                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

            MARCO KEON RANDLES, Defendant/Appellant.

                         No. 1 CA-CR 13-0307
                          FILED 08-21-2014


          Appeal from the Superior Court in Maricopa County
                       No. CR2011-149985-001
              The Honorable Edward W. Bassett, Judge

 CONVICTION AFFIRMED; SENTENCE AFFIRMED AS MODIFIED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By David Simpson
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant



                              OPINION

Judge Andrew W. Gould delivered the opinion of the Court, in which
Presiding Judge John C. Gemmill and Judge Donn Kessler joined.
                           STATE v RANDLES
                           Opinion of the Court

G O U L D, Judge:

¶1            Defendant Marco Keon Randles appeals his conviction and
sentence for first degree premeditated murder. Randles raises two issues
on appeal. First, Randles contends that Arizona Revised Statutes (“A.R.S.”)
section 13-751, which permits a juvenile to be sentenced to life in prison
without the possibility of release on parole prior to serving 25 years, is
unconstitutional. Second, Randles claims the trial court abused its
discretion by precluding his expert from testifying about the alleged effects
of alcohol consumed by the victim. For the reasons set forth below, we
affirm Randles’ conviction and sentence as modified.

                FACTS1 AND PROCEDURAL HISTORY

¶2           In September 2011, Randles, who was seventeen-years old at
the time, murdered the victim by hitting him repeatedly in the head with a
brick.    The state subsequently charged Randles with first degree
premeditated murder.

¶3            The jury found Randles guilty of first degree murder. The
trial court sentenced Randles to life in prison without the possibility of
parole until he served a minimum term of 25 years pursuant to A.R.S. § 13-
751. Randles timely appealed.

                              DISCUSSION

I.    Unconstitutional Sentence

¶4           We review claims regarding the constitutionality of a criminal
sentencing statute de novo. State v. Bomar, 199 Ariz. 472, 475, ¶ 5, 19 P.3d
613, 616 (App. 2001); see State v. Stummer, 219 Ariz. 137, 141, ¶ 7, 194 P.3d
1043, 1047 (2008) (constitutionality of statutes reviewed de novo); State v.
Hansen, 215 Ariz. 287, 289, ¶ 6, 160 P.3d 166, 168 (2007) (same).

¶5             In Miller v. Alabama, 132 S. Ct. 2455, 2469 (2012), the United
States Supreme Court held that the Eighth Amendment bars sentencing
juveniles to a mandatory term of life imprisonment without the possibility
of parole. See U.S. Const. amend. VIII; Ariz. Const. art. 2, § 15. Randles, a
juvenile, was sentenced to life in prison without the possibility of parole

1  We view the facts in the light most favorable to sustaining the jury’s
verdict and resolve all reasonable inferences against defendant. State v.
Vandever, 211 Ariz. 206, 207 n.2, 119 P.3d 473, 474 n.2 (App. 2005).



                                     2
                            STATE v RANDLES
                            Opinion of the Court

until he served 25 years. A.R.S. § 13-751(A) (2011). Although Randles is
eligible for release on parole after serving 25 years, at the time of his
sentencing, Arizona’s sentencing statutes had abolished parole and,
therefore, did not provide a mechanism for imposing parole. See A.R.S. §
41-1604.09(I) (2011) (stating that parole is only available “to persons who
commit[ed] felony offenses before January 1, 1994”). Thus, based on Miller,
Randles argues that his sentence is unconstitutional.

¶6            We note that at the time of Randles’ sentencing, he was
eligible for release by “commutation” of his sentence by the Board of
Executive Clemency.        See A.R.S. § 31-402 (listing procedures for
commutation). However, the United States Supreme Court held in Solem v.
Helm, 463 U.S. 277, 282, 300-01 (1983) that a statutory scheme which only
provides for release by commutation does not provide a meaningful
opportunity for release. Thus, in Graham v. Florida, 560 U.S. 48, 57, 79 (2010),
the Court stated that Florida’s statutory scheme, which had abolished
parole for life sentences and only provided release based on executive
clemency, did not provide a meaningful opportunity for a juvenile to obtain
release from a life sentence.

¶7             On April 22, 2014, after Randles was sentenced, the
Governor signed H.B. 2593 into law. H.B. 2593, 51st Leg., 2nd Reg. Sess.
(Ariz. 2014). That legislation adds A.R.S. § 13-716, which provides in
relevant part:

       Notwithstanding any other law, a person who is sentenced to life
       imprisonment with the possibility of release after serving a
       minimum number of calendar years for an offense that was
       committed before the person attained eighteen years of age is
       eligible for parole on completion of service of the minimum
       sentence, regardless of whether the offense was committed on or
       after January 1, 1994. (Emphasis added).

