                                IN THE
            ARIZONA COURT OF APPEALS
                             DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                        KENNETH TARR, Appellant.

                           No. 1 CA-CR 12-0791
                            FILED 08-05-2014


          Appeal from the Superior Court in Maricopa County
                     No. CR2012-105930-001 DT
           The Honorable Jerry Bernstein, Judge Pro Tempore

                              AFFIRMED


                               COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Stephen Whelihan
Counsel for Appellant



                               OPINION

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


G E M M I L L, Judge:
                             STATE v. TARR
                            Opinion of the Court

¶1             Kenneth Tarr appeals his convictions and sentences on four
counts of aggravated driving or actual physical control of a vehicle while
under the influence of alcohol (“DUI”).1 He argues that the trial court erred
in refusing his requested jury instructions specifically defining “actual
physical control” of a vehicle as including its use as a stationary shelter.
Because we conclude that the court’s instructions adequately covered the
issue, we affirm.

                              BACKGROUND

¶2             The evidence presented at trial, which we view in the light
most favorable to upholding the verdicts, reveals the following. State v.
Carrasco, 201 Ariz. 220, 221, ¶ 1, 33 P.3d 791, 792 (App. 2001). On January
27, 2012, two Phoenix Police Officers were investigating a suspicious
vehicle on a residential street. While investigating the suspicious vehicle,
the officers spotted another car parked in the street several houses down.
The officers watched the other car move from the front of one house to the
front of another house next door. They approached the car to find Tarr in
the driver’s seat with the engine running. When Tarr reached to turn off
the engine, the officers noticed that his eyes were watery and bloodshot and
he smelled like alcohol. After Tarr failed a Horizontal Gaze Nystagmus test
and refused to complete any field sobriety tests, the officers arrested him.
A blood test revealed that Tarr’s blood alcohol concentration (“BAC”) was
.224 percent.

¶3              At trial, Tarr testified that he had a fight with his girlfriend
earlier in the evening and she went to bed. According to Tarr, when he and
his girlfriend fought, they would generally separate to cool down. After she
went to bed, he looked for a place to sleep but the extra beds and couches
had been taken by visiting children having a sleepover with his children.



1 Count one alleged under A.R.S. §§ 28-1381(A)(1) and -1383(A)(1) that Tarr
drove or was in actual physical control of a vehicle while under the
influence and with his license suspended; count two alleged under §§ 28-
1381(A)(2) and -1383(A)(1) that he drove or was in actual physical control
of a vehicle while he had a BAC of .08 or more within two hours of driving
and his license was suspended; count three alleged under §§ 28-1381(A)(1)
and -1383(A)(2) that he drove or was in actual physical control while under
the influence and after conviction for two prior DUI offenses; and count
four alleged under §§ 28-1381(A)(2) and -1383 (A)(2) that Tarr drove or was
in actual physical control of a vehicle while he had a BAC of .08 or more
and he had been convicted of two prior DUI offenses.


                                       2
                             STATE v. TARR
                            Opinion of the Court

Tarr said he went to sleep in the car and had started the engine so he could
have heat. Following a jury trial, Tarr was convicted on all four counts.

¶4             Under Arizona Revised Statutes (“A.R.S.”) section 28-1381,
Tarr could be convicted of DUI for either driving or being in actual physical
control of a vehicle while under the influence of alcohol or with the requisite
BAC. There was evidence that Tarr drove his car as the officers were
watching in addition to evidence that Tarr was in “actual physical control”
of the car. Because both driving and actual physical control were presented
to the jury, we do not know upon which basis the jury convicted. We must
therefore consider Tarr’s arguments that the jury instruction defining
“actual physical control” was deficient and constituted reversible error.

¶5            Our statutes do not define what constitutes actual physical
control. Tarr requested the following instruction on actual physical control
(“Modified Instruction”):

       In determining whether the defendant was in actual physical
       control of the vehicle, you should consider the totality of the
       circumstances shown by the evidence.

