                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                        SCOTT THOMAS HASLOCK,
                                Appellant.

                             No. 1 CA-CR 19-0476
                                FILED 8-27-2020


           Appeal from the Superior Court in Coconino County
                        No. S0300CR201500927
                 The Honorable Mark R. Moran, Judge

                        AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Michael Valenzuela
Counsel for Appellee

Lane Hupp & Crowley, PLC, Phoenix
By Jonathan Hupp
Counsel for Appellant
                            STATE v. HASLOCK
                            Decision of the Court



                      MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge D. Steven Williams joined.


W E I N Z W E I G, Judge:

¶1           Scott Haslock appeals his convictions and sentences for
aggravated assault, criminal damage, endangerment and driving under the
influence. We affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             Haslock sped his rental car down a two-lane highway at
night. His driving was erratic. He drifted over the double yellow line,
weaving in and out of oncoming traffic and narrowly missed at least one
driver who veered to avoid a collision. Haslock barreled forward until he
struck a Toyota Prius from behind—launching the Prius off the road, where
it rolled nearly 100 feet before falling down a 30-foot embankment. A
witness described seeing “brake lights come on, a bunch of dust, and two
vehicles exit the roadway.”

¶3             A father and son were in the Prius, along with their dog. First
responders used a “jaws of life” to rescue the father from the car. He was
airlifted to the hospital where he remained in intensive care for three days.
Son was also injured. The dog survived. The Prius was “[t]otaled.”

¶4            Haslock pulled over and slumped down inside his car. The
paramedics and a police officer reported that Haslock smelled of alcohol
and appeared confused. The officer added that Haslock had “red watery
eyes” and a “very dazed expression.” Haslock denied he had been drinking
alcohol, but then admitted he had “a couple drinks.” Field sobriety tests
reflected that Haslock was impaired and he was arrested for suspicion of
driving under the influence. An inventory search revealed marijuana in the
trunk of his vehicle.

¶5            At the station, Haslock admitted he drank alcohol an hour
before the crash and breath tests showed his alcohol concentration was still
.095 after two or three hours. Haslock voluntarily submitted to a blood
draw. A state forensic scientist later tested the blood, using a retrograde



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                            STATE v. HASLOCK
                            Decision of the Court

analysis to determine that Haslock had THC in his system, and testified
Haslock had a BAC of at least .12 at the time of the crash.

¶6            The State charged Haslock with two counts of aggravated
assault (Class 3 dangerous felonies), one count of criminal damage (a Class
4 non-dangerous felony), two counts of endangerment (Class 6 dangerous
felonies) and two DUI counts (Class 1 misdemeanors) for (1) driving while
under the influence of any intoxicating liquor or drug “if the person is
impaired to the slightest degree” under A.R.S. § 28-1381(A)(1), and (2)
driving “[w]hile there is any drug defined in § 13-3401 or its metabolite in
the person’s body” under A.R.S. § 28-1381(A)(3). The superior court later
dismissed the (A)(3) charge on the State’s motion. Given that dismissal, the
court also granted the State’s motion in limine precluding Haslock from
introducing his Arizona Medical Marijuana Act (AMMA) Card.

¶7             Four days before trial, Haslock filed his fourth motion to
continue because he hired new counsel. The superior court denied the
motion but authorized the new lawyer to assist Haslock’s appointed
counsel at trial. See Knapp v. Hardy, 111 Ariz. 107, 111-12 (1974) (an indigent
defendant may hire private counsel to assist the court-appointed public
defender).

¶8            After a seven-day trial, the jury found Haslock guilty on all
charges. For the felony convictions, the court imposed concurrent, less-
than-presumptive prison terms of six years for the aggravated assault
convictions, two years for the endangerment convictions, and 1.5-years for
the criminal damage conviction. He was sentenced to time served for the
DUI conviction. Haslock timely appealed. We have jurisdiction under
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1), 13-4031 and -4033(A)(1).

                               DISCUSSION

   I.     Motion to Continue

¶9            Haslock first argues the superior court violated his right to
counsel of his choosing by denying his motion to continue. The State
counters that Haslock could show no extraordinary circumstances to
warrant a fifth continuance. “We review a trial court’s denial of a motion
to continue for an abuse of discretion,” State v. Forde, 233 Ariz. 543, 555, ¶
18 (2014), but we review de novo Sixth Amendment claims involving a
defendant’s right to counsel, State v. Rasul, 216 Ariz. 491, 493, ¶ 4 (App.
2007). We find no error.



