                         NOTICE: NOT FOR PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    JEFFREY ALLEN WIGGS, Appellant.

                             No. 1 CA-CR 14-0294
                               FILED 3-31-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-002728-001
                The Honorable Jerry B. Bernstein, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant

Jeffrey Allen Wiggs, Buckeye
Appellant
                             STATE v. WIGGS
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Patricia K. Norris and Judge John C. Gemmill joined.


W I N T H R O P, Judge:

¶1              Jeffrey Allen Wiggs (“Appellant”) appeals his convictions
and sentences for two counts of aggravated driving or actual physical
control while under the influence of intoxicating liquor or drugs, a class
four felony. Appellant’s counsel has filed a brief in accordance with Smith
v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and
State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched
the record on appeal and found no question of law that is not frivolous.
Appellant’s counsel therefore requests that we review the record for
fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96
(App. 1999) (stating that this court reviews the entire record for reversible
error). This court allowed Appellant to file a supplemental brief in propria
persona, and Appellant has filed two supplemental briefs.

¶2             We have appellate jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1), 13-4031, and 13-4033(A).1 Finding no reversible
error, we affirm.

                FACTS AND PROCEDURAL HISTORY2

¶3           On July 22, 2013, the State charged Appellant by indictment
with two counts of aggravated driving under the influence, a class four
felony. The State further alleged that Appellant had six historical prior
felony convictions.



1     We cite the current Westlaw version of the applicable statutes
because no revisions material to this decision have since occurred.

2     We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Appellant. See State v. Kiper,
181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).



                                      2
                            STATE v. WIGGS
                           Decision of the Court

¶4            At trial, the State presented the following evidence: While
driving home from work on May 7, 2013, a witness heard a “crashing
noise,” and observed a white car had just been in an accident. The witness
called 911 and exited his vehicle to assist the white car. Appellant, the sole
occupant of the white car, exited the car, walked around it, and then
attempted to re-start the vehicle. The witness told Appellant that he had
contacted emergency services, and Appellant immediately turned and ran
towards an apartment complex adjacent to the scene of the accident.

¶5            The witness provided a description of Appellant to the 911
operator. Officers with the Chandler Police Department responded to the
scene and determined the registered owner of the vehicle was Ruth Wiggs,
with a registered address at the neighboring apartment complex. The
officers walked to the registered address, knocked on the door, and
Appellant answered. Appellant matched the description of the driver, but
denied driving the vehicle, which was registered to his mother. Appellant
asserted his mother’s car was parked in the nearby parking lot. The officers
and Appellant walked to the parking lot and determined the vehicle was
not there. An officer observed Appellant’s eyes were “extremely bloodshot
and watery” and Appellant smelled of alcohol. The officers asked
Appellant if the keys to his mother’s vehicle were in his pockets, and
Appellant removed a set of keys, explaining that the keys were “just his
house keys.”

¶6             The officers decided to conduct field sobriety tests on
Appellant. Before beginning the tests, the officers noticed Appellant’s
glasses were missing a lens. During the horizontal gaze nystagmus field
sobriety test, the officers observed all six cues of impairment. In addition,
while attempting and failing to properly conduct the “walk-and-turn” test,
Appellant stated he would not be able to complete the test. The officers
arrested Appellant. Using the keys located in Appellant’s pocket, the
officers unlocked and started the white car. In addition, a search of the car
revealed a single glasses’ lens located on the floor on the driver’s side. The
officers transported Appellant to a nearby hospital where a blood test
revealed Appellant’s blood alcohol level was .206. Appellant did not testify
at trial.

¶7            The jury found Appellant guilty of both counts of aggravated
driving under the influence. At sentencing, Appellant admitted having two
historical prior felony convictions. For both counts, the trial court
sentenced Appellant to presumptive, concurrent terms of 10 years’
imprisonment in the Arizona Department of Corrections, with credit for 29



                                      3
                             STATE v. WIGGS
                            Decision of the Court

days of pre-sentence incarceration.        Appellant filed a timely notice of
appeal.

