                                                                   FILED BY CLERK
                        IN THE COURT OF APPEALS
                            STATE OF ARIZONA                           SEP 30 2011
                              DIVISION TWO
                                                                       COURT OF APPEALS
                                                                         DIVISION TWO


THE STATE OF ARIZONA,                 )
                                      )            2 CA-CR 2010-0396
            Appellant/Cross-Appellee, )            DEPARTMENT A
                                      )
         v.                           )            OPINION
                                      )
KYLE EVAN SMITH,                      )
                                      )
            Appellee/Cross-Appellant. )
                                      )


           APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                             Cause No. CR20101369001

                         Honorable John S. Leonardo, Judge

                           AFFIRMED IN PART,
                     VACATED IN PART, AND REMANDED


Barbara LaWall, Pima County Attorney
 By Jacob R. Lines                                                           Tucson
                                                             Attorneys for Appellant/
                                                                     Cross-Appellee
Isabel G. Garcia, Pima County Legal Defender
 By Stephan McCaffery                                                       Tucson
                                                             Attorneys for Appellee/
                                                                    Cross-Appellant


E C K E R S T R O M, Presiding Judge.
¶1            Following a jury trial, Kyle Smith was convicted of two counts of

aggravated driving under the influence of an intoxicant (DUI) arising from the same

incident.   The trial court suspended the imposition of sentence, placed Smith on

concurrent, three-year terms of probation, and ordered that he be imprisoned for four

months pursuant to A.R.S. § 28-1383(D)(1). On appeal, the state challenges the trial

court‟s determination that Smith is eligible for probation. In his cross-appeal, Smith

challenges the court‟s failure to strike a juror for cause and one of its instructions to the

jury. For the reasons set forth below, we affirm in part and reverse in part.

                          Factual and Procedural Background

¶2            The facts relevant to our disposition are purely procedural. See State v.

Garcia, 220 Ariz. 49, ¶ 2, 202 P.3d 514, 515 (App. 2008). A grand jury alleged that on

April 11, 2010, Smith committed aggravated DUI with a suspended, revoked, or

restricted license, see A.R.S. §§ 28-1381(A)(1), 28-1383(A)(1), and aggravated driving

with an alcohol concentration of .08 or more with a suspended, revoked, or restricted

license. See §§ 28-1381(A)(2), 28-1383(A)(1).

¶3            During voir dire, a member of the venire panel, Juror T., indicated twice

that he had experienced difficulty hearing the questions asked of the other prospective

jurors. After T. asked the court to speak more loudly, he answered the questions posed to

him without incident. When the court asked Smith whether he passed the panel, he raised

no objection to T. or any other prospective juror. Juror T. subsequently was impaneled

and participated in rendering the verdicts.



                                              2
¶4            The trial court provided jury instructions without objection from Smith, and

he was found guilty on both counts as noted above. For sentencing purposes, the state

alleged, and the court found, that Smith had committed and been convicted of

endangerment in 1999, a class six felony offense that was “not an historical prior felony”

because it was neither a dangerous-nature offense nor had been committed in the five

years preceding the instant convictions. Over the state‟s objection, the court found Smith

was eligible for probation nonetheless, and it suspended the imposition of sentence. The

state filed a timely notice of appeal from the court‟s disposition, see A.R.S. § 13-4032(5),

and Smith filed a timely notice of cross-appeal from the judgment. See A.R.S. § 13-

4033(A)(1); Ariz. R. Crim. P. 31.3(a).

                                         Juror Strike

¶5            In his cross-appeal, Smith first contends the trial court committed

fundamental error by refusing sua sponte to strike Juror T. for cause based on his

apparent hearing problems. We need not address this issue, however, because Smith

failed to use a peremptory strike to remove T. from the venire panel and thus waived any

challenge to this juror pursuant to State v. Rubio, 219 Ariz. 177, 195 P.3d 214 (App.

2008).

¶6            As we explained in Rubio, Rule 18.4(b), Ariz. R. Crim. P., contemplates

that an unqualified juror will be removed for cause either on a party‟s motion or on the

court‟s own initiative. 219 Ariz. 177, ¶¶ 9, 12, 195 P.3d at 217, 218. If an error occurs in

this process, a defendant must avail himself of the peremptory strikes provided by

Rule 18.4(c) “to assure the selection of a qualified and unbiased jury.” Rubio, 219 Ariz.

