                                IN THE COURT OF APPEALS
                                    STATE OF ARIZONA
                                      DIVISION TWO


THE STATE OF ARIZONA,                              )
                                                   )           2 CA-CR 2001-0445
                                     Appellee,     )           DEPARTMENT B
                                                   )
                      v.                           )           OPINION
                                                   )
DANIEL HERIBERTO RIVERA,                           )
                                                   )
                                    Appellant.     )
                                                   )


               APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                    Cause No. CR-20011419

                              Honorable Patricia G. Escher, Judge
                              Honorable Howard Hantman, Judge

                                           AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Consuelo M. Ohanesian                                            Phoenix
                                                                           Attorneys for Appellee

Susan A. Kettlewell, Pima County Public Defender
 By John F. Palumbo                                                                       Tucson
                                                                           Attorneys for Appellant


E S P I N O S A, Chief Judge.


¶1             Appellant Daniel Heriberto Rivera was convicted after a jury trial of driving while

under the influence of an intoxicant (DUI) with a minor present; aggravated driving with a blood

alcohol concentration of .10 or greater with a suspended, revoked, or restricted license; aggravated
driving with a blood alcohol concentration of .10 or greater with two or more prior DUI

convictions; and two counts of endangerment.1 The trial court suspended imposition of sentence

and placed Rivera on concurrent, three-year terms of probation for each conviction. On appeal,

he challenges the three DUI-based convictions, contending the state violated his due process rights

by trying him both on the theory that he had been the driver and on the alternative theory that he

had been a passenger in temporary but actual control of the vehicle, when the grand jury had

indicted him only on the former theory. We affirm.

                                                I.

¶2             The evidence, viewed in the light most favorable to supporting the verdicts, State

v. Nihiser, 191 Ariz. 199, 953 P.2d 1252 (App. 1997), revealed the following. Shortly after

midnight on April 7, 2001, Rivera fled on foot from a car that had come to rest after veering off

the road and onto a raised median. The accident damaged the car, uprooted a traffic sign, and

showered debris onto oncoming traffic. A civilian stopped to assist and encountered Rivera’s

girlfriend, E., and her eight-year-old daughter, A. E. told the civilian she had not been driving.

When police officers arrived, E. told Deputy Krygier that Rivera, her live-in boyfriend, had been

driving the car after they had left a bowling alley where he had been drinking beer. She gave the

deputy their nearby home address, and officers found Rivera there a short time later. He admitted

he had been in an accident but stated, “You guys can’t prove I was driving.” Rivera was arrested

for DUI, and his blood was drawn at 1:35 a.m., a sample of which was later shown to have an




       1
       The statute was later amended to reduce the legal blood alcohol concentration to under .08.
A.R.S. § 1381(A)(2); 2001 Ariz. Sess. Laws, ch. 95, § 5.

                                                2
alcohol concentration of .161. Rivera’s driver’s license was revoked at that time, and he had

previously been convicted of two other DUI offenses committed in 1997 and 1998.

¶3             One of the responding officers relayed a condensed version of the foregoing

evidence to the grand jury on April 13, 2001. Although the evidence presented to the grand jury

identified Rivera as being the driver, the pertinent counts of the indictment alleged that he “drove

or was in actual physical control of [the] vehicle” (emphasis added). This language mirrored the

DUI statute on which those charges were based, A.R.S. § 28-1381(A), which provides, “It is

unlawful for a person to drive or be in actual physical control of a vehicle in this state under any

of the following circumstances . . . .” (Emphasis added).

¶4             Subsequently, in a letter he apparently received on July 16, Rivera’s counsel learned

that E. was claiming that she, not Rivera, had been driving the car at the time of the incident.2

Based on that letter, counsel filed a motion dated August 10 to dismiss the case for lack of probable

cause to arrest Rivera. The trial court denied the motion after a hearing on August 27 at which

E. testified that she had been driving and that Rivera had caused the accident by grabbing the

steering wheel.

