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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     DAVID LY NAVARRO, Appellant.

                             No. 1 CA-CR 19-0235
                               FILED 2-13-2020


          Appeal from the Superior Court in Yavapai County
                       No. P1300CR201800289
        The Honorable Christopher L. Kottke, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

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

The Zickerman Law Office, PLLC, Flagstaff
By Adam Zickerman
Counsel for Appellant
                           STATE v. NAVARRO
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge David B. Gass joined.


C R U Z, Judge:

¶1           David Ly Navarro (“Navarro”) appeals his convictions of
aggravated driving, alleging insufficient evidence that he was the
individual driving the vehicle at the time the violations occurred. For the
following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2            At approximately 5:30 a.m. on November 13, 2016, E.R. was
driving northbound on Interstate 17 in Yavapai County with his wife, his
daughter S.R., and S.R.’s boyfriend. In his rearview mirror, E.R. saw
headlights that “kept getting closer and closer,” approaching “at a pretty
good rate of speed.” As the approaching headlights got “very close,” E.R.
“saw the headlights swerve behind us and then all of a sudden, all I saw
were taillights and dust and the taillights were rolling.” Within “fifteen,
twenty seconds,” E.R. made a U-turn across the median and drove
southbound toward the scene. Meanwhile, S.R. called 911. E.R. parked on
the shoulder and approached the median, where he saw a “pretty well
damaged” pickup truck with a broken windshield and one door
“hyperextended backwards wide open.”

¶3             As her family’s vehicle returned to the scene, S.R. saw the
truck’s “driver side door was open” and that Navarro was approximately
ten feet behind the vehicle. Navarro told E.R. “don’t call the police, I’m
okay” and asked E.R. to take him to “the next exit,” but E.R. was concerned
about Navarro’s condition and attempted to stall him until the ambulance
could arrive. E.R. noticed a “pretty predominant” odor of alcohol and that
Navarro’s speech was slow. Concerned that Navarro might attempt to flee,
S.R. made a second phone call to 911 and told the operator Navarro seemed
intoxicated. As police arrived, Navarro asked E.R. to “tell them you saw
someone run away . . . someone else was driving, they ran away.” Navarro
then got into the backseat of E.R.’s car briefly, and E.R. asked him to get out
of the car because “you are bleeding . . . I’m not taking you anywhere.”




                                      2
                            STATE v. NAVARRO
                            Decision of the Court

When police arrived, E.R. told a responding officer “[h]e’s going to try to
tell you that there was another driver; I did not see another driver.”

¶4            Trooper McCabe of the Arizona Department of Public Safety
Highway Patrol Division arrived, briefly walked around the damaged
pickup truck, and approached the ambulance where Navarro was seated.
Trooper McCabe noticed abrasions on Navarro’s hands and, consistent
with seatbelt injuries to a driver, bruising “[o]n the left side of his neck just
above the collar of his shirt.” After noticing Navarro’s speech was “heavy”
and his eyes “reddened and watery,” Trooper McCabe conducted a
horizontal gaze nystagmus and observed six cues “consistent with
impairment by alcohol.” Navarro told Trooper McCabe that he had been
drinking, so a friend named Jesse was driving the pickup to Camp Verde;
Navarro could not, however, provide a last name or phone number for
Jesse. He also told Trooper McCabe that his father owned the pickup.

¶5            Within two hours of the rollover crash, Trooper Hicks
conducted a blood draw, which determined that Navarro had a blood-
alcohol level of 0.094. When Trooper Hicks met Navarro at the hospital to
conduct the blood draw, Navarro was not wearing a shirt, and Trooper
Hicks noticed a “reddish mark” extending from the top of Navarro’s left
shoulder toward his right hip, ending at about his sternum.

¶6            In February 2018, Navarro was indicted on two counts of
aggravated driving, each Class 4 felonies, and one count of criminal
damage, a Class 5 felony. One aggravated driving charge related to driving
while under the influence of liquor or drugs while his driving privilege was
suspended or revoked; the second aggravated driving charge related to
driving or having actual physical control of a vehicle with a blood-alcohol
level greater than 0.08. Following a three-day trial, a jury found Navarro
guilty on both aggravated driving counts and found him not guilty on the
criminal damage count. The court sentenced him to three and one-half
years on each count and ordered the sentences to run concurrently.