                                              3
177, ¶¶ 9, 12, 195 P.3d at 217, 218. Failure to exercise a peremptory strike on an

allegedly unqualified or biased juror waives any challenge to the juror on appeal. Id.

¶ 12.

¶7            Smith reads Rubio narrowly, interpreting its waiver rule to apply only when

there has been a denial of a motion to strike a juror for cause. Although Rubio involved

such a scenario, id. ¶ 4, its holding is not so limited. We properly characterized the issue

in that case as being “whether a defendant must either use an available peremptory strike

to cure the trial court‟s alleged error or waive the right to raise that error on appeal.” Id.

¶ 7. It makes no difference whether the alleged error is the court‟s denial of a motion to

strike or its failure to remove a particular juror sua sponte as required by Rule 18.4(b).

Rubio held that a defendant waives his previously voiced objection to a juror by failing to

remove that juror with a peremptory strike. 219 Ariz. 177, ¶ 12, 195 P.3d at 218. It

follows a fortiori that a defendant who both fails to object to a juror and fails to remove

that juror with a peremptory strike waives any challenge to the juror on appeal.

¶8            In any event, the record before us supports the trial court‟s implicit

determination that the juror could hear and understand the proceedings. After he had

been seated with the venire panel and had resolved his confusion about the prior

questions asked of other venire members, T. responded appropriately to all the questions

asked of him without need of repetition. Apart from a single request that the trial judge

speak more loudly, Smith points to nothing in the record suggesting T. had problems

hearing once he had been seated with the jury. Indeed, T.‟s request to the court suggests

that he would not hesitate to alert the court if he were unable to hear court proceedings.

                                              4
Thus, even assuming arguendo that the Rubio waiver rule does not apply here, Smith has

not demonstrated the trial court erred in deeming Juror T. to be capable and retaining him

for jury service. See State v. Diaz, 223 Ariz. 358, ¶ 11, 224 P.3d 174, 176 (2010)

(“Regardless of how an alleged error ultimately is characterized, . . . a defendant on

appeal must first establish that some error occurred.”).

                                       Jury Instruction

¶9               Smith next claims one of the jury instructions was erroneous because it

“blended the question whether Smith was under the influence with the question whether

he was impaired to the slightest degree,” thereby “eliminat[ing] the possibility that Smith

could have been under the influence while driving, but not impaired to the slightest

degree.”1 Reviewing the history of our DUI laws, Smith posits that “the only way to

understand the amendment adding „impaired to the slightest degree‟” in what is now

A.R.S. § 28-1381(A)(1) is that it added “an element that was not previously present.” “In

order to interpret „impaired to the slightest degree‟ in any meaningful way,” he

concludes, “it can only be that the phrase adds a requirement that „under the influence‟


       1
           The instruction challenged on appeal stated as follows:

                         “Under the influence of intoxicating liquor” means any
                 influence which tends to deprive the defendant of ordinary
                 clearness of intellect and self-control. The term covers any
                 influence of intoxicating liquor to the slightest degree,
                 including well-known and easily recognized conditions as
                 well as abnormal mental or physical conditions which may
                 result from consuming liquor. If the defendant‟s driving
                 ability has been lessened in the slightest degree by the use of
                 intoxicating liquors, then the defendant is deemed to be under
                 the influence of intoxicating liquor.
                                               5
does not already satisfy, either because it goes beyond what the supreme court held that

phrase to mean or because it requires that the phrase „under the influence‟ as having [sic]

a new meaning.” Smith does not specify further how being “under the influence” and

being “impaired to the slightest degree” are different.

¶10           In the absence of an objection to a jury instruction, we review only for

fundamental, prejudicial error. State v. Eddington, 226 Ariz. 72, ¶ 21, 244 P.3d 76, 83

(App. 2010), review granted (Ariz. Aug. 31, 2011). Novel assignments of error in this

context seldom warrant relief, id. ¶ 22, particularly when the argument urged on appeal is

primarily of academic interest. See id. ¶ 31. Such is the case here.

