                               IN THE
               ARIZONA COURT OF APPEALS
                            DIVISION TWO


                        THE STATE OF ARIZONA,
                               Appellee,

                                  v.

                        GUILLERMO E. COONEY,
                              Appellant.

                        No. 2 CA-CR 2012-0061
                        Filed November 8, 2013


          Appeal from the Superior Court in Pima County
                       No. CR20103945001
               The Honorable Paul E. Tang, Judge

                             AFFIRMED


                             COUNSEL

Thomas C. Horne, Arizona Attorney General
by Joseph T. Maziarz, Section Chief Counsel, Phoenix
and Alan L. Amann, Assistant Attorney General, Tucson

Counsel for Appellee

Isabel G. Garcia, Pima County Legal Defender
by Scott A. Martin, Assistant Legal Defender, Tucson

Counsel for Appellant
                         STATE v. COONEY
                         Opinion of the Court


                              OPINION

Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Espinosa concurred.


E C K E R S T R O M, Judge:


¶1           After a jury trial, appellant Guillermo Cooney was
convicted of four counts of aggravated driving under the influence
of an intoxicant (DUI). Cooney now appeals, claiming evidence of
time spent incarcerated was improperly admitted, the use of his two
prior DUI convictions as elements in his current DUI case violated
his right to protection from double jeopardy, and the trial court
erred in giving the Portillo instruction on reasonable doubt. For the
following reasons, we affirm Cooney’s convictions and sentences.

                Factual and Procedural Background

¶2           In November 2009, Cooney was stopped by an officer of
the Marana Police Department for speeding. During the traffic stop,
the officer noticed “the odor of intoxicants coming from the vehicle.”
When the officer ran a records check, he discovered that Cooney’s
license was suspended. The officer then conducted a horizontal
gaze nystagmus test on Cooney and observed six out of six cues that
may indicate intoxication. Cooney was arrested and taken to a
police substation for a blood draw, which showed a blood alcohol
concentration (BAC) of .101.

¶3          As noted above, Cooney was charged with and
convicted of four counts of aggravated DUI, specifically: DUI with a
suspended license, A.R.S. §§ 28-1381(A)(1), 28-1383(A)(1),1 driving
with a BAC at or above .08 with a suspended license, §§ 28-
1381(A)(2), 28-1383(A)(1), DUI with two prior DUI convictions

      1We cite the current versions of these statutes, as they have not
changed in material part since Cooney committed his offenses.

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                          STATE v. COONEY
                          Opinion of the Court

within eighty-four months, §§ 28-1381(A)(1), 28-1383(A)(2), and
driving with a BAC at or above .08 with two prior DUI convictions
within eighty-four months, §§ 28-1381(A)(2), 28-1383(A)(2). Cooney
was sentenced to four enhanced, concurrent, presumptive prison
terms of ten years. This appeal followed.

                              Jurisdiction

¶4           The state initially asserts that we lack jurisdiction to
hear this matter because the defendant’s notice of appeal was
untimely. Cooney’s notice of appeal was filed on March 6, 2012.
Although this was more than twenty days past oral pronouncement
of sentence, which occurred on February 13, 2012, it was within
twenty days of the filing of the minute entry, which occurred on
February 15, 2012. Rule 31.3, Ariz. R. Crim. P., provides that the
notice of appeal must be filed “within 20 days after the entry of
judgment and sentence.” This court has recently held that “the
timeliness of a criminal defendant’s appeal may be measured from
the date when the minute entry containing the judgment and
sentence was filed.” State v. Whitman, 232 Ariz. 60, ¶ 23, 301 P.3d
226, 232 (App. 2013). We find Cooney’s notice of appeal was timely
filed, and we therefore have jurisdiction pursuant to A.R.S. §§ 12-
120.21 and 13-4033.

                 Evidence of Previous Incarceration

¶5            Cooney argues that admission over his objection of
evidence regarding the time he spent incarcerated violated Rule 403,
Ariz. R. Evid., because it was unduly prejudicial. He further asserts
that if § 28-1383 compels admission of this evidence, it constitutes an
impermissible usurpation of the Arizona Supreme Court’s
rulemaking authority by the legislature. We find his argument
unpersuasive and hold that evidence of the time he spent
incarcerated did not violate Rule 403.