                                 ANALYSIS

¶8           Appellant raises several arguments in his supplemental
briefs. We address each in turn.

              I.     Voir Dire

¶9              Appellant contends the trial court erred when it failed to
strike a prospective juror. Because Appellant did not object during voir
dire, we review for fundamental error. State v. Henderson, 210 Ariz. 561,
567, ¶ 19, 115 P.3d 601, 607 (2005). During voir dire, the trial court asked
the prospective jurors if any knew the county attorney or any member of
the county attorney’s staff, to which Juror 16 responded affirmatively. The
juror revealed his relationship to two family members, one who worked at
the Public Defender’s office, and one who worked as a superior court
commissioner. In addition, he had a family member who was a retired
member of the attorney general’s office in California. The trial court then
asked the juror if “anything about those relationships [would] affect [his]
ability to be fair and impartial,” to which the juror responded no. The juror
again notified the court when it asked if any potential juror had relatives
that practiced law. Juror 16 was subsequently selected for the jury panel.

¶10            It is in the trial judge’s discretion to determine the method and
scope of voir dire. State v. Canez, 202 Ariz. 133, 148, ¶ 37, 42 P.3d 564, 579
(2002) (internal citation omitted). Moreover, unless it can be demonstrated
that a jury of fair and impartial jurors was not selected, this court will not
disturb the trial court’s selection of the jury. Id. Based on the record before
us, we see no error, let alone fundamental error. Nothing in the record
indicates Juror 16’s presence as a member of the jury in any way harmed or
prejudiced Appellant. The voir dire process and ultimate impaneling of
Juror 16 did not deprive Appellant of a fair trial.

              II.    Exhibit 3 – Forensic Examination Report

¶11            Appellant alleges the trial court “abused [its] discretion in not
calling a mistrial” when it admitted a forensic examination report over the
objection of Appellant’s counsel. We disagree. “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(a) and (b). Relevant evidence is admissible
unless it violates applicable statutes, rules, the Arizona Constitution, or the


                                       4
                             STATE v. WIGGS
                            Decision of the Court

United States Constitution. Ariz. R. Evid. 402. Here, the forensic
examination report documents Appellant’s blood alcohol concentration,
which relates directly to the crux of the charges against him. Moreover, the
criminalist who performed the blood alcohol analysis testified at trial and
authenticated the report in accordance with Arizona Rules of Evidence 901.
Accordingly, the trial court did not err in admitting the forensic
examination report.

¶12           Appellant further argues the admission of this report
constitutes prosecutorial misconduct because Appellant “would have
argued [his] case different[ly].” To prevail on a claim of prosecutorial
misconduct, “[a] defendant must demonstrate that the prosecutor’s
misconduct so infected the trial with unfairness as to make the resulting
conviction a denial of due process.” State v. Roque, 213 Ariz. 193, 228, ¶ 152,
141 P.3d 368, 403 (2006). Appellant fails to articulate any examples of how
his potential defense strategy was hindered based on the admission of the
report. In addition, Appellant does not demonstrate how the admission of
the report resulted in any prejudice or a denial of his due process rights.
Therefore, Appellant’s claim of prosecutorial misconduct fails.

              III.    In-Court Identification

¶13           Appellant argues the trial court abused its discretion when it
allowed a witness to make an in-court identification of Appellant, alleging
the in-court identification was “tainted.” Normally this court reviews a
challenged identification for a clear abuse of discretion, however, because
Appellant failed to object at trial, we review for fundamental error. See State
v. Leyvas, 221 Ariz. 181, 184, ¶ 9, 211 P.3d 1165, 1168 (App. 2009); see also
Henderson, 210 Ariz. at 567, ¶ 19, 115 P.3d at 607. In this case, the witness
did not make a pre-trial identification of Appellant, however, during trial,
the witness identified Appellant as the driver of the vehicle. Appellant
contends that testimony by a police officer, stating the witness told that
officer he would not recognize the suspect’s face, demonstrates that the
witness was lying when the witness made the in-court identification. We
see no error by the trial court in allowing the witness to make an in-court
identification of Appellant.          Appellant’s counsel highlighted the
contradictory statements made by the police officer and the witness during
closing arguments, and the jury was free to believe whichever witness they
chose. See State v. Harrison, 111 Ariz. 508, 509, 533 P.2d 1143, 1144 (1975)
(citation omitted) (stating the credibility of witnesses is a matter for the jury
to decide). Based on the record before this court, we cannot say the trial
court erred in allowing the in-court identification.