       1.  Whether the vehicle was running;
       2.  Whether the ignition was on;
       3.  Where the ignition key was located;
       4.  Where and in what position the driver was found in the
           vehicle;
       5. Whether the person was awake or asleep;
       6. Whether the vehicle’s headlights were on;
       7. Where the vehicle was stopped;
       8. Whether the driver had voluntarily pulled off the road;
       9. Time of day;
       10. Weather conditions;
       11. Whether the heater or air conditioner was on;
       12. Whether the windows were up or down;
       13. Any explanation of the circumstances shown by the
           evidence.

       This list is not meant to be all-inclusive. It is up to you to
       examine all the available evidence and weigh its credibility in
       determining whether the defendant was simply using the vehicle
       as a stationary shelter or actually posed a threat to the public by
       the exercise of present or imminent control over it while
       impaired.


                                       3
                             STATE v. TARR
                            Opinion of the Court

(Emphasis added). This Modified Instruction was similar to the instruction
recommended by the Arizona Supreme Court in State v. Zaragoza, 221 Ariz.
49, 54, ¶ 21, 209 P.3d 629, 634 (2009), but included additional language
regarding use of a vehicle as a “stationary shelter.”

¶6             Tarr also requested the following instruction (“Special
Instruction”):

       The law does not forbid an individual from using a vehicle as a
       stationary shelter when there is no actual threat posed to the
       public by the exercise of present or imminent control over it
       while impaired.

(Emphasis added.) The trial court refused to give either of Tarr’s requested
instructions, expressing (among other things) concern that the instructions
might be considered comments on the evidence, and instead gave an
instruction (“Given Instruction”) on actual physical control that was nearly
identical to the instruction recommended in Zaragoza, 221 Ariz. at 54, ¶ 21,
209 P.3d at 634. The Given Instruction did not include Tarr’s requested
language specifically authorizing using a vehicle as a “stationary shelter.”
The final sentence of the Given Instruction provided:

       It is up to you to determine all the available evidence in its
       totality and weigh its credibility[2] whether the defendant
       actually posed a threat to the public by the exercise of present
       or imminent control over it while impaired.

¶7            Tarr timely appeals and we have jurisdiction pursuant to
A.R.S. §§ 12-120.21(A) (1) and 13-4033(A) (1).

                                ANALYSIS

¶8            Tarr argues that his Modified Instruction and Special
Instruction accurately stated the law, were supported by the evidence, and
should have been given. He claims that the principle of law upon which
his defense relied – that a person could use a vehicle as a stationary shelter
– was not adequately covered by the Given Instruction. Although we agree
that Tarr’s instructions were correct statements of the law, we affirm
because the Given Instruction was adequate.


2 The words “in determining” from the Zaragoza instruction were omitted
here. No objection to this omission was asserted by either party.



                                      4
                              STATE v. TARR
                             Opinion of the Court

I.     Tarr’s requested instructions accurately stated the law

¶9            We review the trial court’s decision of whether to give an
instruction for abuse of discretion. State v. Martinez, 218 Ariz. 421, 432, ¶
49, 189 P.3d 348, 359 (2008). We review de novo whether the Given
Instruction correctly stated the law. See id. Jury instructions “need only be
‘substantially free from error.’” Zaragoza, 221 Ariz. at 53, ¶ 15, 209 P.3d at
633 (quoting State v. Cox, 217 Ariz. 353, 356, ¶ 15, 174 P.3d 265, 268 (2007)).

