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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                  ASHLEY NIGEL BURROWS, Appellant.

                             No. 1 CA-CR 18-0552
                             No. 1 CA-CR 18-0562
                                (Consolidated)
                               FILED 8-6-2019


          Appeal from the Superior Court in Maricopa County
                       No. CR2016-156474-001
                       No. CR2014-149357-001
         The Honorable Annielaurie Van Wie, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
                           STATE v. BURROWS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Kent E. Cattani joined.


C R U Z, Judge:

¶1            Ashley Nigel Burrows appeals his convictions and sentences
for two counts of aggravated driving or actual physical control while under
the influence of intoxicating liquor or drugs. Burrows argues that the trial
court committed error by precluding a witness first disclosed on the first
day of trial and by denying his motion for new trial based upon the
preclusion. For the following reasons, we affirm.

                  FACTS AND PROCEDURAL HISTORY1

¶2            On December 5, 2016, around 1:19 a.m., two Phoenix police
officers found Burrows asleep in the driver’s seat of his Cadillac Escalade
parked next to a gas pump at a Circle K in Phoenix. Burrows was the only
person in the vehicle, the keys were in the ignition, the engine was off, and
the windows were rolled up. The vehicle had been sitting in that spot for
at least an hour without moving. Finding Burrows exhibited signs and
symptoms consistent with alcohol consumption and impairment, the
officers conducted a DUI investigation and obtained a search warrant to
draw samples of Burrows’ blood. The blood test results showed a blood
alcohol content level of .306. Burrows’ driver’s license was suspended at
the time.

¶3            A grand jury charged Burrows with two counts of aggravated
driving or actual physical control while under the influence of intoxicating
liquor or drugs, class 4 felonies. After a five-day trial, a jury convicted
Burrows as charged. The trial court sentenced Burrows to a term of 4.5
years’ imprisonment. Burrows timely appealed, and we have jurisdiction
pursuant to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1),
13-4031, and -4033(A)(1).




1      We view the facts in the light most favorable to sustaining the
verdict. See State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).


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                            STATE v. BURROWS
                            Decision of the Court

                               DISCUSSION

¶4             On the first day of trial before jury selection commenced,
Burrows (through counsel) informed the State and the court that he became
aware earlier that afternoon of a previously undisclosed witness he
intended to call to testify. This witness was expected to testify that he
received a phone call from Burrows on the night of the incident, and later
went to the Circle K and drove Burrows, in the Escalade, from one location
at the Circle K to the gas pump.2 Burrows contended that he was previously
unaware of the witness’ involvement because of memory problems due to
his intoxication that night. Burrows explained in his motion for new trial
that he had learned of the witness from a coincidental meeting that occurred
on the day of jury selection “between 12:00pm and 1:30pm.”

¶5              On the second day of trial, Burrows told the court he would
likely not call the witness due to an inability to contact him “in time.” After
the witness showed up in court “shortly before noon” during this second
day of trial, Burrows provided additional details regarding the witness and
his anticipated testimony.

¶6            Burrows requested the court to allow the witness to testify
despite the untimely disclosure, and the State objected. The trial court
precluded the witness. Following the convictions, Burrows filed a motion
for new trial based upon the preclusion of the witness, and the trial court
denied the motion.

¶7             Arizona Rule of Criminal Procedure 15.7 governs a trial
court’s ability to issue sanctions for discovery violations, and the court has
broad discretion to determine the nature of a sanction. State v. Moody, 208
Ariz. 424, 454, ¶ 114 (2004); State v. DeCamp, 197 Ariz. 36, 40, ¶ 22 (App.
1999); State v. Delgado, 174 Ariz. 252, 256 (App. 1993). We review the trial
court’s imposition of a discovery violation sanction for an abuse of
discretion. Moody, 208 Ariz. at 454, ¶ 114. We will find an abuse of
discretion for a discovery violation only when “no reasonable judge would
have reached the same result under the circumstances.” State v. Naranjo,
234 Ariz. 233, 242, ¶ 29 (2014) (quoting State v. Armstrong, 208 Ariz. 345, 354,
¶ 40 (2004)).

¶8        Because preclusion impinges upon a defendant’s Sixth
Amendment right to present witnesses in his own defense, it should be


2      A prior witness testified that he had driven Burrows to the Circle K
in the Escalade but did not park the vehicle at the gas pump.


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                             STATE v. BURROWS
                             Decision of the Court

used only as a last resort. Taylor v. Illinois, 484 U.S. 400, 411-15 (1988); State
v. Valencia, 186 Ariz. 493, 502 (App. 1996); Delgado, 174 Ariz. at 257.
Nevertheless, preclusion is a proper remedy for negligence in failing to do
what is clearly provided by the rules of discovery. State v. Killean, 185 Ariz.
270, 271 (1996).

