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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       DUANE DEE LANE, Appellant.

                             No. 1 CA-CR 16-0812
                               FILED 7-31-2018


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-124790-001
                 The Honorable Joan M. Sinclair, Judge

                                  AFFIRMED


                                   COUNSEL

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

The Nolan Law Firm PLLC, Mesa
By Todd E. Nolan, Cari McConeghy Nolan
Counsel for Appellant
                              STATE v. LANE
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Jon W. Thompson joined.


B R O W N, Judge:

¶1            Duane Dee Lane appeals his convictions and sentences for
one count of aggravated assault and five counts of endangerment. He
argues the trial court erred by (1) not striking a biased juror during voir
dire; (2) admitting improper character and other act evidence; (3) denying
his motion for judgment of acquittal; (4) precluding evidence of a medical
defense; (5) improperly instructing the jury on reasonable doubt; and (6)
relying on improper aggravating factors at sentencing. For the following
reasons, we affirm.

           FACTUAL AND PROCEDURAL BACKGROUND

¶2            In the early afternoon, Lane was driving over 50 miles per
hour when he rear-ended a Kia automobile stopped at a traffic light,
injuring his passenger and the five occupants of the Kia. One of the young
children in the Kia’s back seat was seriously injured.

¶3           A detective interviewed Lane and noticed signs of
impairment. Officers then obtained samples of Lane’s urine and blood,
subsequent testing of which revealed the presence of a heroin metabolite,
morphine, amphetamine, and methamphetamine. Lane admitted he took
“two pain pills” the morning of the collision.

¶4            The State charged Lane with one count of aggravated assault,
a class 2 dangerous felony (Count 1), and five counts of endangerment, class
6 dangerous felonies (Counts 2-6). For Counts 1 to 5, the jury found Lane
guilty as charged and, during the aggravation phase of trial, found the
offenses involved the use, threatened use or possession of a deadly weapon
or dangerous instrument during the commission of the crime and that the
offense resulted in the infliction or threatened infliction of serious physical
injury. For Count 6, the endangerment charge relating to Lane’s passenger,
the jury found Lane guilty of the lesser-included offense of misdemeanor
endangerment. The court imposed a slightly aggravated sentence for the
aggravated assault conviction, presumptive sentences for the four felony



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                             STATE v. LANE
                           Decision of the Court

endangerment convictions, and a terminal disposition for the misdemeanor
based on time served. Lane timely appealed.

                              DISCUSSION

      A.     Failure to Strike Prospective Juror

¶5           During voir dire, prospective juror 28 and the trial court had
the following exchange:

      PROSPECTIVE JUROR: My husband was hit by a driver some
      years ago, and that driver just took off, and we don’t know
      who that was. My husband has since passed away, not based
      on that, but I’m a widow.

      Also a while back we had the back of our mailboxes just
      totally ripped off and there was a credit card coming from the
      bank at the time. Bottom line is somebody got our credit card,
      had a beautiful $45,000 wedding. You can see all the point of
      sales where they went through and spent.

      THE COURT: I’m sure it was lovely.           Was anyone ever
      charged with either of those things?

      PROSPECTIVE JUROR: No.

      THE COURT: Okay. Either of those incidents make it difficult
      for you to be fair and impartial?

      PROSPECTIVE JUROR: Possibly. I’m not sure.

      THE COURT: Okay. In what way?

      PROSPECTIVE JUROR: The car, I think the car accident, the
      hitting, person not stopping is difficult.

      THE COURT: Okay. Okay.

Lane argues the court reversibly erred by failing to sua sponte strike Juror
28. According to Lane, the juror’s experience involving a traffic accident
reflected her inability to be fair and impartial, and her comments
established a presumption of prejudice.

¶6             Here, Lane had the opportunity to address whatever
purported error arose during voir dire in connection with Juror 28. At the
very least, his counsel could have questioned Juror 28 about her comments

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                              STATE v. LANE
                            Decision of the Court

to the court, but failed to do so. Lane did not request that the court excuse
Juror 28 for cause, nor did he use a peremptory strike to remove her. Lane
also passed the jury panel, which included Juror 28. He has therefore
waived his challenge to the court’s selection of Juror 28. See State v. Rubio,
219 Ariz. 177, 181, ¶ 12 (App. 2008) (holding that a defendant “waives any
error” if he or she does not “use an available peremptory strike to remove
an objectionable juror whom the trial court has refused to remove for
cause”); see also State v. Smith, 228 Ariz. 126, 128, ¶ 7 (App. 2011) (explaining
that the waiver rule articulated in Rubio also applies when the defendant
fails to object to a juror).

