State v. Mowers

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

NORA COLEEN MOWERS, Appellant.

No. 1 CA-CR 19-0431
FILED 4-8-2021

Appeal from the Superior Court in Maricopa County
No. CR2015-125783-001
The Honorable Julie A. LaFave, Judge Pro Tempore

VACATED AND REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael F. Valenzuela
Counsel for Appellee

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

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which Presiding
Judge Jennifer M. Perkins and Judge Michael J. Brown joined.

G A S S, Judge:

¶1 Nora Coleen Mowers appeals her convictions for aggravated
driving under the influence (DUI). Mowers correctly argues the superior
court improperly allowed the results of a breathalyzer test into evidence.
Because the State did not meet its burden of showing the error was
harmless, we vacate both convictions and remand for further proceedings.

FACTUAL AND PROCEDURAL HISTORY

¶2 In June 2015, Officer Timothy Mazich responded to a two-
vehicle collision in Phoenix. When Mazich arrived, he found B.S. “standing
right at the accident scene in the roadway by the two vehicles.” After asking
B.S. to identify the driver of each vehicle, Mazich spoke to Mowers, who
was standing near a retaining wall on the side of the road. Mowers said she
was driving out of “the Walmart parking lot to make a left turn [when] she
was struck by a vehicle that was coming northbound.” Mazich also spoke
with D.M., the second driver. The physical evidence and D.M.’s explanation
of the accident corroborated Mowers’s version of the events.

¶3 Mazich then asked Mowers for her driver’s license. Mowers
initially said her license was in the vehicle and provided Mazich with her
name and date of birth. Mazich performed a record check but could not
locate a valid driver’s license matching the information Mowers provided.
After several additional attempts to verify the information, Mazich asked
Mowers “to be honest” with him. Mowers then said her driver’s license
“had been revoked.”

¶4 As Mazich approached Mowers to place her under arrest, he
“smelled an odor of alcohol coming from her breath.” Mazich asked
Mowers if she had been drinking, and she admitted to drinking four beers.
Mazich then called Officer Florin Bohatir to assist with a DUI investigation.
Bohatir also noted the smell of alcohol coming from Mowers and asked if
she would consent to a field sobriety test. Though Mowers agreed, she

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appeared to have injured her ankle in the collision, making her a “medical
rule-out.” Bohatir, therefore, performed a horizontal gaze nystagmus
(HGN) test instead of the standard field sobriety tests. HGN is a
neurological dysfunction causing involuntary twitching of the eye and can
be caused by alcohol consumption. Mowers demonstrated six cues during
the test, indicating a BAC greater than 0.08. Bohatir then arrested Mowers
and transported her to a police substation for DUI processing.

¶5 At the substation, Mowers consented to an alcohol-breath test
conducted by Officer Michael Chase. Chase began by asking Mowers a few
biographical questions and explaining her Miranda rights. See Miranda v.
Arizona, 384 U.S. 436 (1966). Throughout Chase’s interaction with Mowers,
he noted her “eyes were watery and bloodshot” and she smelled of alcohol.
Chase performed two statutorily-required, alcohol-breath tests on Mowers
using an Intoxilyzer 8000. See A.R.S. § 28-1323.A.3. The first test showed
Mowers’s BAC was 0.221, the second showed a result of 0.215.

¶6 The State charged Mowers with driving while under the
influence of an intoxicating liquor and impaired to the slightest degree (the
impaired charge) and driving with a blood-alcohol concentration (BAC)
above 0.08 (the BAC charge). See A.R.S. § 28-1381.A.1–.2. The State also
alleged Mowers committed the offenses while her “privilege to drive [was]
suspended, canceled, revoked or refused.” See A.R.S. § 28-1383.A.1.

¶7 On the first day of trial, the State called Chase to testify about
Mowers’s breath-test results. Chase described his training and experience,
including his certification to operate an Intoxilyzer 8000. He explained how
“the machine checks itself” with a known substance and does “a couple air
blanks to make sure everything’s flushed out” before and after each subject
test “[t]o make sure it’s a fair and accurate test.” When the test is complete,
the Intoxilyzer 8000 prints two copies of a “ticker tape” showing the results
of the self-check and subject tests along with a notification of whether the
tests were successfully completed. Chase then told the jury the procedure
he followed when administering the test to Mowers, including the use of
an approved operational checklist. Chase never said whether the machine
completed the self-check or displayed the successful completion message.