¶11           Assuming it is possible to be under the influence without also being

impaired to the slightest degree, it follows from Smith‟s own reasoning that a defendant

who is impaired to the slightest degree by alcohol is, at minimum, also under its

influence. The court‟s instruction here informed the jury that it had to find Smith

“impaired to the slightest degree” in order to find him guilty of aggravated DUI

predicated upon a violation of § 28-1381(A)(1).           Jurors are presumed to follow

instructions. State v. Newell, 212 Ariz. 389, ¶ 69, 132 P.3d 833, 847 (2006). Any

theoretical error in the challenged instruction, therefore, did not impact the verdict. And,

to the extent Smith maintains the court‟s instruction “did not correctly state the law”

because “the phrase „under the influence‟ . . . ha[s] a new meaning,” he has not

articulated what that meaning is and how the instruction misstated it. We therefore find

no basis to disturb the conviction. See State v. Diaz, 223 Ariz. 358, ¶ 11, 224 P.3d 174,



                                             6
176 (2010) (“Regardless of how an alleged error ultimately is characterized, . . . a

defendant on appeal must first establish that some error occurred.”).

                                         Probation

¶12           The state contends on appeal that the trial court erred in finding Smith

eligible for probation.    Although the court did not explain its reasoning for this

conclusion on the record, the state contends it was based on an erroneous determination

of how to count felony offenses for purposes of sentence enhancement. To address the

issue raised, we must determine the meaning and correct application of certain statutes,

which involves questions of law that we review de novo. See State ex rel. Romley v.

Hauser, 209 Ariz. 539, ¶ 4, 105 P.3d 1158, 1159 (2005); State v. Guillory, 199 Ariz. 462,

¶ 3, 18 P.3d 1261, 1263 (App. 2001). If the language of a statute is plain, “we must give

effect to that language and may not employ other means of statutory interpretation.”

State v. Viramontes, 204 Ariz. 360, ¶ 8, 64 P.3d 188, 189 (2003).

¶13           As it argued below, the state maintains Smith‟s sentence was governed by

A.R.S. § 13-703(A).2 That provision classifies as a “category one repetitive offender”

any person who “is convicted of two felony offenses that were not committed on the

same occasion but that either are consolidated for trial purposes or are not historical prior


       2
        Although § 13-703 was amended most recently the month Smith committed the
current offenses, see 2010 Ariz. Sess. Laws, ch. 194, §§ 2, 7, the amendment did not take
effect until after the date of the offenses. See Ariz. Const. art. IV, pt. 1, § 1(3) (laws
generally do not take effect until ninety days after close of legislative session). The prior
version of § 13-703, therefore, is applicable to this case. See 2008 Ariz. Sess. Laws,
ch. 301, § 28. Because the provisions we refer to are the same in relevant part, we cite to
the current version of the statute, except as otherwise indicated.

                                             7
felony convictions.” Id. A category one offender is not eligible for probation. See § 13-

703(O).

¶14              In the state‟s view, Smith “was „convicted of two felony offenses that were

not committed on the same occasion‟” by being convicted of aggravated DUI in the

present case and endangerment in 1999. § 13-703(A). These two offenses obviously

were not committed on the same occasion. And, the state maintains, neither can they be

considered “historical prior felony convictions,” id., because “[t]he aggravated DUI

convictions . . . are the current convictions” and the endangerment conviction is too

remote. See A.R.S. § 13-105(22)(c) (defining “[h]istorical prior felony conviction,” in

relevant part, to mean “[a]ny class 4, 5 or 6 felony . . . that was committed within the five

years immediately preceding the date of the present offense”).3 Thus, the state concludes,

Smith has two felony offenses under the narrowing criteria of § 13-703(A) and therefore

qualifies as a repetitive offender under that provision.

¶15              We agree with the state‟s reading of the statute. That provision plainly

articulates the two categories of felony convictions subject to inclusion and the number of

such felonies that trigger the enhancements required thereby. As the state correctly

observes, both Smith‟s remote, non-dangerous prior conviction and instant offense fall

within the categories of offenses expressly included therein. See Hauser, 209 Ariz. 539,




       3
           2008 Ariz. Sess. Laws, ch. 301, § 10.