¶7             Waiver aside, Lane has not established fundamental,
prejudicial error. See State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20 (2005).
Juror 28’s statement that her prior experiences could “[p]ossibly” make it
difficult for her to be fair, without more, does not establish a presumption
of prejudice. See State v. Bible, 175 Ariz. 549, 573 (1993) (concluding that no
fundamental error occurred when the trial court did not sua sponte strike
several jurors who “indicated that, for one reason or another, they would
find it difficult but not impossible to be fair and impartial”). Moreover,
given the lack of follow-up questioning, Juror 28 was not afforded the
opportunity to state whether she could render a fair verdict, see id., but she
provided an implicit indication she could be fair when she did not raise her
hand after the court asked if there was “anyone who would be unable to
follow the law as given.” Lane has thus failed to meet his burden of
showing he was prejudiced when the trial court did not sua sponte strike
Juror 28.

       B.     Impeachment Evidence

¶8            During trial, Pretrial Services1 reported that Lane had
violated curfew, failed to submit to drug testing and participate in
substance abuse treatment, and admitted to using methamphetamine on
two occasions while trial was pending. When Lane subsequently testified,
defense counsel asked him whether he was “honest” when he admitted to
the investigating detective he had smoked methamphetamine the day
before the traffic accident. Lane responded as follows:




1     Pretrial Services, a division of Adult Probation, monitors a
defendant’s compliance with their conditions of release pending trial.



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                              STATE v. LANE
                            Decision of the Court

       Yes, I told him, I said, yeah, I was at a party, you know. A
       bunch of boilermakers, you know.[2] We were all –- some
       were not partying, but some are, you know. It was just time
       off when we’re not working. And, yes, I did take some meth,
       yeah. I smoked some of it. And I didn’t like it.

       And you know, like, man, I remember those days, you know.
       Bad memories, you know. And that’s about it, you know. I
       wasn’t going to drink. He offered me a drink, and I said, “I
       don’t drink anymore.”

When defense counsel subsequently asked Lane whether he had “done
meth more than just that day,” Lane responded, “Oh, of course, yes. I mean
–- I mean, in the past, yes.”

¶9           Based on the foregoing testimony, the prosecutor requested
the court’s permission to impeach Lane on cross-examination with his
admission to Pretrial Services that he used methamphetamine while trial
was pending. Over Lanes’ objection on grounds he did not “open the door”
to the State’s proffered evidence, the trial court granted the motion.
Accordingly, Lane acknowledged during cross-examination that he twice
used methamphetamine a month before trial commenced.

¶10          Lane argues the trial court erred in allowing the State to
present evidence of his methamphetamine use while on release. He
contends his direct examination testimony “in no way opened the door for
discussion about pretrial services alleging that [Lane] had recently ingested
meth.” We review the court’s ruling for an abuse of discretion. See State v.
Hausner, 230 Ariz. 60, 78-79, ¶ 73 (2012).

       Except for a criminal conviction under Rule 609, extrinsic
       evidence is not admissible to prove specific instances of a
       witness’s conduct in order to attack or support the witness’s
       character for truthfulness. But the court may, on cross-
       examination, allow them to be inquired into if they are
       probative of the character for truthfulness or untruthfulness
       of . . . the witness.

Ariz. R. Evid. 608(b)(1).




2      Lane was an apprentice boilermaker; thus, the reference to
“boilermakers” appears to allude to Lane’s co-workers.

                                     5
                              STATE v. LANE
                            Decision of the Court

¶11            Because Lane testified on direct that he “didn’t like”
methamphetamine and his drug use was “in the past,” the State could,
under Rule 608, permissibly inquire into Lane’s recent use of
methamphetamine to challenge his credibility. See Fridena v. Evans, 127
Ariz. 516, 520 (1980) (“The truthfulness and veracity of a witness is always
material.”). Despite his assertion to the contrary, Lane opened the door to
this line of inquiry. See State v. Lopez, 107 Ariz. 214, 217 (1971) (concluding
defendant opened door to impeachment of his credibility when he denied
ever being previously arrested). The court did not abuse its discretion.

¶12            Lane also argues admission of his recent drug use was error
under Arizona Rule of Evidence 404(b).3 Because Lane did not raise Rule
404 as a basis for his objection, we review for fundamental error. See State
v. Lopez, 217 Ariz. 433, 434-35, ¶ 4 (App. 2008).

¶13            Rule 404(b) provides that “evidence of other crimes, wrongs,
or acts is not admissible to prove the character of a person in order to show
action in conformity therewith.” Ariz. R. Evid. 404(b). The court did not
admit evidence of Lane’s recent drug use to show he acted in conformity
with a character trait. The evidence was admitted to impeach Lane’s
credibility. No error, fundamental or otherwise, occurred.