                                        5
                            STATE v. WIGGS
                           Decision of the Court

¶14           Appellant further argues the in-court identification
constituted prosecutorial misconduct because the State “knew the witness
was testifying falsely” and the State “should have brought [this] to the Trial
Judge[’s] attention.” We find these arguments unpersuasive. There is
nothing in the record to indicate the prosecutor acted inappropriately or
denied Appellant his constitutional rights. Accordingly, this argument also
fails.

              IV.    Car Keys

¶15           Appellant alleges the trial court abused its discretion when it
allowed the officers’ to testify about the car keys taken from Appellant, but
failed to admit the keys into evidence. The State is not required to introduce
all evidence so long as material evidence has been presented to the court
that “bear[s] upon the charge for which the defendant is on trial.” State v.
Maloney, 105 Ariz. 348, 354, 464 P.2d 793, 799 (1970) (citation omitted). The
relevant evidence here is the officer’s testimony that Appellant had the keys
to the white car in his possession immediately following the accident, not
the car keys themselves. Moreover, irrelevant evidence is inadmissible.
Ariz. R. Evid. 402. The State was not required to seek admission of the car
keys, and the trial court did not err when it did not admit the keys into
evidence.

              V.     Witness Testimony

¶16           Appellant argues the State’s key witness gave two
inconsistent statements during trial, constituting perjury. The testimony is
as follows:

              Q. [The Prosecutor]: -- [do you remember] what
              that description was, more or less?

              A. [The Witness]: I told them it was an African-
              American male between the ages of 35 - - or late
              30s to mid 40s, bald, wearing glasses, gray shirt,
              black and white shorts.

                     THE COURT: Once again, a little slower.

              Q. [The Prosecutor]: [The Court Reporter] has
              to record everything.

              A. [The Witness] I’m sorry.




                                      6
                             STATE v. WIGGS
                            Decision of the Court

              Q. That’s okay. No problem.

              A. Do I need to back up?

              Q. One more time, a little slower, if you don’t
              mind, please.

              A. Okay, so when the officer got there, I gave
              him the description of an African-American
              male between the ages of late 30s to mid 40s,
              wearing a gray shirt, plaid shorts, bald, and
              wearing glasses.

¶17              These statements, while not identical, do not amount to
perjury. In addition, as previously addressed, the jury was free to weigh
the witness’ credibility based on the slight differences in this testimony. See
Harrison at 509, 533 P.2d at 1144. We see no error in admitting these
statements and the fact that the trial court did so did not deprive Appellant
of a fair trial.

              VI.    Other Issues

¶18          We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537,
¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and
supports the verdict, and the sentence was within the statutory limits.
Appellant was represented by counsel at all stages of the proceedings and
was given the opportunity to speak at sentencing. The proceedings were
conducted in compliance with his constitutional and statutory rights and
the Arizona Rules of Criminal Procedure.

¶19            After filing of this decision, defense counsel’s obligations
pertaining to Appellant’s representation in this appeal have ended.
Counsel need do no more than inform Appellant of the status of the appeal
and of his future options, unless counsel’s review reveals an issue
appropriate for petition for review to the Arizona Supreme Court. See State
v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has
thirty days from the date of this decision to proceed, if he desires, with a pro
per motion for reconsideration or petition for review.




                                       7
                   STATE v. WIGGS
                  Decision of the Court

                     CONCLUSION

¶20   Appellant’s convictions and sentences are affirmed.




                         :ama




                            8
