                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                       ALEXIS MARTINEZ, Appellant.

                             No. 1 CA-CR 13-0550
                              FILED 05-27-2014


             Appeal from the Superior Court in Yuma County
                         No. 1400CR201200054
              The Honorable Lawrence C. Kenworthy, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Edward F. McGee
Counsel for Appellant
                         STATE v. MARTINEZ
                         Decision of the Court



                     MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Donn Kessler joined.


J O N E S, Judge:

¶1           Defendant Alexis Martinez was convicted of various
criminal charges stemming from an incident that occurred in June of 2011.
The sole issue he raises on appeal is his assertion insufficient evidence
existed to convict him of leaving the scene of an injury accident. As we
conclude sufficient evidence did exist, we affirm his conviction.

                      Facts and Procedural History

¶2            During the morning hours of June 17, 2011, Martinez and his
girlfriend, V.E., became embroiled in an argument as Martinez was
driving to a house where he intended to spend the night. The argument
became so heated that V.E. attempted to gain the attention of an
unmarked police vehicle by waving her arms out of the passenger-side
window of Martinez’s vehicle as they drove by. The police officer
observed her waving, began following Martinez’s vehicle, and activated
his lights and siren to effect a stop. Martinez responded by telling V.E.
“[he] wasn’t stopping,” and accelerated his vehicle to speeds approaching
eighty miles per hour. Martinez attempted to turn off of the road he was
driving on, but, due to the high speed at which he was traveling, lost
control of the vehicle and crashed into a brick wall.

¶3            The officer following Martinez arrived at the accident site
and witnessed Martinez exit the vehicle, look directly at the officer, and
run from the scene on foot. The officer broadcasted the direction Martinez
ran and went to assist V.E, who was “very shaken up” and crying; she
declined, however, to be transported to the hospital after being seen by
Yuma Fire Department rescue personnel. Approximately a minute after
running from the scene, Martinez was apprehended by other officers and
taken into custody. The officers observed that Martinez was sweaty, and
had “very bloodshot, glassy” eyes. Martinez complained of pain and
shortness of breath and was transported to the hospital.




                                    2
                          STATE v. MARTINEZ
                          Decision of the Court

¶4            A search of Martinez’s vehicle revealed two small baggies of
marijuana, a used marijuana cigarette, and rolling papers. Martinez
consented to providing a blood sample to police at the hospital, and later
testing revealed Martinez’s blood contained: a blood alcohol content of
.075; 22 nanograms of carboxy THC, an inactive marijuana metabolite; and
an active methamphetamine level of 88 nanograms per milliliter.

¶5              Martinez was indicted on charges of leaving the scene of an
injury accident, a class 5 felony (Count 1); endangerment involving
domestic violence, a class 6 felony (Count 2); driving while under the
influence of intoxicating liquor, a class 1 misdemeanor (Count 3); driving
under the influence of drugs, a class 1 misdemeanor (Count 4); 1 and
endangerment to the general public, a class 6 felony (Count 5). Following
the filing of a motion to consolidate another case brought against Martinez
stemming from the night of the accident, an amended indictment was
filed, which added four additional charges against Martinez: aggravated
assault involving domestic violence, a class 3 felony (Count 6); criminal
damage, a class 5 felony (Count 7); and possession of marijuana and drug
paraphernalia, both class 6 felonies (Counts 8 and 9).

¶6            At trial, without objection from the State, the court granted
Martinez’s Rule 20 motion for judgment of acquittal as to Count 5. A jury
found Martinez guilty on all remaining counts, except Count 6, which
resulted in acquittal. Martinez was sentenced to maximum prison terms
of 3 years on Count 1, 2.25 years on Count 2, and 3 years on Count 7. He
was sentenced to 6 months’ jail time for both Counts 3 and 4, and was
placed on unsupervised probation for a period of one year for Counts 8
and 9. Count 1 was set to be served consecutively to the other counts,
which were to be served concurrently to one another. Martinez timely




1 Specifically, Martinez was indicted, at Count 4, for violation of Arizona
Revised Statutes (A.R.S.) section 28-1381(A)(3). This Court recognizes our
Supreme Court’s recent holding in State ex rel. Montgomery v. Harris, ___
Ariz. ____, 322 P.3d 160 (2014), that an (A)(3) conviction may not be
predicated solely upon the existence of the non-impairing marijuana
metabolite, Carboxy THC, in a defendant’s blood. Id. at 164-165, ¶¶ 24-25.
However, in this instance, beyond the existence of that metabolite, testing
also revealed Martinez’s blood contained traces of active
methamphetamine; in and of itself a sufficient basis to sustain the A.R.S. §
28-1381(A)(3) charge. See A.R.S. §§ 28-1381(A)(3), 13-1402(6)(c)(xxxviii).