In addition, H.B. 2593 amends A.R.S. § 41-1604.09(I), stating that parole
applies to “[a] person who is sentenced to life imprisonment and who is
eligible for parole pursuant to section 13-716.” A.R.S. § 41-1604.09(I)(2).

¶8             If statutory “language is clear and unambiguous, we must
give effect to that language and need not employ other rules of statutory
construction.” State v. Riggs, 189 Ariz. 327, 333, 942 P.2d 1159, 1165 (1997.)
In construing the subject statutes, we give every word and phrase its “usual
and commonly understood meaning unless the legislature clearly intended
a different meaning.” Bilke v. State, 206 Ariz. 462, 464-65, ¶ 11, 80 P.3d 269,



                                       3
                             STATE v RANDLES
                             Opinion of the Court

271-72 (2003) (quoting State v. Korzep, 165 Ariz. 490, 493, 799 P.2d 831, 834
(1990)).

¶9            Here, the language in A.R.S. § 13-716 and A.R.S. § 41-
1604.09(I)(2) satisfies the requirements of the Eighth Amendment by
expressly providing that juvenile offenders sentenced to life imprisonment
shall be eligible for parole upon completion of their minimum sentence
“regardless of whether the offense was committed on or after January 1,
1994.” A.R.S. § 13-716; see A.R.S. § 41-1604.09(I)(2). This language is in
agreement with the legislative history in passing H.B. 2593. See House
Summary, H.B. 2593, 51st Leg., 2nd Reg. Sess. (Ariz. 2014) (“HB 2593 . . . states
that a person sentenced to life in prison for an offense committed before 18
years of age is eligible for parole upon completion of the minimum
sentence.”).

¶10            This change in the law is applicable to all such sentences, and
accordingly, applies retroactively to Randles’ sentence in this case.2 See, e.g.,
State v. Ross, 180 Ariz. 598, 602, 886 P.2d 1354, 1358 (1994) (holding that
defendant’s challenge to execution by lethal gas as cruel and unusual
punishment under the Eighth Amendment was rendered moot by statutory
change permitting option of execution by lethal injection). Pursuant to
A.R.S. § 13-4037, we therefore modify Randles’ sentence in accordance with
the recently enacted legislation. Accordingly, Randles’ constitutional claim
is moot.

II.    Preclusion of Expert Opinion on Effects of Alcohol

¶11           At trial, Randles maintained he acted in self-defense. Randles
based this defense in part on the victim’s autopsy report. According to the
report, the victim’s blood alcohol concentration (“BAC”) was 0.13; in
addition, the report showed the presence of cocaine metabolites in the
victim’s system. Based on this evidence, Randles argued that the victim’s
cocaine and alcohol consumption made him violent and aggressive, thereby
justifying Randles’ use of lethal force in self-defense.

¶12           Prior to trial, the State filed a motion in limine to prevent
Randles’ expert witness, Mark Stoltman, a forensic toxicologist, from
testifying about the effects of cocaine and alcohol on the victim. Stoltman’s


2       The Governor signed H.B. 2593 on April 22, 2014, and the Second
Regular Session for the Fifty-first Legislature ended April 24, 2014; as a
result, the effective date for the new law is July 24, 2014. Ariz. Const. art.
IV, pt. 1, § 1(3).


                                       4
                              STATE v RANDLES
                              Opinion of the Court

proffered testimony included his opinion that consumption of alcohol and
cocaine can, as a general matter, make people aggressive, paranoid and
violent. In response to the State’s motion, Randles argued that Stoltman’s
testimony supported his assertion that the victim was the aggressor, and
therefore was essential to his claim of self-defense.

¶13             The court held a pretrial hearing at which Stoltman testified.
After the hearing, the court ruled that Stoltman could testify about the
effects of cocaine, including the “crash phase” and “withdrawal
symptoms,” such as “hyper somnolence, irritability, psychosis, and
aggression.” However, the court precluded Stoltman from testifying about
the effects of alcohol. The court based its decision on State v. Plew, 155 Ariz.
44, 745 P.2d 102 (1987), which held that testimony as to the effects of alcohol
was not a proper subject for expert testimony, because the subject was
“generally thought to be a matter of common knowledge.” Id. at 47, 745
P.2d at 105.

¶14            On the first day of trial, defense counsel asked the court to
reconsider its decision and also provided the court with a chart concerning
the stages of alcohol intoxication prepared by Dr. Kurt M. Dubowski, Ph.D.,
of the University of Oklahoma, Department of Medicine. The court
affirmed its prior ruling, and consequently Stoltman testified only as to the
potential effects of cocaine.

