                          NOTICE: NOT FOR PUBLICATION.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.

                      MANUEL DURAN, JR., Appellant.

                             No. 1 CA-CR 13-0191
                              FILED 06-19-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-143387-002
                The Honorable Karen A. Mullins, Judge

                       AFFIRMED AS CORRECTED


                                   COUNSEL

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


Maricopa County Public Defender’s Office, Phoenix
By Cory Engle
Counsel for Appellant
                              State v. Duran
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.


OROZCO, Judge:

¶1            Manuel Duran, Jr. (Defendant) appeals his convictions and
sentences for (1) aggravated driving or actual physical control while
impaired by alcohol drugs, inhalants, or any combination thereof; (2)
aggravated driving or actual physical control while there is any drug or
metabolite in the person’s body; and (3) possession or use of marijuana.

¶2              Defendant’s counsel filed a brief in accordance with Anders
v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d
878 (1969), advising this court that after a search of the entire appellate
record, he found no arguable question of law that was not frivolous.
Defendant was afforded the opportunity to file a supplemental brief in
propria persona, but has not done so. See State v. Clark, 196 Ariz. 530, 537,
¶ 30, 2 P.2d 89, 96 (App. 1999).

¶3            Our obligation in this appeal is to review “the entire record
for reversible error.” Id. Finding no reversible error, we affirm
Defendant’s convictions and sentences but modify Defendant’s sentence
to omit the requirement that he pay for the cost of DNA testing.

                 FACTS AND PROCEDURAL HISTORY

¶4             On August 21, 2011, at approximately 11:30 p.m., City of
Phoenix Police Officer Justin L. (Officer L.) was on duty and observed a
vehicle fail to stop at a red traffic light, make a very wide turn crossing
into opposing traffic, make several erratic lane changes, and have
difficulty staying in one lane of travel. Officer L. stopped the vehicle.

¶5          As Officer L. approached the vehicle, he smelled marijuana
emanating from the vehicle. Officer L. also noticed the driver’s hands
were shaking, his eyes were bloodshot and watery, and his face had a
glazed and blank expression.      When asked for his identification,
Defendant presented Officer L. with an Arizona identification card and
immediately mentioned he would be obtaining a driver’s license the



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                              State v. Duran
                           Decision of the Court

following Monday. Officer L. later verified that Defendant’s driver’s
license was suspended at the time of the stop.

¶6            Upon questioning by Officer L., Defendant admitted that he
had smoked marijuana two hours before being stopped. As Defendant
exited the vehicle, Officer L. noticed Defendant had poor balance and
there was a “green-leafy substance” on the bottom of his shirt in the crotch
area that Officer L. identified as marijuana.

¶7           Officer L. searched the vehicle. Inside the vehicle, he found
a partially smoked marijuana cigarette on the floor in front of the
passenger seat, which Defendant spontaneously admitted to having
thrown on the floor because he was “scared.” Officer L. performed field
sobriety tests on Defendant. Defendant showed multiple cues of
impairment in each of the administered tests. Officer L. then arrested
Defendant.

¶8            At the police station, Defendant consented to various tests,
including a drug recognition exam and a blood draw. As part of the drug
recognition exam, Defendant underwent a portable breath test, which
registered at zero. Based on the results of the tests, Officer L.’s
observations, and his own observations of Defendant, the administering
officer concluded Defendant was under the influence of marijuana.
Although the results of the blood draw tested indicated Defendant tested
positive for marijuana and cocaine metabolite, the trial court struck in-
court testimony regarding the marijuana testing; and instructed the jury to
disregard the testimony regarding that portion of the test results. A lab
test of the partially smoked cigarette confirmed the cigarette contained
marijuana, in a usable amount.

¶9            Defendant was charged with: (1) aggravated driving or
actual physical control while under the influence of intoxicating liquor or
drugs while his driver’s license or privilege to drive was suspended,
cancelled, revoked or refused, a class four felony; (2) aggravated driving
or actual physical control with any drug or metabolite in the person’s
body while his driver’s license or privilege to drive was suspended,
cancelled, revoked or refused, a class four felony; and (3) possession or
use of marijuana, a class six felony. Shortly after his indictment, the State
filed motions alleging Defendant had historical priors and committed the
instant offenses while on probation.

¶10         Defendant failed to appear for trial and was tried in
absentia. The trial court found that Defendant was aware of the trial date,



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                              State v. Duran
                           Decision of the Court

and as such, waived his presence. The trial court instructed potential
jurors that it was Defendant’s right to be absent from the proceeding and
his absence should not be a factor when deciding the case.

¶11           A jury found Defendant guilty on all counts. At sentencing,
the trial court found Defendant had a prior felony conviction for
solicitation to commit burglary in the third degree, a class six, non-
dangerous felony.        The trial court sentenced Defendant to the
presumptive sentence of four-and-one-half years’ imprisonment for
counts one and two, to be served concurrently. Moreover, the trial court
ordered Defendant to serve a consecutive term of probation as to count
three. Defendant received 105 days of presentence incarceration credit.
Additionally, the trial court ordered Defendant to submit to DNA testing
and required him to pay the cost of the testing.

¶12           Defendant timely appealed. We have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (A.R.S.) sections 12-120.21.A.1 (2003), 13-4031, and
-4033.A.1 (2010).

                               DISCUSSION

¶13            We review the sufficiency of the evidence “in the light most
favorable to sustaining the conviction . . . .” State v. Tison, 129 Ariz. 546,
552, 633 P.2d 355, 361 (1981). Any reasonable inferences are resolved
against the defendant. Id. A reversal of a conviction based on
insufficiency of the evidence requires a clear showing that there is not
sufficient evidence to support the jury’s conclusions, under any
hypothesis whatsoever. State v. Williams, 209 Ariz. 228, 231, ¶ 6, 99 P.3d
43, 46 (App. 2004) (stating that we will not substitute our judgment for
that of the jury).