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                            STATE v. HASLOCK
                            Decision of the Court

¶10           The Sixth Amendment protects the right to choose “non-
publicly funded private counsel,” Robinson v. Hotham, 211 Ariz. 165, 169, ¶
16 (App. 2005), but that right “is not absolute [and] is subject to the
requirements of sound judicial administration,” State v. Hein, 138 Ariz. 360,
369 (1983). This right “guarantee[s] an effective advocate for each criminal
defendant,” but does not “ensure that a defendant will inexorably be
represented by the lawyer whom he prefers.” Wheat v. United States, 486
U.S. 153, 159 (1988). We consider six factors to determine whether the
denial of a continuance violates this right: (1) whether the court previously
granted one or more continuances; (2) whether the defendant was
represented by other competent counsel who was prepared for trial; (3) the
potential inconvenience to litigants, counsel, witnesses and the court; (4) the
complexity of the case; (5) the length of the delay; and (6) whether the
requested delay was legitimate or “merely dilatory.” Hein, 138 Ariz. at 369.

¶11          The superior court applied the appropriate factors to deny
Haslock’s motion to continue and the record supports its conclusion.
Haslock’s case had been pending for more than three years. He retained
new private counsel only five days before trial. Haslock had requested and
secured earlier continuances, including twice for Haslock to retain new
counsel. Haslock never argued or showed that his appointed counsel was
unable to represent him, appointed counsel assured the court he was ready
to proceed to trial, and the new attorney was allowed to help at trial.
Haslock’s new attorney participated at each stage, including jury selection,
opening statements, witness exams, objections and closing arguments.

¶12           A continuance would have created administrative and
scheduling issues, including for victims who traveled from outside the
county to attend trial and testify. United States v. Gonzalez-Lopez, 548 U.S.
140, 152 (2006) (trial court has “wide latitude in balancing the right to
counsel of choice against the needs of fairness, and against the demands of
its calendar”) (citations omitted).

¶13           Haslock argued his new counsel needed more time for
pretrial discovery, pointing to the superior court’s Willits instruction.1 But
the Willits instruction provides no support for a continuance, only that
some evidence may not have been preserved on the night of the accident.
The superior court also found that Haslock’s appointed counsel addressed

1       A Willits instruction tells jurors that they may infer from the State’s
loss or destruction of material evidence that the evidence would have been
unfavorable to the State. State v. Willits, 96 Ariz. 184, 191 (1964); State v.
Fulminante, 193 Ariz. 485, 503, ¶ 62 (1999).


                                      4
                           STATE v. HASLOCK
                           Decision of the Court

many of these concerns. We affirm the superior court’s denial of his motion
to continue trial.

   II.    Exclusion of Evidence

¶14            At trial, Haslock unsuccessfully sought to introduce his
AMMA Card to contest the impairment element of the misdemeanor DUI
offense, claiming it shows THC tolerance and will dissuade jurors from
thinking his use or possession of marijuana was unlawful. We review the
court’s evidentiary ruling for an abuse of discretion. See State v. Amaya-
Ruiz, 166 Ariz. 152, 167 (1990) (“The trial court has considerable discretion
in determining the relevance and admissibility of evidence, and we will not
disturb its ruling absent a clear abuse of that discretion.”).

¶15             The court did not abuse its discretion. First, Haslock was
charged with and convicted of driving while impaired by alcohol, not
marijuana. The State presented overwhelming evidence of Haslock’s
alcohol impairment, including breath and BAC tests, witness accounts of
erratic driving, his admissions, first responders who smelled alcohol and
his failed field sobriety tests.

¶16           At most, the AMMA Card might have been relevant to the
earlier-dismissed charge under A.R.S. § 28-1381(A)(3). See Ariz. R. Evid.
401 (to be relevant, evidence must have “any tendency to make a fact [of
consequence] more or less probable.”). But even then, an AMMA Card
might justify marijuana use or possession but not impaired driving. See
A.R.S. § 28-1381(B); Dobson v. McClennen, 238 Ariz. 389, 391, ¶¶ 10-11 (2015).
Haslock fares no better under Rule 404(b), which precludes “evidence of
other crimes, wrongs, or acts,” because the State never argued Haslock’s
marijuana use was illegal. Nor does he show prejudice. See State v. Ayala,
178 Ariz. 385, 387 (App. 1994) (To require reversal, the prejudice to the
defendant from the trial court’s error “must be sufficient to create a
reasonable doubt about whether the verdict might have been different.”).

