NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

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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 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).
STATE v. WIGGS

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3

¶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 
STATE v. WIGGS

Decision of the Court

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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 
STATE v. WIGGS

Decision of the Court

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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.
STATE v. WIGGS

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¶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 AfricanAmerican 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

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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.
STATE v. WIGGS

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CONCLUSION

¶20 Appellant’s convictions and sentences are affirmed.