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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                         DAWN MICHELLE RAEL,
                              Appellant.

                             No. 1 CA-CR 18-0723
                               FILED 12-10-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-119595-001
            The Honorable Julie A. LaFave, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Bain & Lauritano, PLC, Glendale
By Amy E. Bain
Counsel for Appellant
                             STATE v. RAEL
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Samuel A. Thumma delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Judge Paul J. McMurdie joined.


T H U M M A, Judge:

¶1            A jury convicted Dawn Rael of two felony aggravated driving
while under the influence of intoxicating liquor offenses. On appeal, Rael
challenges the admission of the retrograde extrapolation evidence; the jury
instructions on the legal presumptions of impairment; the prosecutor’s
comments during closing arguments; and the sufficiency of the evidence
for her convictions. Because Rael has not shown any reversible error, her
convictions are affirmed.

                 FACTS AND PROCEDURAL HISTORY

¶2            In April 2017, two bystanders, D.W. and R.B, were at a
Phoenix park. They saw a woman, later identified as Rael, drive into the
parking lot, hit a curb, turn the car around and then hit another curb. Rael
got out of the car and was stumbling while attempting to retrieve an item
thrown from the car. D.W. approached and smelled alcohol on Rael. Both
D.W. and R.B noticed Rael was slurring and having balance issues. They
also saw a young child in the backseat of the car. D.W. removed the keys
from the car and called the police. R.B. drove to a local fire department for
assistance. At trial, these witnesses testified these events occurred at about
4:00 p.m. or about 6:00 p.m.

¶3             Police arrived just before 8:00 p.m. When the officers
contacted Rael, they noticed a strong smell of alcohol coming from the car
and Rael. Rael the participated in various field sobriety tests. After failing
those tests, she was arrested.

¶4            After obtaining Rael’s consent for a blood draw, one officer
drew two vials of blood at 9:00 p.m. The same officer ran Rael’s driver’s
license and learned it was restricted. The Phoenix Crime Lab tested Rael’s
blood taken at 9:00 p.m., which showed a Blood Alcohol Concentration
(BAC) of .336. Rael was charged with two counts of aggravated driving
while under the influence of intoxicating liquor. Count one was for driving
under the influence with a license restriction, Ariz. Rev. Stat. (A.R.S.)



                                      2
                              STATE v. RAEL
                            Decision of the Court

section 28-1383(A)(1) (2019),1 a Class 4 felony, and count two was for
driving under the influence with a child under 15 years of age in the car,
A.R.S. § 28-1383(A)(3), a Class 6 felony.

¶5             At trial, the State presented testimony of seven witnesses:
D.W.; R.B.; three Phoenix Police Officers; a Phoenix Crime Lab technician;
and an Arizona Department of Motor Vehicles (DMV) employee. Rael
testified in her own defense. After a five-day trial, the jury found Rael guilty
as charged. Rael was later sentenced to four months in the Arizona
Department of Corrections, to be followed by two years of probation; the
court, however, stayed imposition of her sentence pending this appeal. This
court has jurisdiction over Rael’s timely appeal pursuant to Article 6,
Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-
4031, and -4033(A)(1).

                                DISCUSSION

¶6            Rael presses four arguments on appeal: (1) the retrograde
extrapolation evidence was irrelevant and inadmissible; (2) the jury should
not have been instructed on the legal presumptions of impairment; (3) the
prosecutor made improper statements during closing argument that were
so prejudicial as to warrant a new trial; and (4) there is insufficient evidence
to support the conviction.