¶5             Anticipating a discrepancy in trial testimony over who had been driving, the state

interviewed A. for the first time on the afternoon of August 29, the day before trial, and learned

that she, too, would testify that E. had been driving, rather than Rivera. On August 30, as trial

was about to begin, the state announced that it was proceeding on two alternative theories: either

that Rivera had been the driver or that he had been in actual physical control when his actions as


       2
       The record is conflicting as to whether defense counsel received the letter on July 16 or
whether the letter was dated July 16 and he learned of it sometime before August 10.

                                                 3
a passenger caused the accident. Rivera moved on due process grounds to preclude any theory

of prosecution not presented to the grand jury. The trial court denied the motion.

¶6             At trial, both E. and A. testified that E. had been driving when they left the bowling

alley; that, after arguing with E., Rivera had ordered her to pull over; and that Rivera had grabbed

the steering wheel just before the accident. Their testimony was inconsistent with that of the

civilian witness who had stopped to assist, who reported that E. had denied being the driver, and

of Deputy Krygier, who testified that E. had twice told him that Rivera had been driving. The

state argued to the jury that it could find Rivera guilty on the theory that he had been the driver

or, if it believed E. had been driving, it could find Rivera guilty on the theory of actual physical

control. The jury returned a unanimous verdict of guilty on all counts, but the form of verdict did

not reveal whether the jurors had determined who had been behind the wheel.

                                                II.

¶7             Rivera argues his due process rights under the federal and state constitutions were

violated because his DUI-based convictions may have been for crimes for which he was not

indicted. Although we generally review a trial court’s ruling on a motion to dismiss the indictment

for an abuse of discretion, we review Rivera’s due process claims de novo. State v. Rosengren,

199 Ariz. 112, 14 P.3d 303 (App. 2000); see also In re U. S. Currency of $315,900.00, 183

Ariz. 208, 902 P.2d 351 (App. 1995) (constitutional questions reviewed de novo).

¶8             It is axiomatic that “[c]onviction upon a charge not made would be sheer denial of

due process.” DeJonge v. Oregon, 299 U.S. 353, 362, 57 S. Ct. 255, 259, 81 L. Ed. 278, 282

(1937). Article II, § 24 of the Arizona Constitution establishes that “[i]n criminal prosecutions,

the accused shall have the right to . . . demand the nature and cause of the accusation against him,

                                                 4
[and] to have a copy thereof.” The Sixth Amendment to the United States Constitution provides

an equivalent right. However, we do not find that any of these constitutional protections were

denied Rivera. Evidence both before the grand jury and at trial established that he had either

driven or been in actual physical control of the car, which, we conclude, are two ways of

committing a single DUI offense.

¶9             As previously stated, § 28-1381(A) provides: “It is unlawful for a person to drive

or be in actual physical control of a vehicle in this state under any of the following

circumstances . . . .” The phrase “actual physical control” has never been defined in Arizona’s

DUI statutes, State v. Dawley, 201 Ariz. 285, ¶3, 34 P.3d 394, ¶3 (App. 2001), but it has been

the focus of an evolving series of court decisions. See State v. Love, 182 Ariz. 324, 897 P.2d 626

(1995); State v. Zavala, 136 Ariz. 356, 666 P.2d 456 (1983); State v. Webb, 78 Ariz. 8, 274

P.2d 338 (1954); Potter v. Ariz. Dep’t of Transp., 204 Ariz. 73, 59 P.3d 837 (App. 2002);

Dawley. Love, Zavala, Webb, and Potter addressed factual situations in which persons found in

parked vehicles could possibly be guilty of DUI by remaining in actual physical control. Dawley

presented a slightly different scenario, in which a person was found behind the driver’s seat of a

vehicle he contended was mechanically inoperable.3 These cases broadly demonstrate that by

including “actual physical control,” the legislature intended to extend the DUI statutes to encompass

those situations in which a person who is not actually driving nonetheless poses an equivalent risk.

See Love, 182 Ariz. at 327, 897 P.2d at 629 (factfinder should “weigh the myriad of




       3
        At issue in Dawley was a jury instruction patterned on Zavala and Love; Dawley
presented a previously unconsidered fact pattern and illustrated the pitfalls of defining actual
physical control based on case law arising from different facts. Dawley.