¶15          On appeal, Randles argues that the trial court’s ruling
precluding Stoltman’s testimony as to the effects of alcohol was reversible
error. We disagree.

¶16             We review a trial court’s ruling on the admissibility of
evidence for an abuse of discretion. State v. Aguilar, 209 Ariz. 40, 49, ¶ 29,
97 P.3d 865, 874 (2004). One of the primary concerns in the admission of
expert testimony is “whether the subject of inquiry is one of such common
knowledge that people of ordinary education could reach a conclusion as
intelligently as the expert witness or whether, on the other hand, the matter
is sufficiently beyond common experience that the opinion of an expert
would assist the trier of fact.” State v. Dixon, 153 Ariz. 151, 155, 735 P.2d
761, 765 (1987); see also, Ariz. R. Evid. 702(a) (expert testimony is admissible
if expert’s “scientific, technical, or other specialized knowledge will help
the trier of fact . . . understand the evidence or . . . determine a fact in issue”).

¶17          We conclude the trial court did not abuse its discretion in
excluding Stoltman’s testimony as to the effects of alcohol. Outside of the
driving while intoxicated context, our supreme court has consistently



                                         5
                             STATE v RANDLES
                             Opinion of the Court

explained that expert testimony regarding the effects of alcohol intoxication
is generally inadmissible because the subject is one that is within the
common knowledge and experience of most jurors. Plew, 155 Ariz. at 47,
745 P.2d at 105 (citation omitted) (stating that the effect of alcohol
intoxication is a subject of common knowledge and not a proper subject for
expert testimony); see also State v. Salazar, 173 Ariz. 399, 407, 844 P.2d 566,
574 (1992) (holding that the general effects of alcohol on the human body
and a person’s ability to reason are within the common knowledge and
experience of a jury; as a result, no expert testimony is necessary to assist
the trier of fact); State v. Rivera, 152 Ariz. 507, 514-15, 733 P.2d 1090, 1097-98
(1987) (holding that trial court properly excluded expert testimony in a
sexual assault case; court precluded expert testimony that alcohol
consumption by the victim may have reduced victim’s sexual inhibitions
and increased his sexual aggressiveness); State v. Means, 115 Ariz. 502, 504,
566 P.2d 303, 305 (1977) (doctor’s testimony that alcohol affects human
behavior “sometime[s] very adversely” is a matter of common experience
and knowledge and a jury could intelligently determine issue based on its
own ordinary judgment and practical experience).

¶18           Moreover, despite the trial court’s ruling, Randles suffered no
prejudice. The jury heard a considerable amount of testimony about the
victim’s consumption of alcohol and cocaine. The victim’s aunt testified
that both the victim and Randles had consumed alcohol while at the party.
The jury learned from the State’s forensic pathologist that the victim had a
BAC of 0.13 at the time of death and that he had also ingested cocaine at
some time prior to that. On cross-examination, the pathologist also noted
that from the alcohol level in the victim’s blood and urine, it appeared that
the victim had probably been “higher” and was more likely “going down”
to the 0.13 BAC and “could have been drunker” leading up to the crime. In
addition, based on Stoltman’s expert testimony regarding the effects of
cocaine, the jury also had evidence that someone coming down after
cocaine use could experience “nervousness, agitation, irritability, paranoia,
[and] even delusions.”

¶19            Based on this evidence, Randles was able to support his claim
of self-defense by arguing that the victim’s ingestion of both cocaine and
alcohol had made the victim the aggressor. This evidence, in combination
with the common knowledge that alcohol can cause belligerence and
aggressiveness, allowed the jury to fully evaluate Randles’ self-defense
claim. Under these circumstances, we cannot say that the trial court abused
its discretion in precluding the expert testimony on the effects of alcohol.




                                        6
                           STATE v RANDLES
                           Opinion of the Court

III.   DNA Testing Fee

¶20           The trial court ordered Randles to submit to DNA testing and
to “pay the applicable fee for the cost of that testing in accordance with
A.R.S. § 13-610.” This court recently held that A.R.S. § 13-610 does not
require a convicted defendant to pay for the costs of his DNA testing. State
v. Reyes, 232 Ariz. 468, 472, ¶¶ 11-13, 307 P.3d 35, 39 (App. 2013). We
therefore vacate the order requiring Randles to pay for the cost of DNA
testing.

                             CONCLUSION

¶21           For the foregoing reasons, we affirm Randles’ conviction. We
also affirm Randles’ sentence as modified.




                                   :gsh




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