¶6           “The admission of evidence is within the trial court’s
discretion and will not be disturbed absent an abuse of discretion.”
State v. Davolt, 207 Ariz. 191, ¶ 60, 84 P.3d 456, 473 (2004). In State v.
Geschwind, 136 Ariz. 360, 362, 666 P.2d 460, 462 (1983), our supreme

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                         STATE v. COONEY
                         Opinion of the Court

court held that, based on Rule 19.1(b), Ariz. R. Crim. P., a defendant
was not entitled to a bifurcated trial on the issue of whether he had a
prior DUI conviction because the prior conviction was an element of
the charged offense that had to be presented to the jury for a
determination of guilt. In State ex rel. Romley v. Galati, 195 Ariz. 9,
¶ 16, 985 P.2d 494, 497 (1999), our supreme court confirmed that this
holding was not affected by the United States Supreme Court’s
ruling in Old Chief v. United States, 519 U.S. 172, 174-75 (1997),
because in Old Chief, “the element at issue was the existence of any
prior felony conviction; . . . [t]o convict [defendants] of aggravated
DUI, however, the State needed to establish they . . . sustained two
prior DUI convictions within [the statutory time period].” Galati,
195 Ariz. 9, ¶ 15, 985 P.2d at 497.

¶7           Cooney attempts to distinguish this situation from
Geschwind and Galati by the fact that “Rule 19.1(b) does not contain
an express exception for when ‘time spent incarcerated’ is part of an
element of the charged offense.” We do not find this to be a
meaningful distinction. The element of aggravated DUI under § 28-
1383(A)(2) is not simply having two prior DUI convictions; it is
having two prior DUI convictions for acts committed within a
period of eighty-four months of the present offense. When
calculating the eighty-four-month period, time spent incarcerated is
excluded from the determination. § 28-1383(B). The state is
therefore required to prove the fact of the conviction and that it fell
within the time limit, excluding any time the defendant spent
incarcerated. See State v. Moran, 232 Ariz. 528, ¶ 15, 307 P.3d 95, 100
(App. 2013) (recognizing “[p]rior qualifying convictions within the
statutory timeframe” as elements of offense). If the court were
required to hold a bifurcated trial on the issue of time spent
incarcerated, this would essentially be a separate trial on the issue of
whether the two prior convictions fell within the statutory time
period. Because this is an element of the offense, such a bifurcated
trial would be a violation of Rule 19.1(b) and our supreme court’s
holdings in Geschwind and Galati.

¶8          Although we are mindful of the highly prejudicial
nature of evidence of a defendant’s past incarceration, Rule 403
requires that a trial court balance the probative value of proffered

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                         STATE v. COONEY
                         Opinion of the Court

evidence against its prejudicial nature, and the rule compels
exclusion only if the danger of unfair prejudice substantially
outweighs the probative value. Here, where the state was required
to prove that Cooney’s two prior DUI convictions occurred within
the statutory time limit, and as part of that proof, needed to show
the time Cooney spent incarcerated, the evidence of Cooney’s
incarceration was essential to prove an element of the crime. See
§ 28-1383(B). Therefore, the probative value of the evidence was
extremely high. Noting the danger of prejudice to Cooney, the trial
court ordered the record of incarceration to be redacted to omit the
underlying offense and other irrelevant information. The court also
instructed the jury that it was not to consider the evidence for any
purpose other than “deciding whether the State has proved to you
beyond a reasonable doubt that there were two prior DUI
convictions within the 84 months, excluding time incarcerated,
preceding this offense.” We presume jurors follow a court’s
instructions. State v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847
(2006). Given the high probative value of the evidence, and the
court’s efforts to limit the prejudice to Cooney, we conclude the
court did not abuse its discretion in not precluding the evidence
under Rule 403.2

¶9           Cooney claims that allowing this evidence because it is
required to prove an element of a crime when it would otherwise be

      2Cooney     also asserts this evidence was inadmissible under
Rule 404(b), which prevents admission of “other crimes, wrongs, or
acts . . . to prove the character of a person in order to show action in
conformity therewith.” Cooney did not raise this argument to the
trial court and has therefore forfeited review absent fundamental,
prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115
P.3d 601, 607 (2005). Because Cooney does not argue on appeal that
this constituted fundamental error, and we find no error that can be
characterized as such, we do not consider this issue. See State v.
Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008)
(noting fundamental error argument waived if not asserted); State v.
Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007)
(“Although we do not search the record for fundamental error, we
will not ignore it when we find it.”).

