
mental state of criminal recklessness. Blood drawn from McClain after the
2005 DUI that the court ultimately found admissible showed the presence

119 P.3d 473, 477 (App. 2005), we correct the sentencing minute entry to
reflect that Count 5 is a dangerous offense.


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                            STATE v. MCCLAIN
                            Decision of the Court

of quantities of a metabolite of THC, several types of central nervous system
depressants, and hydrocodone. Blood drawn from McClain after the
instant incident showed the presence of THC and its metabolite; lorazepam,
a central nervous system depressant; and methadone.

¶9             McClain argued that the prior aggravated DUIs were not
sufficiently similar to the incident at issue to demonstrate that he was made
aware of the risks he posed to others while driving after taking methadone
and medical marijuana.3 He also argued that the evidence would unfairly
prejudice him because it would create a significant risk that the jury would
convict him because “he did it before.”

¶10           After reviewing the pleadings presented by the parties, the
court found that the 2005 aggravated DUI at the middle school parking lot
was relevant and admissible under Rule 404(b) “to show that [McClain]
understood the risk of driving under the influence, the risk of causing a
collision.” The court further found that the unfair prejudice did not
outweigh its probative value. We review for an abuse of discretion a trial
court’s decision to admit evidence under Rule 404(b). See State v. Forde, 233
Ariz. 543, 558-59, ¶ 42, 315 P.3d 1200, 1215-16 (2014).

¶11            The court did not abuse its discretion. The circumstances here
are similar to those presented in State v. Woody, 173 Ariz. 561, 845 P.2d 487
(App. 1992). In Woody, this court found no abuse of discretion in the trial
court’s admission of one of the defendant’s convictions arising from his
nine prior DUI arrests in the trial of charges of DUI and second-degree
murder, to show the defendant’s reckless indifference to human life, the
required mens rea for the second-degree murder charge. Id. at 562-63, 845
P.2d at 488-89. The court noted that “[t]he prior act need not be factually
identical to the crime at issue,” and found that “the facts of [the defendant’s]
prior conviction were sufficiently similar for the jurors reasonably to
conclude that as a result of it, [the defendant] was made aware of the risks
he posed to others in driving while under the influence.” Id. at 563, 845 P.2d
at 489. Such was the case in this instance. In the 2005 aggravated DUI,
McClain was observed speeding too fast for the conditions and striking a
parked car.

¶12          In this case, McClain was observed speeding and failing to
brake as he approached other vehicles stopped at the red light. In both
cases, he was found to have a metabolite of THC and a central nervous


3     McLain argues the hospital was responsible for the central nervous
system depressant (lorazepam) found in his blood. See infra ¶¶ 18-20.


                                       4
                            STATE v. MCCLAIN
                            Decision of the Court

system depressant in his system. Any unfair prejudice from the fact that
the prior act involved a middle school and McClain’s children was minimal
under the circumstances of this case, and was far outweighed by the
probative value on the limited issue for which the court admitted this prior
act.4 We therefore decline to reverse on this basis.

       II.    Voluntariness of Statements

¶13           McClain next argues that the court abused its discretion in
finding that his recorded statements at the scene and at the hospital were
admissible, because he was in custody and in extreme pain. McClain argues
that he was in custody from the time the detective was asked to stay with
him at the scene of the accident because he “was gravely injured, really
unable to move,” and “[t]wo hours in the hospital with no pain relief being
questioned by law enforcement is coercion.”

¶14           The State has the burden of proving by a preponderance of
the evidence that a statement was voluntary. State v. Amaya-Ruiz, 166 Ariz.
152, 164, 800 P.2d 1260, 1272 (1990). Following a three-day evidentiary
hearing, the court found that McClain was not in custody when he made
statements in response to questioning by officers while at the scene
awaiting medical attention and in the ambulance on the way to the hospital.
The court reasoned that the officers “were still in the process of determining
what happened,” and “[t]hose initial questions were designed to obtain the
most basic information and to determine the status of [McClain’s] injuries.”
The court further found that during the initial time at the hospital, the
investigation was still ongoing, and McClain “was not in custody.” The
court found, however, that the questions an officer posed after McClain was
formally placed under arrest and before the detective advised McClain of
his rights pursuant to Miranda5 were not admissible at trial, as conceded by
the State. As to statements McClain made after he was advised pursuant to
Miranda, the court found that McClain “understood his rights and agreed
to answer questions.” Finally, the court found that McClain’s statements
“were responsive to the questions and were not the result of any promises,




4      The trial court instructed the jury as to the limited basis for which
evidence of the prior act could be used. We presume the jury followed the
court’s instructions. See State v. Rosas-Hernandez, 202 Ariz. 212, 219, ¶ 25, 42
P.3d 1177, 1184 (App. 2002).

5      Miranda v. Arizona, 384 U.S. 436 (1966).


                                       5
                            STATE v. MCCLAIN
                            Decision of the Court

coercion or threats.” The court subsequently denied McClain’s motion for
reconsideration.

¶15           We review for an abuse of discretion the trial court’s ruling
admitting McClain’s statements, based on the evidence presented at the
voluntariness hearing, which is viewed in the light most favorable to
upholding the court’s ruling. See State v. Ellison, 213 Ariz. 116, 126, ¶ 25, 140
P.3d 899, 909 (2006).