¶10           Tarr argues that an intoxicated person may use a vehicle as a
stationary shelter without exercising actual physical control. The Arizona
Supreme Court agrees. In State v. Love, 182 Ariz. 324, 326, 897 P.2d 626, 628
(1995), the supreme court stated that the issue of actual physical control
required the trier of fact to determine “whether the defendant was simply
using the vehicle as a stationary shelter, or actually posed a threat to the
public by the exercise of present or imminent control over the vehicle while
impaired.” The court also explained that “it is reasonable to allow a driver,
when he believes his driving is impaired, to pull completely off the
highway, turn the key off and sleep until he is sober, without fear of being
arrested for being in control.” Id. (quoting State v. Zavala, 136 Ariz. 356, 358-
59, 666 P.2d 456, 458-59 (1983). These statements plainly articulate that an
impaired person may use a vehicle as a stationary shelter without being
guilty of DUI. Although the supreme court in Zaragoza recommended an
“actual physical control” instruction that omitted the “shelter” language,
the court nonetheless cited Love favorably. Zaragoza, 221 Ariz. at 54, ¶ 21,
209 P.3d at 634. Under both Love and Zaragoza, the central inquiry is
whether the defendant “actually posed a threat to the public by the exercise
of present or imminent control over [the vehicle] while impaired.” Id.
(quoting Love, 182 Ariz. at 326-27, 897 P.2d at 628-29).

¶11           Contrary to the State’s argument, Zaragoza did not reject the
“shelter” language in Love. In Zaragoza, the court rejected proposed
language that the jury should determine the defendant’s purpose “in
exercising control of the vehicle.” 221 Ariz. at 54, ¶ 20, 209 P.3d at 634. This
rejected language would have enabled a jury to conclude that a defendant
exercised control over the vehicle and yet find him not guilty because his
purpose was not to place the vehicle in motion. Id. Such language would
be contrary to the statutory language that provided for guilt if the
defendant exercised actual physical control regardless of the driver’s
purpose of exercising such control. See Ariz. Rev. Stat. (A.R.S.) § 28-
1381(A). Love, however, distinguished the exercise of actual physical
control from using a vehicle as a shelter with the disjunctive “or.” Love, 182
Ariz. at 326-27, 897 P.2d at 628-29 (the trier of fact must determine “whether


                                       5
                             STATE v. TARR
                            Opinion of the Court

the defendant was simply using the vehicle as a stationary shelter, or
actually posed a threat to the public by the exercise of present or imminent
control over the vehicle while impaired”) (emphasis added). Under Love,
therefore, if a defendant is using a vehicle as a stationary shelter, he is not
in actual physical control for purposes of the DUI statutes. Love suggests
that use of a vehicle as a shelter is a distinct concept from being in actual
physical control within the meaning of the statutes. Determining whether
a person is using a vehicle as a shelter requires the jury to make an objective
determination based on the totality of the circumstances as to whether the
defendant actually exercised control over the vehicle within the meaning of
the DUI statutes. See Zaragoza, 221 Ariz. at 52, ¶ 11, 209 P.3d at 632; Love,
182 Ariz. at 326-27, 897 P.2d at 628-29. Because the “shelter” language in
Love was not rejected or called into question in Zaragoza, it remains the law
that an intoxicated person may use a vehicle as a stationary shelter and not
be considered to be exercising present or imminent control over the vehicle
for DUI purposes.3

¶12           The State is incorrect in arguing that the trial court was bound
to give the Zaragoza approved instruction and could not supplement it. The
State supports its assertion by citing State v. Parades-Solano, 223 Ariz. 284,
292, ¶ 23, 222 P.3d 900, 908 (App. 2009). But Parades-Solano dealt with the
reasonable doubt instruction specified in State v. Portillo, 182 Ariz. 592, 596,
898 P.2d 970, 974 (1995). In Portillo, the Arizona Supreme Court expressly
stated that “we require as a matter of state law that . . . Arizona trial courts
give the reasonable doubt instruction set forth in Part C of this opinion in
every future criminal case.” 182 Ariz. at 596, 898 P.2d at 974. The court in
Zaragoza, however, set forth an instruction that “should be used in future
actual physical control prosecutions.” Zaragoza, 221 Ariz. at 54, ¶ 21, 209
P.3d at 634 (emphasis added). The Portillo instruction, in contrast, is
absolutely required. Furthermore, the recommended instruction in
Zaragoza states that the list of factors is not exhaustive. Id. The jury must
look to the totality of the circumstances in determining whether the
defendant exercised actual physical control. Id. Thus, in an appropriate
circumstance, a trial court may supplement the instruction to aid the jury
as long as any additional language properly states the law. We conclude

3 We also note that the court in Love observed that “even where a defendant
is determined to have relinquished actual physical control, if it can be
shown that such person drove while intoxicated to reach the place where
he or she was found, the evidence will support a judgment of guilt.” 182
Ariz at 327-28, 897 P.2d at 629-30.




