NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA
, Appell ee ,

v.

JEFFREY ALLEN WIGGS
, Appell ant

.

No. 1 CA

- CR 1 4

- 0 294

Appeal from the Superior Court in Maricopa County

No. CR201 3

- 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 C ounsel for Appell ant

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

2 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 conviction s and sentence s for two count s 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). T his court allowed Appellant to file a supplemental brief i n 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 Fi nding no reversible error, we affirm.

FACTS AND PROCEDURAL HISTORY 2

¶3 On July 22, 2013, the State charged Appellant by indictment with two counts of aggravated driving under the i nfluence, a class four felony. The State further alleged that Appellant had si x histo rical 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).STATE v. WIGGS Decision of the Court

3 ¶4 At trial, the State presented the following evidence: While driving home from work o n May 7, 2013, a witness heard a “crashing noise,” and observed a wh ite car had just been in an accident

. The witness called 911 and exited his ve hicle 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 , a nd 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 P olice D epartment responded to the scene and deter mined the registered owner of the vehicle was Rut h 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 m other. Appellant asserted his m other’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 offi cer observed Appellant’s eyes were “extremely bloodshot and watery” and Appellant smelled of alcohol. The officers aske d Appellant if the keys to his m other’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 fiel d 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,

w hile attempting and failing to properly conduct the “walk

- and

- turn” test
, Appellant stated he would not be able to complete the test

. T he officers arrested Appellant. U sing 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 o n the driver’s side. The officers transported Appellant to a nearby hospital where a blood test revealed Ap pellant’s blood alcohol level was .206. Appel lant did not testify at trial.

¶7 The jury found Appellant guilty of both counts of aggravate d driving under the influence. At sentencing, Appellant admitted having two histor ical 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 29STATE v. WIGGS Decision of the Court

4 days of pre

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

ANA LYSIS

¶8 Appellant raises several arguments in his supplemental brief s . 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 , 21 0 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 Jur or 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 addi tion, 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 re sponded 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 selecti on of the jury. Id

. Based on the record before

us, we see no error , let alone fundamental error

. Nothing in the record indicate s Juror 16’s presence as a member of the jury in any way harmed or prejudiced Appellant. The voir dire process and ultimate i mpaneling 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 objectio n 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 consequen ce 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 theSTATE v. WIGGS Decision of the Court

5 United States C onstitution

. Ariz. R. Evid. 402. Here, the forensic examination report documents Appellant’s blood alcoh ol 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 9 01. Accordin gly, the trial court did not err in admitting the forensic examination report.

¶12 Ap pellant further argues the admission of this report constitutes prosecutorial misconduct because Appellant “would have argued [his] case diffe rent[ly].” To prevail on a c laim 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 demon strate how the admission of the report resulted in any prejudice or a de nial 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, all eging the in

- court identification was “tainted.” Normally t his 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, d uring trial, the witness identified Appellant as t he driver of the vehicle. Appellant contends that testimon y by a police officer, stating the witness told th at officer he would n ot recognize the suspect’s face
, demonstrates that the witness was lying when the witness made the in

- court identification. W e see no error by the trial court in allowing the witness to make an in

- cour t identification of Appellant. Appellant’s counsel h ighlighted the contradictory statements made by the police officer and the witness during closing arguments, and the jury was f ree to believe whichever witness they chose

. S ee 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 c annot say the trial court erred in allowing the in

- court identification.STATE v. WIGGS Decision of the Court

6 ¶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 brou ght [this] to t he 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. Ca r 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 o mitted). 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, i rrelevant evidence is inadmissible. Ariz. R. Evid. 402. The State was not required to seek admission of the car keys, and t he 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] wh at

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.STATE v. WIGGS Decision of the Court

7 Q. That’s okay. No problem.
A. Do I need to back up?

Q. On e 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 T hese 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; C lark , 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and supports the verdict, and the sentence w as within the statutory limits. Appellant was represented by counsel at all stages of the proceedings and was given the oppor tunity 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.STATE v. WIGGS Decision of the Court

8 CONCLUSION

¶20 Appellant’s conviction s and sentence s are affirmed.