¶16            The court did not abuse its discretion. The procedural
safeguards of Miranda apply “only where there has been such a restriction
on a person’s freedom as to render him ‘in custody.’” Oregon v. Mathiason,
429 U.S. 492, 495 (1977). An individual is considered “in custody” for
purposes of Miranda when, in light of all the circumstances, there is “a
formal arrest or restraint on freedom of movement of the degree associated
with a formal arrest.” Stansbury v. California, 511 U.S. 318, 322 (1994)
(citations and internal punctuation omitted). In determining whether a
suspect was “in custody,” we consider the following factors: (1) the site of
the interrogation; (2) whether the investigation has focused on the accused,
if disclosed to the suspect; (3) whether the objective indicia of arrest are
present; and (4) the length and form of the interrogation. See State v. Perea,
142 Ariz. 352, 354-55, 690 P.2d 71, 73-74 (1984) (citation omitted). The
inquiry is focused not only on whether the suspect’s freedom of action was
significantly curtailed, but also on “whether the environment in which he
was questioned presented inherently coercive pressures similar to a station
house interrogation.” State v. Maciel, 240 Ariz. 46, 49-50, ¶¶ 11-13, 375 P.3d
938, 941-42 (2016). The evidence at the voluntariness hearing supports the
court’s ruling that McClain was not in custody at the scene, in the
ambulance, or at the hospital before he was placed under arrest. Instead,
the officers simply stood by McClain’s side while he awaited medical
treatment; no objective indicia of arrest, such as handcuffs, were present;
the officers had not disclosed to McClain that he was the focus of their
investigation; and the officers asked only brief questions designed to
ascertain what had happened, and what drugs McClain had taken and
when, given his gray and ashy pallor.

¶17          Nor were these statements involuntary because McClain was
in extreme pain. In determining whether a confession is voluntary, we
consider whether, under the totality of the circumstances, the defendant’s
will was overcome. State v. Boggs, 218 Ariz. 325, 335, ¶ 44, 185 P.3d 111, 121
(2008). We will not find a statement involuntary unless there exists “both
coercive police behavior and a causal relation between the coercive
behavior and the defendant’s overborne will.” Id. at 336, ¶ 44, 185 P.3d at


                                       6
                            STATE v. MCCLAIN
                            Decision of the Court

122 (citation omitted). “When evaluating coercion, the defendant’s physical
and mental states are relevant to determine susceptibility to coercion, but
alone are not enough to render a statement involuntary.” State v. Smith, 193
Ariz. 452, 457, ¶ 14, 974 P.2d 431, 436 (1999) (citation omitted); cf. Mincey v.
Arizona, 437 U.S. 385, 396-402 (1978) (holding that a defendant’s statements
were involuntary because evidence showed the defendant’s will was
overborne by the police detective’s unceasing interrogation “of a seriously
and painfully wounded man on the edge of consciousness,” who at times
“gave unresponsive and uninformative answers,” appeared confused and
unable to think clearly, and repeatedly asked for a lawyer). The detective
who stayed by McClain at the scene, accompanied him in the ambulance,
and questioned him at the hospital after McClain waived his Miranda rights
testified that he never made any promise, used any force, or threatened
McClain in any way. Here, the evidence fails to support either that the
police questioning was coercive or that McClain’s will was overborne.
McClain was lucid, his answers were responsive to the questions asked, and
several times he invoked his rights to refer some of the questions to his
attorney. The court did not abuse its discretion in concluding that the
statements were voluntary.

       III.   Sufficiency of the Evidence

¶18           McClain next argues that insufficient evidence supported the
convictions because there was circumstantial evidence that the lorazepam
(Ativan) found in his blood was administered by the hospital for pain, and
not present at the time of the accident.

¶19            We review de novo the sufficiency of the evidence to support
a conviction. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191
(2011). We view the facts in the light most favorable to upholding the jury’s
verdict, and resolve all conflicts in the evidence against the appellant. State
v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). Evidence is
sufficient to support a conviction “when there is such proof that reasonable
persons could accept as adequate and sufficient to support a conclusion of
defendant’s guilt beyond a reasonable doubt.” State v. Forde, 233 Ariz. at
567, ¶ 97, 315 P.3d at 1224 (citation omitted). Evidence “is not insubstantial
simply because reasonable persons might have drawn a different
conclusion from the evidence.” State v. Martinez, 226 Ariz. 221, 224, ¶ 15,
245 P.3d 906, 909 (App. 2011) (citations omitted).

¶20          Police drew McClain’s blood at 5:35 p.m. A nurse testified she
administered 1 milligram of Ativan to McClain at 5:42 p.m., and this was
the only Ativan administered to him by the hospital. The Ativan she


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                          STATE v. MCCLAIN
                          Decision of the Court

administered came from a two-milligram bottle, and she put the one
milligram she did not use in a Sharps container, per hospital policy. The
nurse testified she was certain she followed the procedure, although the
disposal was not recorded properly in the records. The evidence was more
than sufficient to show that lorazepam was present in McClain’s blood at
the time of the incident, before his blood was drawn by police.

                             CONCLUSION

¶21          Finding no error, we affirm McClain’s convictions and
sentences. We also correct the trial court’s March 22, 2016 sentencing
minute entry to reflect that Count 5 is a dangerous offense.




                        AMY M. WOOD • Clerk of the Court
                        FILED: AA




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