                                               8
¶¶ 1, 4, 6, 9, 105 P.3d at 1159, 1160 (finding similarly phrased predecessor statute to

include remote, non-dangerous prior convictions).4

¶16           Here, an experienced trial judge rejected that construction of the statute

without explaining his reasoning. And, we are mindful of our duty to construe criminal

statutes “to promote justice and effect the objects of the law.” A.R.S. § 13-104. We

previously have recognized that the legislature has endeavored to create a “„carefully

structured statutory scheme‟” for criminal sentences. State v. Alvarez, 205 Ariz. 110,

¶ 11, 67 P.3d 706, 710 (App. 2003), quoting State v. Germain, 150 Ariz. 287, 290, 723

P.2d 105, 108 (App. 1986).

¶17           Generally, enhancement depends on the seriousness, age, and quantity of a

defendant‟s prior offenses, see Hauser, 209 Ariz. 539, ¶¶ 8, 23, 105 P.3d at 1160, 1162-

63, and, historically, the legislature does not count the current charge for enhancement

purposes outside the context of multiple pending charges. See State v. Thompson, 200

Ariz. 439, ¶ 6, 27 P.3d 796, 798 (2001) (recognizing enhancement for “„prior felony

conviction‟” means “the conviction on the prior offense must precede the conviction on

the present offense”); see also § 13-105(22)(c) (defining “„[h]istorical prior felony

conviction‟” as one committed before “present offense”). We do not overlook that the


      4
        Smith suggests Hauser no longer is controlling because it addressed the
predecessor statute to § 13-703(A) and the wording of the statute changed somewhat
between the two versions. Compare § 13-703(A), with 1999 Ariz. Sess. Laws, ch. 261,
§ 10 (former A.R.S. § 13-702.02(A)). But the operative language upon which Hauser
based its reasoning, the phrase “not historical prior felony convictions,” has remained
unaltered. And, Smith does not present a plausible alternate reading of that language to
support his suggestion that the legislature did not intend thereby to refer to remote, non-
dangerous prior felony convictions such as his 1999 conviction for endangerment.
                                            9
effect of § 13-703(A)—which requires two felony convictions for enhancement but

compels our courts to count the current offense as one of them—is to enhance Smith‟s

current offense with itself. See § 13-703(A) (enhancement proper when defendant “is

convicted” of two qualifying felonies). And because, by that formula, only one remote,

non-dangerous prior felony conviction is necessary to render a defendant ineligible for

probation when sentenced on any second felony offense, that statute deprives our trial

judges of the discretion to impose a term of probation in any such case—regardless of

how remote and mitigated the circumstances of the prior conviction, and regardless of

how mitigated the circumstances of the instant offense.

¶18           Thus, one might speculate that, in crafting a statute logically designed to

determine punishment for multiple contemporaneous convictions, the legislature

overlooked the implications of its language for those defendants like Smith having only

one remote, non-dangerous prior felony conviction. But, “„[w]e do not sit as a second

legislature to rewrite laws that may strike us as improvident.‟” State v. Gonzalez, 216

Ariz. 11, ¶ 9, 162 P.3d 650, 653 (App. 2007), quoting In re Pima Cnty. Juv. Appeal No.

74802-2, 164 Ariz. 25, 34, 790 P.2d 723, 732 (1990). “[A] statute‟s language is the most

reliable index of its meaning.” State v. Sepahi, 206 Ariz. 321, ¶ 16, 78 P.3d 732, 735

(2003). In the absence of any ambiguity or plausible contrary construction, we must

apply the plain meaning of the pertinent language. Viramontes, 204 Ariz. 360, ¶ 8, 64

P.3d at 189. Here, Smith has offered no plausible alternate construction of § 13-703(A).

We therefore conclude, as a matter of law, that Smith was ineligible for probation and the

trial court erred in suspending his sentence.

                                                10
                                       Disposition

¶19           For the foregoing reasons, Smith‟s convictions are affirmed. However, for

the reasons set forth above, we vacate the probationary term and remand this matter to the

trial court for resentencing.


                                             /s/ Peter J. Eckerstrom
                                             PETER J. ECKERSTROM, Presiding Judge

CONCURRING:


/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge


/s/ J. William Brammer, Jr.
J. WILLIAM BRAMMER, JR., Judge




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