I.     The Retrograde Extrapolation Evidence Was Relevant and
       Admissible.

¶7             Rael challenges the admissibility of the retrograde
extrapolation evidence under Arizona Rules of Evidence 401, 403 and 702.
This court reviews the superior court’s “determination of the relevancy and
admissibility of evidence for abuse of discretion.” State v. Rutledge, 205 Ariz.
7, 10 ¶ 15 (2003). A challenge to the admission of evidence is preserved
when a party makes a “timely object[ion] or moves to strike” and “states
the specific ground” for the objection. Ariz. R. Evid. 103(a)(1); State v. Lopez,
217 Ariz. 433, 434 ¶ 4 (App. 2008). Neither a general objection nor an
objection on another ground will preserve an issue for appeal. Lopez, 217
Ariz. at 434 ¶ 4. Until “the court rules definitively on the record,” the
objection must be renewed to preserve the issue for appeal. Ariz. R. Evid.
103(b). If a defendant fails to timely and specifically object, this court



1Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.


                                       3
                              STATE v. RAEL
                            Decision of the Court

reviews for fundamental error resulting in prejudice. State v. Escalante, 245
Ariz. 135, 140 ¶ 12 (2018).

¶8             Rael argues evidence of her BAC and retrograde analysis was
not relevant because the State “proceeded on DUI charges that only required
proof of impairment, not proof of an actual level of alcohol in the blood.”2
“Evidence is relevant if: (a) it has any tendency to make a fact more or less
probable than it would be without the evidence; and (b) the fact is of
consequence in determining the action.” Ariz. R. Evid. 401. In this case,
evidence of Rael’s BAC several hours after driving makes it more probable
that she was impaired to the slightest degree at the time of driving.
Additionally, once the State provided admissible evidence of Rael’s BAC
within two hours of driving, then the statutory presumptions applied. See
A.R.S. § 28-1381(G) (as applicable here, a finding of a BAC more than 0.08
gives rise to the presumption “that the defendant was under the influence
of intoxicating liquor”). Accordingly, Rael has not shown the superior court
abused its discretion in finding this evidence relevant.

¶9             Rael also challenges the admission of evidence of her BAC
and retrograde analysis under Rule 702(a) and (b). Rael claims “[c]ounsel
moved to preclude testimony of the retrograde extrapolations under Rule
702(a) and (b).” The record, however, shows only that Rael moved to
preclude admission of the evidence under Rule 401 (“Test for Relevant
Evidence”). Because Rael did not press a Rule 702 objection with the
superior court, she waived the issue on appeal, absent fundamental error
resulting in prejudice. See Ariz. R. Evid. 103(a); Lopez, 217 Ariz. at 434 ¶ 4;
Escalante, 245 Ariz. at 140 ¶ 12.

¶10             An error is fundamental if it “goes to the foundation of the
case,” takes away an essential right to the defendant’s defense or is “so
egregious that a defendant could not possibly have received a fair trial.”
Escalante, 245 Ariz. at 141 ¶¶ 18–20 (internal quotations and citations
omitted). Rael has not claimed, let alone shown, that admission of the
retrograde extrapolation evidence constituted fundamental error. See also
State ex rel. Montgomery v. Miller, 234 Ariz. 289, 305 ¶ 61 (App. 2014) (holding
retrograde extrapolation evidence admissible). Consequently, Rael has



2Rael also argues the evidence should have been excluded under Rule 403,
but failed to preserve the issue by timely objecting on that ground at trial.
See Ariz. R. Evid. 103(a); Lopez, 217 Ariz. at 434 ¶ 4. Rael has not
demonstrated the admission of this evidence was a fundamental error. See
Escalante, 245 Ariz. at 140 ¶ 12.


                                       4
                              STATE v. RAEL
                            Decision of the Court

failed to show that admission of this evidence was fundamental error
resulting in prejudice.

II.    The Superior Court Properly Instructed the Jury on the Statutory
       Presumptions.

¶11            Rael argues because she was not charged with any BAC-
specific offenses, the only relevant timeframe was her time of driving, and
any instructions on the statutory presumptions “erroneously gave the
impression that the jury could consider any relation-back testimony.”
Rael’s arguments fail for two reasons. First, Rael’s opening brief does not
cite to any legal authority supporting her argument. See Ariz. R. Civ. App.
P. 13(a)(7) (requiring citations to legal authority for appellant’s opening
brief). Second, nothing in the statutory presumptions limit their application
to cases charged under section 28-1381(A)(2). See A.R.S. § 28-1381(G)
(defendant’s alcohol concentration gives rise to several presumptions in an
action or trial under “this section or § 28-1383”).