                                     3
                           STATE v. MARTINEZ
                           Decision of the Court

appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A) (2014), 2
13-4031 (2014), and 13-4033(A)(1) (2014).

                             Standard of Review

¶7              Martinez argues insufficient evidence was presented at trial
to sustain a conviction for leaving the scene of an injury accident. 3 When
reviewing for sufficiency of evidence, we determine if substantial
evidence was presented at trial to support the jury verdict. State v. Stroud,
209 Ariz. 410, 411, ¶ 6, 103 P.3d 912, 913 (2005). “Substantial evidence has
been described as more than a mere scintilla of evidence; but it
nonetheless must be evidence that reasonable persons could accept as
sufficient to support a guilty verdict beyond a reasonable doubt.” Id. at
411-12, ¶ 6, 103 P.3d at 913-14 (quoting State v. Hughes, 189 Ariz. 62, 73,
938 P.2d 457, 469 (1997)) (internal quotations marks omitted). To
determine whether substantial evidence exists, we view the facts in the
light most favorable to sustaining the jury verdict. State v. Cox, 217 Ariz.
353, 357, ¶ 22, 174 P.3d 265, 269 (2007). “The relevant question is whether
. . . any rational trier of fact could have found the essential elements of the
crime beyond a reasonable doubt.” Id. (quoting Jackson v. Virginia, 443
U.S. 307, 319 (1979)) (internal quotation marks omitted).

                                 Discussion

¶8           A driver is guilty of leaving the scene of an accident if the
accident results in the injury or death of a person, and the driver fails to
satisfy two prongs: (1) “Immediately stop the vehicle at the scene of the


2 Absent material revision after the relevant date, we cite a statute’s
current version.
3 Although Martinez made an Arizona Rule of Criminal Procedure 20

motion for judgment of acquittal as to all counts, Martinez did not make
the argument he now advances with regard to Count 1. Further, Martinez
did not request that the jury be instructed as to the definition of injury or
object to the jury not being provided with one. As he did not raise this
argument below, we review for fundamental error. See State v. Henderson,
210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (“Fundamental error
review . . . applies when a defendant fails to object to alleged trial error.”).
A conviction based upon insufficient evidence, however, constitutes
fundamental error. State v. Zinsmeyer, 222 Ariz. 612, 623, ¶27, 218 P.3d
1069, 1080 (App. 2009), overruled on other grounds by State v. Bonfiglio, 231
Ariz. 371, 374, ¶ 15, 295 P.3d 948, 951 (2013).



                                       4
                           STATE v. MARTINEZ
                           Decision of the Court

accident or as close to the accident scene as possible [and] immediately
return to the accident scene[;]“ and (2) remain at the scene of the accident
until the driver has fulfilled the requirements of § 28-663.” 4 A.R.S. § 28-
661(A) (2014). If the accident results “in an injury other than death or
serious physical injury as defined in § 13-105,” and the driver of a vehicle
involved does not satisfy the obligations set forth in § 28-661(A), the
driver is guilty of a class 5 felony. A.R.S. § 28-661(C). 5

¶9            Martinez does not contest that he failed to comply with the
requirements of § 28-663 or that he fled from the accident scene.
Nonetheless, he argues the evidence does not demonstrate that V.E., the
only other person involved in the single car accident, was “injured” so as
to implicate § 28-661. 6

¶10          V.E. testified at trial that “it hurt” when the vehicle impacted
the wall and that the wind was knocked out of her. The officer V.E.
waved down prior to the accident testified that V.E. was “seen on scene by
[the Yuma Fire Department rescue personnel]” but declined to be
transported to the hospital or receive further treatment.