       C.     Medical Defense

¶14            During a break in proceedings prior to Lane’s testimony, the
State sought a ruling precluding “any type of testimony that might hint at
some type of medical defense.” The State informed the court that, although
Lane disclosed the possibility of such a defense, he had not disclosed any
medical diagnoses he would raise or an expert who would provide
supporting evidence. The court asked whether Lane “anticipate[d] going
in that direction, and Lane responded, “No.” Based on Lane’s response, the
court granted the State’s request.




3       Although Lane mentions Arizona Rule of Evidence 403 as an
additional basis for challenging the court’s ruling, he develops no
argument. We therefore do not address the admissibility of the evidence
under Rule 403. Ariz. R. Crim. P. 31.10(a)(7)(A) (requiring opening brief to
contain “appellant’s contentions with supporting reasons for each
contention, and with citations of legal authorities . . . on which the appellant
relies”); State v. Lindner, 227 Ariz. 69, 70 n.1, ¶ 3 (App. 2010) (finding waiver
because defendant “summarily refers” to issues in his opening brief and
“fail[s] to argue them”).

                                       6
                              STATE v. LANE
                            Decision of the Court

¶15            Lane argues the court’s ruling amounts to fundamental error.
We do not address the merits of this argument, however, because to the
extent the court erred, Lane invited the error. See State v. Pandeli, 215 Ariz.
514, 528, ¶ 50 (2007) (finding invited error because the trial court asked
defense counsel whether he “objected to the child molestation testimony
and he explicitly stated that he did not”). Moreover, we would be unable
to review Lane’s argument because he did not make an offer of proof
regarding a medical defense. See State v. Kaiser, 109 Ariz. 244, 246 (1973)
(“As a general rule evidence cannot be reviewed on appeal in the absence
of an offer of proof.”).

       D.     Portillo Instruction

¶16           Lane argues the trial court committed fundamental error by
instructing the jury on reasonable doubt pursuant to State v. Portillo, 182
Ariz. 592 (1995). The court did not err. Our supreme court has repeatedly
upheld the Portillo instruction and has instructed trial courts to use the
instruction in every criminal case. State v. Dann, 220 Ariz. 351, 365, ¶ 65
(2009). Even if we were inclined to do so, we have no authority to overrule
our supreme court’s decision on this matter. State v. Paredes-Solano, 223
Ariz. 284, 292, ¶ 23 (App. 2009).

       E.     Sufficiency of Evidence

¶17           Lane argues the superior court erred in denying his motion
for a judgment of acquittal regarding the felony endangerment convictions.
See Ariz. R. Crim. P. 20. We review the sufficiency of evidence de novo.
State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). “[T]he relevant question is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at ¶ 16 (quotation
omitted). “Substantial evidence . . . is such proof that reasonable persons
could accept as adequate and sufficient to support a conclusion of
defendant’s guilt beyond a reasonable doubt.” Id. (quotation omitted).
“Both direct and circumstantial evidence should be considered in
determining whether substantial evidence supports a conviction.” Id.

¶18            With respect to the four victims in the Kia, Lane contends the
evidence did not sufficiently prove he “recklessly endanger[ed] [them] with
a substantial risk of imminent death.” See A.R.S. § 13-1201(A) (“A person
commits endangerment by recklessly endangering another person with a
substantial risk of imminent death or physical injury.”). We disagree.




                                      7
                             STATE v. LANE
                           Decision of the Court

¶19            All the occupants of the Kia were transported to local
hospitals. The father of two of the three young children in the back seat,
R.D. and J.D., was driving the Kia, and the impact caused him to briefly
“black[] out.” When he regained consciousness as the car rolled through
the intersection, he stopped the vehicle. The driver’s door would not open
so he climbed out the window and tried “to get everybody out of the car
[because he] was afraid it was going to catch on fire.” He suffered a
fractured spine and a concussion. A third child in the back seat, the three-
year-old aggravated assault victim, suffered a severe head injury requiring
emergency brain surgery.

¶20            Further, an officer from the vehicular crimes unit (“VCU”)
who investigated the crime scene testified the airbag control module on
Lane’s vehicle revealed he was traveling 52 miles per hour when, without
braking, he impacted the back of the Kia, which was stopped at a red light.
Upon impact, the Kia suddenly lurched from a standstill to 49 miles per
hour and proceeded almost 160 feet into the intersection. Consistent with
the expert testimony, eyewitnesses described hearing a “really loud . . . big,
huge . . . crash,” after observing Lane driving “really, really fast.”
Significantly, the VCU officer testified that, based on the amount of force
involved, he was “shock[ed] there wasn’t a fatality in this crash.” Thus, the
State presented sufficient evidence to prove that Lane placed all of the Kia’s
occupants in actual substantial risk of imminent death. See State v. Carreon,
210 Ariz. 54, 63, ¶ 39 (2005) (“[A] defendant places a person in substantial
risk if he places the victim in actual substantial risk of imminent death.”)
(quotation omitted).