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                         STATE v. COONEY
                         Opinion of the Court

forbidden by the rules of evidence constitutes an impermissible
usurpation of the Arizona Supreme Court’s rulemaking power by
the legislature. Cooney did not raise this novel argument in the trial
court,3 and he has therefore forfeited review for all but fundamental,
prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115
P.3d 601, 607 (2005). Because Cooney does not argue on appeal that
this constituted fundamental error, and we find no error that can be
characterized as such, we do not consider this issue. See State v.
Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008)
(noting fundamental error argument waived if not asserted); State v.
Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007)
(“Although we do not search the record for fundamental error, we
will not ignore it when we find it.”).

                          Double Jeopardy

¶10         Cooney next asserts that by using his two prior DUI
convictions as elements of aggravated DUI, the state violated his
right to protection from double jeopardy under the United States
and Arizona Constitutions because he has already been punished for
the prior DUIs. We conclude that no double jeopardy violation
occurred.

¶11          We review de novo a question of double jeopardy. State
v. Siddle, 202 Ariz. 512, ¶ 7, 47 P.3d 1150, 1153 (App. 2002).

      3Cooney   claims his objection based on the prejudicial effect of
the time spent incarcerated was sufficient to preserve this argument,
despite the fact he never articulated a separation-of-powers claim.
In support of this argument, he notes the trial court “was wrestling
with the conflict between the legislature’s inclusion of ‘time spent
incarcerated’ in the criminal statute and our supreme court’s general
preclusion of such evidence.” Upon review, the record illustrates
that the court was concerned about the balance of probative value
and prejudice under Rule 403, but it does not suggest the court
considered any separation-of-power issue. Because “an objection on
one ground does not preserve the issue on another ground,” we
review only for fundamental error. State v. Lopez, 217 Ariz. 433, ¶ 4,
175 P.3d 682, 683-84 (App. 2008).

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                          STATE v. COONEY
                          Opinion of the Court

Although Cooney did not raise this objection in the trial court, and
our review is therefore limited to fundamental, prejudicial error, see
Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607, a violation of
double jeopardy, if found, constitutes fundamental error, State v.
Price, 218 Ariz. 311, ¶ 4, 183 P.3d 1279, 1281 (App. 2008).

¶12          Cooney essentially contends his two predicate DUI
convictions are lesser-included offenses of his current aggravated
DUI offense under § 28-1383(A)(2). Cooney argues that because
prior convictions are included as elements of the offense, rather than
aggravating factors for sentencing, the statute effectively punishes
him twice for his past offenses. “To constitute a lesser-included
offense, the offense must be composed solely of some but not all of
the elements of the greater crime so that it is impossible to have
committed the crime charged without having committed the lesser
one.” State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983).

¶13          But Cooney’s argument overlooks the temporal aspect
of a lesser-included offense. “‘An offense is lesser included when
the greater offense cannot be committed without necessarily
committing the lesser offense.’” State v. Cruz, 127 Ariz. 33, 36, 617 P.2d
1149, 1152 (1980), quoting State v. Dugan, 125 Ariz. 194, 195, 608 P.2d
771, 772 (1980) (emphasis added); accord State v. Wall, 212 Ariz. 1,
¶ 14, 126 P.3d 148, 150 (2006). A lesser-included offense, in other
words, is one that is necessarily committed when a defendant
commits a greater offense. A person does not commit past crimes—
much less necessarily commit them—with present or future actions.
And this means that a prior adjudicated offense cannot be a lesser-
included offense of a current charge.

¶14         In the DUI context, specifically, the requirement of prior
convictions does not make them lesser-included offenses. The actus
reus, or physical component, of the crime of aggravated DUI under
§ 28-1383(A)(2) is committing a basic DUI offense under § 28-1381.4

      4Although    the aggravated DUI statute also recognizes
violations of A.R.S. §§ 28-1382 or 28-1383 as possible predicate
offenses, a person cannot violate these statutes without also
violating § 28-1381.

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                           STATE v. COONEY
                           Opinion of the Court

A defendant’s status at the time of that act provides the additional
elements necessary to sustain a conviction for the greater offense
under § 28-1383(A)(2). But the only lesser-included offense is the
basic DUI that is necessarily committed at the time of the present
offense. Both the lesser and greater offenses share the same act of
driving. The prior DUI convictions, therefore, do not constitute
lesser-included offenses of aggravated DUI.