¶17          Beyond that, Haslock was not precluded from proving his
THC tolerance and his attorney often tried, even emphasizing in closing
argument “that somebody who uses a drug like marijuana . . . habitually
develops a tolerance [that] lower[s] the effects it has on them.”

   III.   Sentencing

¶18          Haslock argues the trial court erred by sentencing him as a
dangerous offender for the aggravated assault and endangerment
convictions. He asserts the jury did not, as required, make a dangerousness


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                            STATE v. HASLOCK
                            Decision of the Court

finding on the aggravated assaults. On the endangerment convictions,
Haslock contends that, although the jury did make dangerousness findings,
it improperly did so at the same time it returned the guilty verdicts.

¶19           Because Haslock approved the verdict forms and did not
object to being sentenced under A.R.S. § 13-704, we review for fundamental
error. See State v. Alvarez, 213 Ariz. 467, 469, ¶ 7 (App. 2006). To prevail on
fundamental error review, a defendant must establish error that (1) “went
to the foundation of the case,” (2) “took from the defendant a right essential
to his defense,” or (3) “was so egregious that he could not possibly have
received a fair trial.” State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). As
applicable here, the defendant also must show resulting prejudice. Id.

¶20            A “dangerous” offense is one “involving the . . . use . . . of a
deadly weapon or dangerous instrument[.]” A.R.S. § 13-105(13). A finding
that an offense is dangerous subjects a defendant to the enhanced
sentencing provision of A.R.S. § 13-704. A dangerousness finding is
generally made by the jury during the trial’s aggravation phase. If a
charged offense is inherently dangerous, however, the jury need not make
a separate post-guilty verdict finding of dangerousness under A.R.S. § 13-
704 because the guilty verdict is enough. Ariz. R. Crim. P. 19.1(c)(2)(B); State
v. Larin, 233 Ariz. 202, 211-13, ¶¶ 34-36, 38 (App. 2013).

¶21           Haslock does not argue the error went to the foundation of
his case, denied an essential right to his defense, or was so egregious that
his trial was unfair. Nor does he contend the alleged error caused him
prejudice. See Escalante, 245 Ariz. at 142, ¶ 21. “The defendant bears the
burden of persuasion at each step.” Id.

¶22           The aggravated assault counts were inherently dangerous,
and imposition of enhanced sentences did not require the jury to separately
find the offenses were dangerous. Haslock was convicted of using his
vehicle as a deadly weapon or dangerous instrument, erratically racing
down a two-lane highway at night, weaving across the road and swerving
into oncoming traffic. See A.R.S. §§ 13-1203(A)(1), -1204(A)(2). The
evidence supporting the dangerousness element of the aggravated assault
convictions also supports a dangerousness finding for the endangerment
convictions. See Larin, 233 Ariz. at 211-12, ¶ 35 (quoting State v. Patterson,
220 Ariz. 270, 277, ¶¶ 29-31 (2012)). The court also provided a limiting
instruction that the jury was not to decide dangerousness without first
determining guilt. We presume the jury listened. State v. Newell, 212 Ariz.
389, 403, ¶ 68 (2006).




                                       6
                           STATE v. HASLOCK
                           Decision of the Court

¶23            As a final matter, the State requests we modify the sentencing
minute entry because it does not conform to the trial court’s verbal
imposition of sentence. In his reply brief, Haslock does not object to the
State’s request. Based on our review of the sentencing transcript and the
corresponding minute entry, we conclude the latter contains clerical errors.
The sentencing minute entry dated July 30, 2019 is therefore modified as
follows: Haslock’s sentence for Count 2 (aggravated assault) and Count 3
(aggravated assault) are each for a mitigated term of “six (6) years” to run
concurrent with each other and concurrent with the other sentences
imposed for the felony convictions. See State v. Ovante, 231 Ariz. 180, 188, ¶
38 (2013) (“This Court can order the minute entry corrected if the record
clearly identifies the intended sentence.”).

                               CONCLUSION

¶24           We affirm Haslock’s convictions and sentences as modified.




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




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