¶12          This court addressed similar arguments in State v. Klausner,
where the State charged the defendant with a DUI under a theory of
impairment to the slightest degree, like Rael here. 194 Ariz. 169, 170 ¶¶ 2-3
(App. 1998). The defendant argued that, even though there was a BAC
reading within two hours of driving, such a reading does not prove
impairment at the time of driving. Id. at 172 ¶ 14. Klausner squarely rejected
that argument:

              We accept as a fact it is not possible to precisely
              quantify the alcohol content of a person’s blood
              at the time the person was driving from a
              sample taken at a later time without evidence to
              relate the sample back. This does not mean,
              however, that there is no relationship between a
              BAC reading taken within two hours of driving
              and whether a person’s driving was influenced
              to the slightest degree by alcohol. In many cases,
              there will be an obvious relationship.

Id. at 173 ¶ 17. In diffusing any Rule 403 concerns, the court upheld the
presumption explaining “jurors can understand that a BAC reading at the
time the test is taken may have some bearing on whether a driver was
impaired and also understand that evidence of what the BAC actually was
at the time of driving is even more relevant.” Id. at ¶ 20.




                                      5
                             STATE v. RAEL
                           Decision of the Court

¶13           In this case, using retrograde extrapolation, the State
presented evidence of Rael’s approximate BAC based on the various times
of driving. The retrogrades were calculated based on two driving times
presented at trial — 6:48 p.m. and 4:20 p.m. By presenting the retrogrades,
the State established Rael’s BAC within two hours of driving, which gave
rise to the statutory presumptions. A.R.S. § 28-1381(G). Thus, Rael has
shown no error for the superior court to instruct the jury on these
presumptions.

III.   The Prosecutor’s Comments During Closing Arguments Were Not
       Prosecutorial Misconduct.

¶14           Rael alleges the prosecutor’s “characterization of [Rael] as
lying coupled with his statements in closing arguments” were improper
prosecutorial misconduct resulting in prejudice. To determine if a
prosecutor’s comment is improper, the court considers “the context in
which [the comment] was made and whether the jury would naturally and
necessarily perceive it.” Rutledge, 205 Ariz. at 13 ¶ 33. If the comment rises
to misconduct, the defendant must show the prosecutor’s misconduct “so
infected the trial with unfairness as to make the resulting conviction a
denial of due process.” State v. Goudeau, 239 Ariz. 421, 465 ¶ 193 (2016)
(quoting State v. Hughes, 193 Ariz. 72, 79 ¶ 26 (1998)). In argument, counsel
is permitted to “draw[] reasonable inferences from the evidence.” State v.
Miniefield, 110 Ariz. 599, 602 (1974). The court considers the entire record
and the totality of the circumstances in evaluating claims of prosecutorial
misconduct. Rutledge, 205 Ariz. at 13 ¶ 33.

¶15           Rael argues the prosecutor’s characterization that she lied to
police was improper and not a reasonable inference from the evidence.
However, during both direct and cross-examination, Rael admitted that
when she spoke with police, she was not truthful in the amount of alcohol
she had consumed. Given Rael’s own admission at trial, it was not an
unreasonable inference for the prosecutor to say “[s]o essentially she lied.”
See Miniefield, 110 Ariz. at 602. Accordingly, Rael has shown no
prosecutorial misconduct.