                                       6
                             STATE v. TARR
                            Opinion of the Court

that Tarr’s requested instructions were correct statements of the law
regarding actual physical control.4

¶13           We also conclude that Tarr’s requested instructions did not
constitute an improper comment on the evidence. In rejecting Tarr’s
proposed instructions, the trial court expressed concern that the instruction
might be an improper comment on the evidence. The Arizona Constitution
forbids judges from commenting on the evidence. See Ariz. Const. art. 6, ¶
27. To violate this section, the “court must express an opinion as to what
the evidence proves or interfere with the jury’s independent evaluation of
that evidence.” State v. Roque, 213 Ariz. 193, 213, ¶ 66, 141 P.3d 368, 388
(2006) (quoting State v. Rodriguez, 192 Ariz. 58, 63, ¶ 29, 961 P.2d 1006, 1011
(1998)) (internal quotation marks omitted). Neither of Tarr’s requested
instructions commented on the evidence. The instructions merely informed
the jury that it should evaluate the totality of the circumstances to
determine whether Tarr was using the vehicle as a stationary shelter or
exercising actual physical control. This was a correct statement of Arizona
law and would not have interfered with the jury’s independent evaluation
of whether the facts supported Tarr’s defense that he was simply using the
vehicle as a place to sleep.

II.    The trial court did not err in refusing Tarr’s requested instructions

¶14           Although Tarr was entitled to an instruction on any theory
reasonably supported by the evidence, State v. Rodriguez, 192 Ariz. 58, 61, ¶
16, 961 P.2d 1006, 1009 (1998), a trial court is not required to give a proposed


4 The fact that one of Tarr’s proposed instructions omitted language from
the Zaragoza approved instruction does not alter our conclusion. The
Modified Instruction requested by Tarr omitted language from the first
paragraph of the Zaragoza instruction that the jury should consider
“whether the defendant’s current or imminent control of the vehicle
presented a real danger to [himself] [herself] or others at the time alleged.”
Zaragoza, 221 Ariz. at 54, ¶21, 209 P.3d at 634. This omission is not fatal,
however, because the proposed instruction included similar language that
the jury should determine “whether the defendant . . . actually posed a
threat to the public by the exercise of present or imminent control.” Id.
Although the Modified Instruction did not repeat this concept as the
Zaragoza instruction does, it nonetheless correctly states the law. The
supreme court’s recommended instruction in Zaragoza is, however,
superior in this regard.




                                       7
                             STATE v. TARR
                            Opinion of the Court

instruction when its substance is adequately covered by other instructions.
Id. Jury instructions must be reviewed in their entirety when determining
whether they adequately state the law. Id. We evaluate jury instructions in
context, and we may take closing arguments into consideration in
determining whether jury instructions adequately state the law. State v.
Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989). We will not
reverse unless the instructions, taken as a whole, misled the jury. State v.
Kuhs, 223 Ariz. 376, 384, ¶ 37, 224 P.3d 192, 200 (2010).

¶15            As already noted, the Given Instruction was nearly identical
to the instruction endorsed by the Arizona Supreme Court in Zaragoza, 221
Ariz. at 54, ¶ 21, 209 P.3d at 634. The fact that the Given Instruction was
approved by the supreme court confirms that it is an adequate statement of
the law.