¶7          Navarro timely appealed. We have jurisdiction pursuant to
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
-4033(A).

                                DISCUSSION

¶8             On appeal, Navarro argues that the State did not present
sufficient evidence that Navarro was the person driving at the time of the
crash. We review the sufficiency of the evidence to support a conviction de
novo. State v. Meeds, 244 Ariz. 454, 460, ¶ 9 (App. 2018).


                                       3
                           STATE v. NAVARRO
                           Decision of the Court

¶9             In reviewing the sufficiency of the evidence presented at trial,
we view facts in the light most favorable to sustaining the jury’s verdict to
determine “whether substantial evidence supports the jury’s verdict.” State
v. Cox, 217 Ariz. 353, 357, ¶ 22 (2007). Substantial evidence is evidence—
whether direct or circumstantial—that “reasonable persons could accept as
sufficient to support a guilty verdict beyond a reasonable doubt.” State v.
Hughes, 189 Ariz. 62, 73 (1997); see Meeds, 244 Ariz. at 460, ¶ 9. “[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.” Cox, 217 Ariz.
at 357, ¶ 22 (quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)).

¶10           To convict Navarro of the first count of aggravated driving
while under the influence of intoxicating liquor, the State had to prove
Navarro drove a vehicle while under the influence of alcohol; that he was
impaired; that his license or privilege to drive was suspended or revoked
at the time he was driving; and that Navarro knew or should have known
his license was suspended or revoked. A.R.S. §§ 28-1381, -1383(A)(1). With
respect to count two, to convict Navarro the State was required to prove he
drove a vehicle while under the influence of alcohol; that he was impaired;
and that he had an alcohol concentration of 0.08 or more within two hours
of driving or being in actual physical control of the vehicle. A.R.S. § 28-
1381(A).

¶11           At trial, Navarro stipulated to the qualifications of the
phlebotomist who conducted the blood draw, the accuracy of the results,
and their admission into evidence. Navarro’s blood-alcohol content was
0.094. The State introduced evidence that notice of suspension of Navarro’s
driving privilege was mailed to Navarro’s residence. On appeal, Navarro
challenges a single element of each count. He argues the State failed to
prove he was the driver of the pickup truck that rolled over on the morning
of the accident.1

¶12            At trial, E.R. and S.R. each testified they did not see anyone
other than Navarro at the scene of the accident. Trooper McCabe testified
that based on how the dust and debris had settled in the pickup’s interior,
he did “not believe there was a second person” in the vehicle and “[t]he
only position that was obviously occupied based on that debris was the
driver’s seat.” Trooper McCabe also testified that he and a second trooper

1     Navarro does not appeal the findings related to the license
suspension element; accordingly, we do not address that element of the
conviction.


                                      4
                           STATE v. NAVARRO
                           Decision of the Court

looked for footprints leading away from the vehicle and could not find
anything that indicated someone had run away from the scene. Finally,
both Trooper McCabe and Trooper Hicks testified they saw a mark on
Navarro’s left shoulder consistent with injuries sustained by a driver’s side
seatbelt. Given this evidence, a rational trier of fact could find beyond a
reasonable doubt that Navarro was the driver, and sole occupant, of the
pickup truck at the time of the rollover crash.

¶13            At trial and on appeal, Navarro insists that someone named
Jesse was driving and that Navarro was asleep until the pickup crashed. At
trial the jury weighs the evidence and determines the credibility of
witnesses. State v. Cid, 181 Ariz. 496, 500 (App. 1995). The jury was free to
accept or reject Navarro’s testimony and we will not second-guess the jury’s
credibility determination. See id. at 501. Because there is substantial
evidence to support the jury’s verdict, Navarro is not entitled to reversal of
his convictions.

                               CONCLUSION

¶14           For the reasons stated, we affirm Navarro’s convictions and
sentences.




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




                                        5