I.     Count One: Aggravated Driving While Under the Influence

¶14            To obtain a conviction on this count, the State needed to
prove: (1) Defendant was driving or in actual physical control of a
vehicle; (2) under the influence of alcohol or any drug; and (3) impaired to
slightest degree; (4) while his driver’s license was suspended. See A.R.S.
§§ 28-1381.A.1 (2012) and -1383.A.1 (Supp. 2013).

¶15          Sufficient evidence was presented to prove the first element
because Defendant was in the driver’s seat when Officer L. pulled over
Defendant’s vehicle. Likewise, the second and third elements were
established by the evidence. Officer L. testified that, when he stopped


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                              State v. Duran
                           Decision of the Court

Defendant’s vehicle, Defendant’s hands were shaking, his eyes were
bloodshot and watery, and he had a blank expression. At the police
station, during a drug recognition test, Defendant displayed several signs
that he was under the influence of a drug and had been driving while he
was impaired to the slightest degree. Moreover, Defendant admitted he
was impaired.

¶16         The fourth element was met because the State called an
employee from the Arizona Department of Motor Vehicles who testified
that Defendant’s license was suspended at the time he was stopped.

¶17           Thus, we find sufficient evidence supports the jury’s verdicts
as to count one.

II.     Count Two: Aggravated Driving While Under the Influence

¶18           Under count two, the State was required to prove: (1)
Defendant was driving or in actual physical control of a vehicle, (2) while
any drug or metabolite was in his body; (3) while his license was
suspended. See id. §§ 28-1381.A.3 (2012) and -1383.A.1. As discussed
above, sufficient evidence supports the jury’s verdicts as to the first and
third elements of the offense. For this count, however, the jury needed to
make a separate finding that Defendant was driving with an impairing
drug or metabolite in his body. See State ex rel. Montgomery v. Harris
(Harris), 234 Ariz. 343, 347, ¶ 24, 322 P.3d 160, 164 (2014) (“we hold that
the ‘metabolite’ reference in § 28-1281(A)(3) is limited to any of a
proscribed substance’s metabolites that are capable of causing
impairment.”).

¶19           In this case, the jury heard evidence that based on the results
from Defendant’s blood drawn at the time of his arrest, Defendant tested
positive for cocaine metabolite. Moreover, the jury also heard testimony,
as discussed above, regarding Defendant’s appearance and behavior.

¶20           Thus, we find sufficient evidence supports the jury’s verdicts
as to count two.

III.   Count Three: Possession or Use of Marijuana

¶21         For count three, the State was required to prove Defendant
knowingly possessed or used marijuana at the time of arrest. A.R.S. § 13-
3405.A.1 (Supp. 2013). The jury heard testimony from an officer who
examined the cigarette found in Defendant’s vehicle at the time he was



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                              State v. Duran
                           Decision of the Court

stopped. The officer explained an examination indicated the cigarette was
a marijuana cigarette of a usable amount.

¶22           Thus, we find sufficient evidence supports the jury’s verdicts
as to count three.

IV.    Sentencing Correction

       A.     Order Requiring DNA Testing

¶23           The court ordered Defendant to submit to DNA testing and
pay the cost of the testing pursuant to A.R.S. § 13-610 (Supp. 2013). While
§ 13-610.A authorizes the department of corrections to “secure a sufficient
sample of blood or other bodily substances for [DNA] testing,” the statute
does not identify who should incur the costs of testing. See, e.g., State v.
Reyes, 232 Ariz. 468, 471, ¶ 9, 307 P.3d 35, 38 (App. 2013).

¶24           Although Defendant could be fined as part of his sentence,
the trial court’s order that Defendant pay the DNA testing fee was not a
fine under § 13-801.A for the commission of felonies. See id. at 472, ¶ 13,
307 P.3d at 39. Because § 13-610 does not require Defendant to incur the
cost of the DNA testing, there is no basis for the cost to be imposed. See id.
at ¶ 14. Accordingly, we vacate the portion of the sentencing order
requiring Defendant to pay for DNA testing.

       B.     Presentence Incarceration

¶25            Our calculations indicate Defendant’s credit for presentence
incarceration should have been 102 days. The record before us indicates
that, prior to sentencing Defendant was incarcerated from November 19,
2012, through March 1, 2013. We find the trial court erred in calculating
Defendant’s presentence incarceration credit that resulted in Defendant
receiving a windfall of two days. However, because the State failed to
appeal this issue, we will not disturb the sentence imposed by the court.
State v. Dawson, 164 Ariz. 278, 282, 792 P.2d 741, 745 (1990).

                               CONCLUSION

¶26           We have read and considered counsel’s brief and have
searched the entire record for reversible error. See Leon, 104 Ariz. at 300,
451 P.2d at 881. We find none. All of the proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure. Defendant
was represented by counsel at all critical stages of the proceedings and
was given an opportunity to speak before sentencing. The sentences


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                             State v. Duran
                          Decision of the Court

imposed were within the statutory limits. Furthermore, based on our
review of the record before us, substantial evidence supports the jury’s
verdicts.

¶27           Counsel’s    obligations     pertaining    to   Defendant’s
representation in this appeal have ended. Counsel need do no more than
inform Defendant of the status of the appeal and his future options, unless
counsel’s review reveals an issue appropriate for submission to the
Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant has thirty days
from the date of this decision to proceed, if he desires, with a pro per
motion for reconsideration or petition for review.            Accordingly,
Defendant’s convictions and sentences are affirmed as corrected.




                               :gsh




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