                                                 5
circumstances” in each case to determine whether defendant “presented a danger to himself or

others”); Webb, 78 Ariz. at 11, 274 P.2d at 339 (purpose of “actual physical control” provision

is to “enable the drunken driver to be apprehended before he strikes”); Dawley, 201 Ariz. 285,

¶9, 34 P.3d 394, ¶9 (defendant had actual physical control if “potential use of the vehicle presented

a real danger to himself or others”).

¶10            By speaking in Dawley of driving and actual physical control as alternative

“theor[ies] of culpability,” we did not mean to suggest that each was an independent crime.

Dawley, 201 Ariz. 285, ¶10, 34 P.3d 394, ¶10. Were that true, any person guilty of driving

under the influence under typical circumstances would also necessarily be guilty of a second

offense—being in actual physical control in the moments before starting the ignition and beginning

to drive. This absurd result is avoided if “driving” and “actual physical control” are understood

to be alternative (and not mutually exclusive) ways of violating the DUI laws by either driving or

non-driving behavior. State ex rel. O’Neill v. Brown, 182 Ariz. 525, 527, 898 P.2d 474, 476

(1995) (each DUI offense “may be committed in two separate ways,” either by driving or actual

physical control). We find it instructive that driving and actual physical control appear together

in the same sentence rather than in separately numbered subsections. Cf. State v. Sanders, 205

Ariz. 208, 68 P.3d 434 (App. 2003) (due process violated when trial court permitted mid-trial

amendment of indictment charging aggravated assault based on A.R.S. § 13-1203(A)(3),

knowingly touching victim, to § 13-1203(A)(2), placing victim in apprehension of injury).

¶11            Of course, a person who drives a vehicle actually physically controls it; driving is

a subset of actual physical control. See Brown, 182 Ariz. at 527, 898 P.2d at 476 (“‘actual

physical control’ portion is broader” than driving portion of statute). Presumably for that reason,

                                                 6
the aforementioned Arizona cases discussing actual physical control have involved conduct other

than driving. Although § 28-1381(A) is written in the disjunctive, this case illustrates the peril of

treating driving and actual physical control as two offenses rather than as two ways of committing

a single offense. In the absence of a jury instruction defining driving, the act E.’s and A.’s

testimony described—a passenger’s grabbing the steering wheel of a moving car and causing it to

jump onto the median—is conduct that arguably could or could not constitute driving.4 However,

at a minimum, as discussed in paragraph 16, infra, it certainly constituted evidence of actual

physical control.

                                                III.

¶12            Due process requires that a defendant be given “‘notice of the specific charge, and

a chance to be heard in a trial of the issues raised by that charge.’” State v. Blakley, 204 Ariz.

429, ¶47, 65 P.3d 77, ¶47 (2003), quoting Cole v. Arkansas, 333 U.S. 196, 201, 68 S. Ct. 514,

517, 92 L. Ed. 644, 647 (1948). The indictment itself need not inform the defendant of the theory

by which the state intends to prove that charge so long as the defendant receives sufficient notice

to reasonably rebut the allegation. State v. Arnett, 158 Ariz. 15, 760 P.2d 1064 (1988) (in

prosecution for first-degree murder, defendant given adequate notice when he learned on first day

of trial that state would proceed on both premeditated and felony murder theories); cf. Blakley, 204

Ariz. 429, ¶¶ 53-56, 65 P.3d 77, ¶¶ 53-56 (defendant, indicted for first-degree murder on felony

murder theory based on predicate felony of sexual assault, denied constitutionally required notice




       4
         Under other hypothetical situations, such as that suggested by the state below in closing
argument—a passenger steering a moving car consensually while the driver changes a sweater—the
distinction between driving and actual physical control would be even more blurred.

                                                 7
when state waited until eve of closing argument to announce it was basing felony murder theory

on predicate felony of child abuse). The jury need not unanimously agree on a theory so long as

it unanimously agrees on a verdict. Schad v. Arizona, 501 U.S. 624, 111 S. Ct. 2491, 115 L.

Ed. 2d 555 (1991); State v. Salazar, 173 Ariz. 399, 844 P.2d 566 (1992).