¶15           The United States Supreme Court has long held that a
person is not subjected to double jeopardy when an offense “is
considered to be an aggravated offense because [it is] a repetitive
one.” Gryger v. Burke, 334 U.S. 728, 732 (1948); accord Parke v. Raley,
506 U.S. 20, 27 (1992); see also State v. Bly, 127 Ariz. 370, 372-73, 621
P.2d 279, 281-82 (1980) (use of weapon as element of crime and
sentencing factor did not violate double jeopardy); State v.
Stefanovich, 232 Ariz. 154, ¶ 6, 302 P.3d 679, 680-81 (App. 2013).
Cooney attempts to distinguish his case from this long line of well-
established precedent by the fact that his two prior convictions were
used as elements of the offense rather than sentencing factors. But
the effect of § 28-1383(A)(2) is to punish a defendant more severely
for a recent crime based on his having committed previous crimes,
which is precisely what courts have long held is constitutionally
permissible. See, e.g., State v. Vardiman, 552 S.E.2d 697, 701 (N.C. Ct.
App. 2001). Cooney does not explain how the inclusion of prior
convictions as an element, rather than a sentencing factor, changes
that result, and he cites no case law from any jurisdiction that has
found a double jeopardy violation in this circumstance.

¶16           Nor does the Arizona Supreme Court’s opinion in State
v. Campa, 168 Ariz. 407, 814 P.2d 748 (1991), mandate a different
outcome.      In Campa, the court determined the use of prior
convictions to establish felony DUI under the former A.R.S. § 28-
692.01(F)5 did not implicate double punishment concerns. Campa,
168 Ariz. at 411, 814 P.2d at 752. The court reasoned that because the
defendant’s two prior felony convictions for driving offenses were
not elements of the offense, “no double punishment considerations
[were] implicated.” Id. Cooney argues, inversely, that if prior

      51987   Ariz. Sess. Laws, ch. 275, §§ 2, 7, and ch. 262, §§ 3, 5.

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                          STATE v. COONEY
                          Opinion of the Court

offenses are elements of the offense, then double punishment
becomes an issue. We reject this argument for two reasons.

¶17          First, Campa’s discussion of double jeopardy with
respect to the elements of aggravated DUI is dicta, because under
the former statute discussed in that case, the prior convictions were
not elements of a substantive offense, but rather facts that “increased
the penalty” and classification of the DUI offense. Id.; see also State v.
Kelly, 210 Ariz. 460, ¶ 5, 112 P.3d 682, 684 (App. 2005) (“‘Dictum is
not binding precedent because, inter alia, it is without the force of
adjudication and the court may not have been fully advised on the
question.’”), quoting Creach v. Angulo, 186 Ariz. 548, 552, 925 P.2d
689, 693 (App. 1996). Second, Campa’s discussion of double jeopardy
relied on State v. Orduno, 159 Ariz. 564, 769 P.2d 1010 (1989), and
Orduno has been limited so that it only prohibits an enhanced
sentence based on the use of a motor vehicle as a “dangerous
instrument” in a DUI case. State v. Lara, 171 Ariz. 282, 284-85, 830
P.2d 803, 805-06 (1992). Accordingly, Campa does not mandate a
conclusion that a violation of double jeopardy occurred here.

                          Portillo Instruction

¶18           Cooney lastly argues the trial court erred in basing its
reasonable doubt instruction to the jury on language from State v.
Portillo, 182 Ariz. 592, 898 P.2d 970 (1995). Over Cooney’s objection,
the trial court issued an instruction on reasonable doubt consistent
with the one approved by our supreme court in Portillo. On appeal,
Cooney contends this instruction “violates a defendant’s rights to
due process of law” because it “more closely define[s] a ‘clear and
convincing’ standard, which is lower than the constitutional
standard in criminal cases.” Although Cooney articulates a non-
trivial argument, our supreme court has considered and rejected
such challenges to the Portillo instruction, repeatedly affirming its
preference that the instruction be given. See, e.g., State v. Garza, 216
Ariz. 56, ¶ 45, 163 P.3d 1006, 1016-17 (2007); State v. Lamar, 205 Ariz.
431, ¶¶ 48-49, 72 P.3d 831, 840-41 (2003). Arizona’s courts are bound
by the decisions of our supreme court and we have no “authority to
modify or disregard [its] rulings.” State v. Smyers, 207 Ariz. 314, n.4,


                                    9
                        STATE v. COONEY
                        Opinion of the Court

86 P.3d 370, 374 n.4 (2004). Accordingly, the court did not abuse its
discretion in giving a Portillo instruction.

                            Disposition

¶19         For the foregoing reasons, Cooney’s convictions and
sentences are affirmed.




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