¶11           The word “injury” is not defined in Title 26, chapter 4, nor is
there case law defining the word within the context of § 28-661(C). When
a definition is not provided by statute, we give words their ordinary
meaning. Cox, 217 Ariz. at 356, ¶ 20, 174 P.3d at 268; A.R.S. § 1-213 (2014)
(“Words and phrases shall be construed according to the common and
approved use of the language.”). Random House defines “injury” to

4 A.R.S. § 28-663 (2014) bestows three obligations upon “the driver of a
vehicle involved in an accident resulting in injury to or death of a
person[:]” (1) supply the driver’s name, address, and vehicle registration
number; (2) if requested, provide his driver’s license to the other party
involved; and (3) “[r]ender reasonable assistance to a person injured in the
accident, including making arrangements for the carrying of the person to
a physician, surgeon or hospital for medical or surgical treatment if it is
apparent that treatment is necessary or if the carrying is requested by the
injured person.”
5 If the accident results in a death or a serious physical injury, the crime is

classified as a class 3 felony, unless the driver was the cause of an
accident, in which case it is a class 2 felony. A.R.S. § 28-661(B).
6 If an accident does not result in an injury, serious or otherwise, or death,

and the driver fails to comply with the requirements of § 28-663(A), the
driver is guilty of a class 3 misdemeanor. A.R.S. § 28-663(B) (2013).



                                      5
                           STATE v. MARTINEZ
                           Decision of the Court

mean a “harm done or sustained.” Random House’s College Dictionary 686
(First Rev. Ed. 1984). American Heritage defines “injury” as “damage or
harm done to or suffered by a person or thing.” The American Heritage
Dictionary 902 (4th Ed. 2000). A rational jury could determine that an
incident that “hurt” and caused the wind to be knocked out of V.E.
established harm had been sustained or suffered by V.E. Thus, sufficient
evidence existed to convict Martinez of Count 1.

¶12            Martinez contends that the definition for “injury” should be
supplied by the definition for “personal injury” set forth in § 13-105(33),
which requires the “impairment of physical condition,” and that the
testimony at trial failed to establish V.E. suffered any such impairment.
We disagree. “We interpret statutes to effect the intent of the legislature.”
State v. Guillory, 199 Ariz. 462, 464, ¶ 3, 18 P.3d 1261, 1263 (App. 2001). An
established rule of statutory construction is that “[w]hen the legislature
has specifically included a term in some places within a statute and
excluded it in other places, courts will not read that term into sections
from which it was excluded.” State v. Gonzales, 206 Ariz. 469, 471, ¶ 11, 80
P.3d 276, 278 (App. 2003). Section 28-661(C) governs “accident[s]
resulting in an injury other than death or serious physical injury as defined in
§ 13-105.” The legislature specifically tied the definition of “serious
physical injury” to the one provided in our criminal code. Had the
legislature intended to also tie the definition of “injury” to the one
provided for “physical injury” in § 13-105, it easily could have done so.

¶13            Even assuming, for the sake of argument, that the legislature
intended “injury” to mean “physical injury” as defined in § 13-105, there
was still sufficient evidence presented to sustain Martinez’s conviction.
Section 13-105 defines “physical injury” as “the impairment of physical
condition.” A.R.S. § 13-105(33). The terms “impairment” or “physical
condition” are not provided statutory definitions, so we again turn to their
ordinary meanings for guidance. Cox, 217 Ariz. at 356, ¶ 20, 174 P.3d at
268; A.R.S. § 1-213. An “impairment” causes something “[t]o diminish, as
in strength, value or quality;” “physical,” in this context, means “of or
relating to the body;” and a “condition” refers to either “a mode or state of
being” or “a state of health.” The American Heritage Dictionary 383, 878,
1325 (4th Ed. 2000).

¶14             V.E. testified she had the wind knocked out of her as a
result of the accident. It would have been reasonable for the jury to
conclude that the impact lessened the quality of a physical condition, i.e.,
her ability to breathe.



                                       6
                          STATE v. MARTINEZ
                          Decision of the Court

¶15           Martinez also argues V.E. did not sustain an injury of the
sort contemplated by § 28-661 because the injuries complained of by V.E.
were fleeting and did not prevent her from immediately resuming normal
activities. This argument is unavailing. Nothing in § 28-661, or even § 13-
105(33), suggests an ailment need exist or affect a person for any certain
amount of time to qualify as an “injury.” A plain language reading of
§ 28-661 requires only that, when an injury accident occurs, the driver of a
vehicle involved in the accident stop and “render reasonable assistance to
a person injured in the accident.” A.R.S. §§ 28-661(A), -663.

                               Conclusion

¶16           As sufficient evidence existed to show V.E. suffered an
injury, we affirm Martinez’s conviction for leaving the scene of an injury
accident.




                                 :gsh




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