¶13            Here, after hearing evidence that E. had said Rivera was driving, the grand jury

indicted him on three, DUI-based charges, each citing § 28-1381 and accusing him of having been

driving or in actual physical control. At trial, the state presented evidence that E. had initially

identified Rivera as the driver, as well as the testimony of E. and A. that Rivera had been a

passenger but had taken actual physical control when he grabbed the steering wheel from the

passenger seat and caused the car to crash. Although E.’s and A.’s alternate version of the facts

had only come to light after the grand jury hearing, Rivera had sufficient notice of the latter theory.

Counsel had been aware at least twenty days before trial that E. was claiming she had been the

driver, he had been aware at least three days before trial that the state would be pursuing an

alternative theory of actual physical control, and he had been informed the day before trial that A.

would testify consistently with E.

¶14            We find this case distinguishable from Rivera’s primary authorities, State v. Martin,

139 Ariz. 466, 679 P.2d 489 (1984), and State v. Mikels, 119 Ariz. 561, 582 P.2d 651 (App.

1978). In Mikels, the grand jury indicted the defendant for an act of sodomy which took place in

a shower stall. The trial evidence showed instead, and the prosecutor argued to the jury, that the

defendant committed an act of sodomy in a different location at least twelve days later than the

shower stall incident alleged in the indictment. This court vacated the judgment, finding “that

appellant was not convicted of the crime for which he was indicted.” Mikels, 119 Ariz. at 563,

                                                  8
582 P.2d at 653. Similarly, in State v. Johnson, 198 Ariz. 245, 8 P.3d 1159 (App. 2000), this

court vacated convictions for sexual conduct with a minor and child molestation when the trial

testimony showed entirely different sexual acts than those specified in the charging document and

the trial court permitted the state to amend the information to conform to that evidence. Here,

Rivera was indicted for, tried for, and convicted of one discrete crime occurring at a distinct time

and place, not distinct different crimes that could have been independently prosecuted as in Mikels

and Johnson.

¶15            In Martin, the indictment charged the defendant and a codefendant with selling

narcotics to a third person. The prosecution’s theory of the case shifted at trial to reflect the

evidence, which showed only that the two defendants had engaged in narcotics transactions with

each other. Our supreme court reversed, finding the defendant had not received adequate notice

of this construction of the indictment, which he could not have foreseen. Martin. Here, in

contrast, Rivera had ample notice that A. and E. planned to testify that E. had been driving and

that the state would expand its theory of prosecution to include that scenario.

                                                 IV.

¶16            Finally, we reject Rivera’s suggestion that the behavior ascribed to him by A. and

E. did not constitute actual physical control for the purposes of Arizona’s DUI statutes. His

argument is based in large part on the “actual physical control” jury instruction we articulated in

Dawley: that the defendant there “was in ‘actual physical control’ of the vehicle if, based on the

totality of the circumstances shown by the evidence, his potential use of the vehicle presented a real

danger to himself or others.” Dawley, 201 Ariz. 285, ¶9, 34 P.3d 394, ¶9. We proffered this

instruction as one that would be acceptable for the facts presented in Dawley, not as an all-

                                                  9
encompassing legal definition of actual physical control appropriate to all fact patterns. See

footnote 1, supra. In light of the purpose of the actual physical control provision, however, we

conclude that, a passenger who grabs the steering wheel of a moving car and alters the car’s

movement has assumed actual physical control for purposes of the DUI statutes. See Atkinson v.

State, 627 A.2d 1019, 1027 (Md. 1993) (similar “actual physical control” provision encompasses

“directing influence” on a vehicle); State v. Ruona, 321 P.2d 615, 618 (Mont. 1958) (same);

Parker v. State, 424 P.2d 997, 1000 (Okla. Crim. App. 1967) (same); see also United States Fid.

& Guar. Co. v. Hokanson, 584 P.2d 1264, 1267 (Kan. Ct. App. 1978) (where accident resulted

from front-seat passenger’s suddenly pulling on steering wheel, causing driver to lose control of

vehicle, “[b]y grabbing the wheel and exerting a force on it, [the passenger] obtained control of

the vehicle, even though for only an instant”).

¶17            We affirm the judgments of conviction and the probationary terms imposed.




                                                  PHILIP G. ESPINOSA, Chief Judge

CONCURRING:




JOHN PELANDER, Presiding Judge




PETER J. ECKERSTROM, Judge




                                                  10