¶9             A sanction must be proportional to the discovery violation.
Payne, 233 Ariz. at 518, ¶ 155. An appropriate sanction “should have a
minimal effect on the evidence and merits of the case,” and preclusion of
the evidence is rarely an appropriate sanction for a discovery violation.
State v. Towery, 186 Ariz. 168, 186 (1996). Preclusion should be imposed
only if “other less stringent sanctions are not applicable.” State v. Smith, 123
Ariz. 243, 252 (1979). In determining whether preclusion is appropriate, a
court should consider how vital the witness is to the case; the degree of
surprise; bad faith; and any other relevant circumstances. Id.

¶10            A court may grant a new trial if “the verdict is contrary to law
or to the weight of the evidence.” Ariz. R. Crim. P. 24.1(c)(1). A trial court’s
ruling on a motion for new trial is reviewed for an abuse of discretion. State
v. Fischer, 242 Ariz. 44, 48, ¶ 10 (2017).

¶11             We will affirm a conviction when an abuse of discretion is
harmless. See State v. Valverde, 220 Ariz. 582, 585, ¶ 11 (2009), abrogated on
other grounds by State v. Escalante, 245 Ariz. 135, 140, ¶¶ 15-16 (2018). “Error,
be it constitutional or otherwise, is harmless if we can say, beyond a
reasonable doubt, that the error did not contribute to or affect the verdict.”
State v. Bible, 175 Ariz. 549, 588 (1993). We examine the harmlessness of an
error by determining whether there is a reasonable probability the verdict
would have been different in the absence of the error. State v. Hoskins, 199
Ariz. 127, 142-43, ¶ 57 (2000). Preclusion is harmless when evidence of guilt
is overwhelming. Valencia, 186 Ariz. at 502.

¶12          Two of the Smith factors for preclusion, discussed above, are
undisputed. Significant surprise from the late disclosure was clearly
present, and Burrows concedes as such. The trial court additionally found,
however, that bad faith resulting in the late disclosure was absent.

¶13            The remaining factors lead us to conclude that the trial court
did not abuse its discretion. As Burrows acknowledged in his Opening
Brief, the central issue for the jury to decide was whether Burrows—asleep
in the driver’s seat of his vehicle for over an hour at a gas station with the
keys in the ignition and the engine off—was in actual physical control of his
vehicle at the time the police contacted him. Testimony regarding whether



                                        4
                           STATE v. BURROWS
                           Decision of the Court

Burrows in fact drove his car thus was not necessary to the jury’s ultimate
decision.

¶14            After hearing the avowal of the witness’ anticipated
testimony, the court weighed the “vitality” of the testimony (the initial
Smith factor) against the actual physical control evidence presented. The
trial court concluded that the witness’ testimony failed to sufficiently
address the central actual physical control issue because it did nothing to
rebut Burrows’ factual situation at the precise time of police contact.
Indeed, Burrows was prepared to abandon calling the witness when he
believed the witness would not be contacted in time. As described properly
in the jury instructions,3 actual physical control is based wholly upon
current or imminent control of the vehicle; it is a current and prospective
consideration not retrospective. The witness’ testimony about past driving,
to the extent the jury found it credible, would not have addressed a required
element of the charged offenses.

¶15            Regarding Burrows’ due diligence, the trial court
persuasively reasoned that, under Burrows’ own theory of the case, the
existence of this witness could have been discovered merely by reviewing
Burrows’ phone calls or phone records from the night of the incident.
Regardless of memory problems arising from voluntary intoxication,
Burrows still possessed the ability to readily discover the information. The
court further indicated its skepticism, with seemingly valid cause, about the
circumstances and timing of the witness’ sudden appearance. In sum,
given the actual physical control evidence presented, the anticipated
testimony, and the totality of the circumstances of the late disclosure, we
cannot say the trial court abused its discretion either by precluding the
witness or denying the new trial.

¶16           Assuming arguendo the trial court abused its discretion, the
evidence establishing each element of the two charges makes any error
harmless. As discussed above, the undisputed facts established by the
police investigation supported a DUI conviction based entirely upon the
actual physical control factors germane at the time police contacted him.
The precluded witness’ testimony would not have altered the actual
physical control facts otherwise established. As such, precluding the

3      The jurors were instructed that “[i]n determining whether the
defendant was in actual physical control of the vehicle, you should consider
the totality of the circumstances shown by the evidence and whether the
defendant’s current or imminent control of the vehicle presented a real
danger to himself or others at the time alleged.”


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                           STATE v. BURROWS
                           Decision of the Court

witness did not contribute to or affect the verdict sufficiently to cause more
than harmless error.

                               CONCLUSION

¶17           For the foregoing reasons, we affirm.




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




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