¶21           The jury could also reasonably conclude that Lane acted
recklessly. See A.R.S. § 13-105(10)(c). The State can prove recklessness by
showing that the defendant “was aware of and consciously disregarded the
risk” or “was unaware of the risk he created solely due to his voluntary
intoxication.” State v. Brown, 168 Ariz. 481, 483 (App. 1991). Here, Lane
was traveling 52 miles per hour—12 miles per hour over the speed limit—
when he did not attempt to stop as he approached the red light. Lane
admitted that he “wasn’t really paying attention to the road” and that he
was “count[ing] down just mentally in [his] head [that] it’s going to turn
green.” He explained he did not “brake at all” or “slow down” because he
thought the light would turn green by the time he entered the intersection.
That conduct by itself could reasonably be considered reckless.

¶22           Finally, the jury could reasonably find that Lane behaved
recklessly by driving while under the influence of both a stimulant and a
narcotic analgesic, thus rendering him unaware of the risk posed by his
driving. Passersby who stopped to offer assistance immediately after the

                                      8
                               STATE v. LANE
                             Decision of the Court

accident described Lane as “acting really weird,” “jumpy, but sort of calm,
too,” and as if “he just didn’t seem like he was there . . . it was like he didn’t
care about anything.” As noted, the drug recognition expert who
interviewed Lane later that day recognized multiple cues of impairment,
and blood and urine tests revealed the presence of various drugs in Lane’s
system at the time of the incident. The expert opined that based on Lane’s
noticeable impairment, he could not safely operate a motor vehicle the day
of the collision.

¶23          Based on the foregoing, substantial evidence supports Lane’s
felony endangerment convictions. Thus, the trial court properly denied
Lane’s Rule 20 motion.

       F.     Aggravating Factors

¶24          After the guilt phase of the trial, the court instructed the jury
regarding the aggravation phase and counsel presented oral arguments to
the jury. The jury found that the felony offenses involved the use of a
dangerous instrument and the infliction of serious physical injury.

¶25           Lane argues the trial court erred by relying on improper
factors to impose an aggravated sentence for the aggravated assault
conviction. He contends (1) the State was obligated to present “additional
evidence” at the aggravation phase beyond what the jury heard at the guilt
phase; and (2) the dangerousness factor used to aggravate the sentence was
improper because dangerousness is an element of aggravated assault.4
Because Lane did not raise these issues in the trial court, we review for
fundamental error. State v. Trujillo, 227 Ariz. 314, 317, ¶ 9 (App. 2011).

¶26            As a preliminary matter, we reject Lane’s unsupported
contention that the State was required to present additional evidence to the
jury to meet the burden of proving aggravating factors. The jury that
rendered the guilty verdicts was the same jury that found the aggravating
factors at the subsequent hearing. See State v. Roseberry, 210 Ariz. 360, 369,
¶ 47 (2005) (stating that “neither the State nor the defense presented any
new evidence because the aggravation jury was the same jury that heard
the guilt-phase evidence”). Therefore, the jury could properly rely solely



4     Lane also argues the sentences for the endangerment convictions
were “improper[ly] . . . aggravated.” As noted, however, the sentences for
the endangerment convictions were presumptive, not aggravated, terms.
Therefore, we do not address the purported impropriety in aggravating the
endangerment sentences.

                                        9
                             STATE v. LANE
                           Decision of the Court

on the evidence presented during the guilt phase to render its verdicts
regarding the aggravating factors. See id. at ¶¶ 48, 51.

¶27           Regarding the jury’s dangerous instrument finding, it would
have been error for the court to impose the aggravated sentence based on
that finding because use of a dangerous instrument is an element of the
aggravated assault conviction. See A.R.S. §§ 13-701(D)(2) (prohibiting use
of a deadly weapon or dangerous instrument to enhance sentence “if this
circumstance is an essential element of the offense of conviction”),
-1204(A)(2) (listing, as one of the circumstances in which assault becomes
aggravated assault, the use of “a deadly weapon or dangerous
instrument”). But the record does not show that the court relied on the
dangerousness finding to impose an aggravated sentence for the
aggravated assault conviction. Although Lane argues to the contrary, the
jury’s serious physical injury finding was a proper aggravating factor the
court could consider because serious physical injury was not an element of
the crime as stated in the final jury instructions; the State only needed to
prove physical injury. See A.R.S. §§ 13-1203(A)(1), -1204(A)(2). Thus, Lane
fails to meet his burden of establishing any error occurred, much less
fundamental error.

                              CONCLUSION

¶28          Based on the foregoing, we affirm Lane’s convictions and
sentences.




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




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