IV.       Rael’s Conviction Is Supported by Substantial Evidence.

¶16          Rael challenges the superior court’s denial of her motion for
judgment of acquittal, which asserted there was “no substantial evidence to
support a conviction.” Ariz. R. Crim. P. 20(a)(1). Sufficiency of the evidence
is reviewed 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



                                      6
                              STATE v. RAEL
                            Decision of the Court

favorable to the prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” Id. at 562 ¶ 16
(quoting State v. Mathers, 165 Ariz. 64, 66 (1990)) (emphasis original).

¶17            To convict Rael of aggravated DUI, the State was required to
prove: (1) Rael drove a vehicle; (2) she was under the influence of
intoxicating liquor at the time of driving; (3) she was impaired to the
slightest degree by intoxicating liquor; (4) her license to drive was
suspended and/or restricted at the time she was driving; and (5) she knew
or should have known that her driver license was suspended and/or
restricted at the time of driving. See A.R.S. § 28-1383(A)(1); State v. Williams,
144 Ariz. 487, 489 (1985) (discussing necessary mental state); accord Rev.
Ariz. Jury Instr. (RAJI) Stand. Crim. 28.1383(A)(1)-1 (5th ed. 2019) (listing
elements). To convict on count two, the State had to prove elements one
through three and that “a person under fifteen years of age [was] in the
vehicle” at the time of the offense. A.R.S. § 28-1383(A)(3); accord RAJI Stand.
Crim. 28-1383(A)(3)-1.

¶18            During trial, both eyewitnesses testified that they saw Rael
driving in the parking lot and drive over a curb. When the witnesses
approached Rael, D.W. testified he could smell alcohol on her, and both
men saw that she was stumbling, and her speech was slurred. When the
witnesses looked into her car, they saw a child under the age of 15 strapped
into his car seat. Rael’s testimony confirmed she was driving with her son,
who was not yet three years old at the time.

¶19            The Phoenix Crime Lab technician testified that at 9:00 p.m.,
Rael’s blood had a BAC of .336. Based on retrograde extrapolations, that
technician could estimate Rael’s BAC within two hours of driving. If the
driving time was 6:48 p.m., Rael’s BAC ranged between .336 to .341. If the
driving time was 4:20 p.m., her BAC was estimated to range between .336
to .403 within two hours of driving. Phoenix Police Officers confirmed that,
at the time of the incident, Rael’s license was restricted. The DMV employee
testified Rael was sent a letter notifying her of the restriction and Rael’s
testimony confirmed she knew of the restriction.

¶20           After viewing the evidence in the light most favorable to the
prosecution, a “rational trier of fact could have found the essential elements
of the crime beyond a reasonable doubt.” West, 226 Ariz. at 562 ¶ 16
(quoting Mathers, 165 Ariz. at 66). Accordingly, the superior court did not
err in denying Rael’s Rule 20 Motion.




                                       7
                              STATE v. RAEL
                            Decision of the Court

V.     The Court Did Not Abuse Its Discretion in Denying Rael’s Rule
       24.1 Motion.

¶21            Finally, Rael argues her conviction “was contrary to the law
and contrary to the weight of the evidence.” Specifically, she claims the
State did not prove impairment at the time of driving and that Rael
“knowing[ly] [drove] in violation of a restriction on her license.” This court
reviews the denial of a motion for a new trial for abuse of discretion. State
v. Neal, 143 Ariz. 93, 97 (1984); see also State v. Fisher, 242 Ariz. 44, 52 ¶28
(Ariz. 2017) (“The appellate court does not sit as the ‘fourteenth’ juror.”).

¶22           As noted, there is substantial evidence to support Rael’s
convictions. The State was required to prove, and did in fact prove, that
Rael’s license had a restriction and Rael “knew or should have known” of the
restriction. Williams, 144 Ariz. at 489 (emphasis added); see A.R.S. § 28-
1383(A)(1). Rael has not shown the superior court abused its discretion in
denying her motion for a new trial.

                               CONCLUSION

¶23          Rael’s convictions are affirmed, and the case is remanded for
the imposition of the sentence previously stayed pending resolution of this
appeal.




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




                                         8