¶8 To lay foundation for Mowers’s breath-test results, the State
showed Chase two exhibits. The first (Exhibit 4) was a photocopy of the
Intoxilyzer 8000 “ticker tape” printout from Mowers’s breath tests. Because
Exhibit 4 was largely illegible, the State next showed Chase Exhibit 5, a later
“reprint” showing Mowers’s breath-test results and the machine’s self-

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calibration checks. When the State asked Chase for the specific results
shown on Exhibit 5, Mowers objected.

¶9 Mowers argued Exhibit 5 lacked the statutorily-required
certification language, making it inadmissible. See A.R.S. § 28-1327.B.
Without Exhibit 5, Mowers argued, the State had not met the foundational
requirements to admit her breath-test results. See A.R.S. § 28-1323.A. The
superior court sustained Mowers’s objection but said the State could use
Exhibit 5 to refresh Chase’s recollection. Without attempting to refresh
Chase’s recollection, the State asked him for the breath-test results, and he
answered.

¶10 After the superior court excused the jury for the day, Mowers
renewed her objection to Chase’s testimony about the breath-test results.
Specifically, she argued the exclusion of Exhibit 5 meant the State had no
proof the machine used in her test was operating correctly and “it was
improper for [Chase] to talk about the results before all of [the foundational
requirements] have been met.” Further, “because the results [had] been
improperly admitted,” Mowers moved for a mistrial.

¶11 The superior court denied the motion, specifically finding
“the State has met the requirements of 28-1323 for the purpose of the
testimony regarding the results all the way, 1 through 5.” Accordingly,
Chase could testify about the breath-test results, but Exhibit 5 would “not
be sent to the jury” unless the State provided “the appropriate certification
under [§ 28-]1327.” The State never provided the certification.

¶12 The following day, the State called Donald Stenberg, a
toxicologist with the Phoenix Crime Lab. Stenberg said the crime lab is
responsible for maintaining the Intoxilyzer 8000 machines. When asked
how often the machines are checked, he said: “There’s -- I believe I said it’s
a 30- to 31-day check. So, if it’s not checked every 31 days, the instrument
will lock out. There’s also a 90-day check that’s supposed to be done on it
as well.” Later, when asked about the Intoxilyzer 8000’s calibration and
potential margin of error, Stenberg responded: “That’s something that
you’d have to ask the people who calibrate the instrument. That’s not me.”
Stenberg never discussed the maintenance or calibration of the specific
Intoxilyzer 8000 used to test Mowers.

¶13 At the conclusion of the State’s case-in-chief, Mowers moved
for acquittal under Rule 20 of the Arizona Rules of Criminal Procedure. The
superior court denied the motion, and the jury found Mowers guilty on
both counts. Mowers then filed a renewed Rule 20 motion. Following

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arguments, the superior court again denied Mowers’s motion. The superior
court sentenced Mowers to concurrent four-month terms of imprisonment
for each count, with one-day presentence incarceration credit, and two-
years’ supervised probation following her release from prison.

¶14 Mowers timely appealed. This court has jurisdiction under
article VI, section 9, of the Arizona Constitution, A.R.S. §§ 13-4031, and 13-
4033.A.1.

ANALYSIS

I. The superior court abused its discretion when it allowed Chase to
testify about the breath-test results.

¶15 Mowers argues the superior court abused its discretion by
allowing Chase to testify about her breath-test results when the State had
not met the statutory foundational requirements. Specifically, Mowers
argues the superior court erred in admitting the test results because the
State failed to establish the Intoxilyzer 8000 “used to conduct [her] test was
in proper operating condition.” See A.R.S. § 28-1323.A.5. We agree.

¶16 This court analyzes statutory requirements de novo but
reviews the facts established at trial in the light most favorable to sustaining
the verdicts. State v. Cope, 241 Ariz. 323, 324, ¶ 5 (App. 2016); State v. Felix,
237 Ariz. 280, 283, ¶ 2 (App. 2015). A superior court abuses its discretion
when its reasoning is legally incorrect, clearly untenable, or otherwise a
denial of justice. State v. Penney, 229 Ariz. 32, 34, ¶ 8 (App. 2012).