¶16           Contrary to Tarr’s argument, the jury was entitled to conclude
that he was in actual physical control because he could have driven off at
any moment. In rejecting a bright line test for actual physical control, the
supreme court noted in Love that the “drunk who turns off the key but
remains behind the wheel is just as able to take command of the car and
drive away, if so inclined, as the one who leaves the engine on.” Love, 182
Ariz. at 327, 897 P.2d at 629. The court rejected the suggestion that an
impaired motorist could avoid culpability simply by turning off the
ignition. Id. These statements clearly extend potential culpability to those
who can drive off at any moment. As stated in Zaragoza and Love, the
fundamental issue for the jury is whether the defendant posed a threat to
himself or to others through the exercise of present or imminent control.
Love, 182 Ariz. at 326-27, 897 P.2d at 628-29; Zaragoza, 221 Ariz. at 54, ¶ 21,
209 P.3d at 634. Here, the evidence was sufficient to permit the jury to
conclude that Tarr was in actual physical control of the vehicle because he
could have driven off at any moment.

¶17            The language of the Given Instruction adequately informed
the jury that Tarr could have used the vehicle as a shelter. First, the Given
Instruction implies that a person can be in a vehicle but not in actual
physical control. The jury was instructed to “consider the totality of the
circumstances” rather than simply whether Tarr was in the car. The jury
therefore could have concluded that Tarr was using the vehicle as a shelter
under the totality of the circumstances and did not pose a threat to the
public. Furthermore, the jury was instructed that the list of factors was not
all-inclusive and it should consider any explanation of the circumstances.
This language allows Tarr’s explanation that he was using the car as a
stationary shelter.


                                      8
                             STATE v. TARR
                            Opinion of the Court

¶18            The appropriateness of the Given Instruction is further
confirmed by Tarr’s argument in closing that he was using the car as a
stationary shelter. Tarr’s counsel explained in closing that a person “can be
in [his] car and drunk as long as [he is] not in actual physical control and
creating an imminent danger to the public.” Counsel further explained that
a person could use a vehicle as a shelter without being in control. The Given
Instruction and these closing arguments allowed Tarr to adequately present
his “shelter” defense to “actual physical control.” See Bruggeman, 161 Ariz.
at 510, 779 P.2d at 825 (stating that closing arguments may be taken into
account when considering the adequacy of a jury instruction).

¶19            Finally, contrary to Tarr’s suggestion, the “imminent control”
language of the Zaragoza instruction was not vague. Tarr argues that the
instruction endorsed by Zaragoza is incoherent because Zaragoza ruled that
there is no inquiry into intent, yet the concept of imminent control implies
intent. We believe Zaragoza dispels this argument. Zaragoza stated that
“any instruction on actual physical control that requires a jury to consider
a defendant’s purpose in exercising control of a vehicle incorrectly states the
law.” 221 Ariz. at 54, ¶ 20, 209 P.3d at 634 (emphasis added). This makes
sense because a defendant is in actual physical control if the defendant
exercises control and the defendant’s purpose in exercising control is
irrelevant. The Zaragoza court did not state that a defendant’s intent was
wholly irrelevant to the question of actual physical control, just that the
defendant’s purpose in exercising control should not be considered. In fact,
the instruction set out in Zaragoza included language directing the jury to
consider the defendant’s state of mind with regard to pulling off the road.
Id. at 54, ¶ 21, 209 P.3d at 634 (“Factors to be considered might include . . .
[w]hether the driver had voluntarily pulled off the road”) (emphasis added).
In determining whether Tarr exercised imminent control, presumably the
jury considered the plausibility of Tarr’s stated purpose for being in the
vehicle. Because the language of the instruction allowed Tarr to use the car
as a shelter and Tarr’s attorney explained this in closing, we conclude that
the instruction did not mislead the jury.

                              CONCLUSION

¶20           The evidence at trial was sufficient to support the jury’s
verdict based on Tarr driving the vehicle or being in “actual physical
control” as defined in the Given Instruction while under the influence or
with the requisite BAC. No reversible error occurred. We therefore affirm
Tarr’s convictions and sentences.



                                     :gsh




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