¶17 “A proponent of a breath test . . . can offer the test into
evidence by utilizing either the statutory method, established in section 28-
[1323] or the rules of evidence method, governed primarily by Rule 702,
Arizona Rules of Evidence.” State ex rel. McDougall v. Johnson, 181 Ariz. 404,
407 (App. 1994) (citing the predecessor statute to § 28-1323). When a party
seeks to admit breath-test results “without testimony from an expert
witness, the requirements of the statute must be scrupulously met so that there
will be a uniform, statewide basis of testing to vouch for accuracy and
reliability.” Id. at 408 (emphasis original; quotation omitted).

¶18 Subsection 28-1323.A lists five foundational elements for the
admission of breath-test results. Mowers admits the State satisfied the first
four requirements. Her argument centers on the fifth, which requires the
proponent to establish:

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The device used to conduct the test was in proper operating
condition. Records of periodic maintenance that show that the
device was in proper operating condition are admissible in
any proceeding as prima facie evidence that the device was in
proper operating condition at the time of the test. Calibration
checks with a standard alcohol concentration solution bracketing
each person’s duplicate breath test are one type of records of periodic
maintenance that satisfies the requirements of this section. The
records are public records.

A.R.S. § 28-1323.A.5 (emphasis added).

¶19 To satisfy subsection 28-1323.A.5, the State sought to admit
Exhibit 5, which shows “each individual subject test . . . bracketed by
calibration checks and error blanks.” But Exhibit 5 was not admitted. And
though the superior court said Chase could “testify as to what [Exhibit 5] is
if it supports and reflects his recollection of the test and whatever he put in
his report,” Chase gave no such testimony. Instead, following discussion of
Mowers’s objection, the State simply asked Chase “what were the results
[of Mowers’s breath test]?”

¶20 On appeal, the State argues “Chase would have laid foundation
for Exhibit 5 under the rules of evidence.” (Emphasis added.) According to
the State, because Chase “possessed the knowledge to testify that Exhibit 5
was what the State claimed it to be,” the superior court should have allowed
Exhibit 5 into evidence. See Ariz. R. Evid. 901(b)(1). Citing State v. Dawson,
Mowers argues we lack jurisdiction to hear the State’s argument because it
did not file a cross-appeal. See 164 Ariz. 278, 282 (1990) (“the [S]tate’s failure
to timely appeal or cross-appeal acts as a jurisdictional bar to its raising the
error in defendant’s appeal”). The State, also citing Dawson, argues it need
not cross-appeal here because it seeks only to uphold Mowers’s convictions
and sentences. See id. (“cross-assignment of error in the absence of a cross-
appeal can be considered only in support of the judgment”) (quoting State
v. Condry, 114 Ariz. 499, 501 (1977)).

¶21 We need not resolve the jurisdictional issue because the
record “reveals that the trial court’s decision was right, although for the
wrong reason.” See id. (citation omitted). Subsection 28-1327.B does not
prohibit the State from introducing Exhibit 5 through generally applicable
rules of evidence. But the State never asked Chase the proper foundational
questions. To be sure, Chase did testify in general terms about the self-
calibration process an Intoxilyzer 8000 completes with each examination.
Yet he never said whether the specific machine used to test Mowers

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completed that process or whether the machine displayed a successful
completion message after he tested Mowers.

¶22 Further, on cross-examination Chase was unable to say how
frequently the machine underwent “periodic maintenance,” going on to
disclaim any involvement “in the maintenance of that instrument.” The
testimony from Stenberg, the State’s toxicology witness, was similarly
unhelpful on this point. He too spoke in general terms of Intoxilyzer 8000
maintenance but denied involvement in the specific machine’s calibration.
Cf. State v. White, 155 Ariz. 452, 457–58 (App. 1987) (admitting breath-test
results after officer “testified that he conducted calibration checks on the
machine”). On this record, the superior court correctly excluded Exhibit 5.

¶23 Put simply, despite ample opportunity, the State introduced
no evidence establishing the specific Intoxilyzer 8000 used to test Mowers
“was in proper operating condition.” See A.R.S. § 28-1323.A.5. Allowing
Chase to testify about Mowers’s breath-test results, therefore, was an abuse
of discretion. See Johnson, 181 Ariz. at 408 (requiring scrupulous compliance
with statutory requirements).

II. The error in admitting the breath-test results was not harmless.

¶24 This court reviews improperly admitted evidence for
harmless error. See State v. Bolton, 182 Ariz. 290, 303 (1995). Under harmless
error review, the question “is not whether, in a trial that occurred without
the error, a guilty verdict would surely have been rendered, but whether
the guilty verdict actually rendered in this trial was surely unattributable to
the error.” Sullivan v. Louisiana, 508 U.S. 275, 279 (1993) (emphasis original).
Here, the State has not met its burden “of convincing us that [this] error was
harmless.” See State v. Anthony, 218 Ariz. 439, 446, ¶ 39 (2008).

¶25 The impaired charge required the State to prove—in part—
Mowers was under the influence of intoxicating liquor and impaired to the
slightest degree. See A.R.S. § 28-1381.A.1. To prove Mowers was impaired,
the State called Stenberg, who told the jury “all persons regardless of
tolerance are impaired to operate a motor vehicle at a .08 [BAC].” In its
closing argument, the State drew a clear connection between the breath-test
results and Mowers’s potential impairment, telling the jury “she was
impaired to the slightest degree at the time of driving by virtue of being over
a .08 as you heard by -- heard from Donald Stenberg.” (Emphasis added.)

¶26 Regarding the BAC charge, the State needed to prove—in
part—Mowers had a BAC of 0.08 or more within two hours of driving. See
A.R.S. § 28-1381.A.2. Here again, the State relied on Stenberg, who

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performed a “retrograde extrapolation” using Mowers’s breath-test results
to show her BAC was greater than 0.08 within two hours of the collision.
Because the State needed the test results to prove the 0.08 BAC element of
the offense, a jury could not convict Mowers without them. See id.

¶27 In short, because we cannot sever the impact of the breath-test
results on the jury for both charges, we are not “satisfied beyond a
reasonable doubt that the error did not impact the verdict.” See State v. Bass,
198 Ariz. 571, 580, ¶ 39 (2000). We, therefore, must vacate both convictions.

III. The superior court did not abuse its discretion when it allowed
Mazich to testify about Mowers’s incriminating statements.

¶28 Mowers also argues the superior court erred when it allowed
Mazich to testify that Mowers admitted to driving at the time of the
accident, to consuming four beers before driving, and knowing her driving
privileges had been revoked. Mowers specifically argues the State failed to
present sufficient evidence beyond her own words as required by the corpus
delicti doctrine. Because the improper admission of evidence at trial is
dispositive, we need not address her corpus delicti argument. We, however,
choose to address it to avoid confusion on remand. See Nayeri v. Mohave
County, 247 Ariz. 490, 494, ¶ 15 (App. 2019).

¶29 “The corpus delicti doctrine ensures that a defendant’s
conviction is not based upon an uncorroborated confession or incriminating
statement.” State v. Morris, 215 Ariz. 324, 333, ¶ 34 (2007) (italics added).
The doctrine requires, “as a condition of the admissibility of a defendant’s
incriminating statements, the State present evidence independent of the
statements sufficient to raise a reasonable inference” the crime charged
actually occurred. State v. Barragan-Sierra, 219 Ariz. 276, 281, ¶ 12 (App.
2008). Under this doctrine, “[o]nly a reasonable inference of the corpus delicti
need exist before a confession may be considered, and circumstantial
evidence suffices to support the inference.” State v. Carlson, 237 Ariz. 381,
387, ¶ 8 (2015) (quotation omitted). Here, the State met its burden.

¶30 Mowers’s first statement, explaining she was driving and
how the collision occurred, was corroborated by the physical evidence and
the explanation of the accident by D.M., the second driver. As the State
rightly notes: “To the extent that a factual question existed on whether
Mowers or [B.S.] had driven the car, it was not an issue of corpus delicti but
a factual issue to be decided by the jury.” Mowers’s second statement, that
she “had four beers,” was corroborated by her HGN test results and the
smell of alcohol noted by Mazich, Bohatir, and Chase. Finally, the

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suspension of her driving privileges was corroborated by the absence of
any driver’s license in Arizona, her having a non-operator identification,
and Mazich’s understanding Mowers’s privileges had been revoked several
times in Illinois.

¶31 Aside from Mowers’s confession, the above constitutes
independent corroborating evidence the crimes charged occurred. See
Barragan-Sierra, 219 Ariz. at 281, ¶ 12. The superior court, therefore, did not
abuse its discretion in admitting Mowers’s incriminating statements.

CONCLUSION

¶32 We vacate Mowers’s convictions and remand the matter to
the superior court for further proceedings consistent with this decision.

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

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