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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DUANE DEE LANE, Appellant.

No. 1 CA-CR 16-0812

Appeal from the Superior Court in Maricopa County

No. CR2015-124790-001

The Honorable Joan M. Sinclair, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Michael O’Toole

Counsel for Appellee

The Nolan Law Firm PLLC, Mesa

By Todd E. Nolan, Cari McConeghy Nolan

Counsel for Appellant

FILED 7-31-2018
STATE v. LANE

Decision of the Court

2

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which 

Presiding Judge Kenton D. Jones and Judge Jon W. Thompson joined.

B R O W N, Judge:

¶1 Duane Dee Lane appeals his convictions and sentences for 

one count of aggravated assault and five counts of endangerment. He 

argues the trial court erred by (1) not striking a biased juror during voir 

dire; (2) admitting improper character and other act evidence; (3) denying 

his motion for judgment of acquittal; (4) precluding evidence of a medical

defense; (5) improperly instructing the jury on reasonable doubt; and (6) 

relying on improper aggravating factors at sentencing. For the following 

reasons, we affirm. 

FACTUAL AND PROCEDURAL BACKGROUND

¶2 In the early afternoon, Lane was driving over 50 miles per 

hour when he rear-ended a Kia automobile stopped at a traffic light, 

injuring his passenger and the five occupants of the Kia. One of the young 

children in the Kia’s back seat was seriously injured. 

¶3 A detective interviewed Lane and noticed signs of 

impairment. Officers then obtained samples of Lane’s urine and blood, 

subsequent testing of which revealed the presence of a heroin metabolite, 

morphine, amphetamine, and methamphetamine. Lane admitted he took 

“two pain pills” the morning of the collision. 

¶4 The State charged Lane with one count of aggravated assault, 

a class 2 dangerous felony (Count 1), and five counts of endangerment, class 

6 dangerous felonies (Counts 2-6). For Counts 1 to 5, the jury found Lane

guilty as charged and, during the aggravation phase of trial, found the 

offenses involved the use, threatened use or possession of a deadly weapon 

or dangerous instrument during the commission of the crime and that the 

offense resulted in the infliction or threatened infliction of serious physical 

injury. For Count 6, the endangerment charge relating to Lane’s passenger, 

the jury found Lane guilty of the lesser-included offense of misdemeanor 

endangerment. The court imposed a slightly aggravated sentence for the 

aggravated assault conviction, presumptive sentences for the four felony 
STATE v. LANE

Decision of the Court

3

endangerment convictions, and a terminal disposition for the misdemeanor

based on time served. Lane timely appealed. 

DISCUSSION

A. Failure to Strike Prospective Juror

¶5 During voir dire, prospective juror 28 and the trial court had 

the following exchange:

PROSPECTIVE JUROR: My husband was hit by a driver some 

years ago, and that driver just took off, and we don’t know 

who that was. My husband has since passed away, not based 

on that, but I’m a widow.

Also a while back we had the back of our mailboxes just 

totally ripped off and there was a credit card coming from the 

bank at the time. Bottom line is somebody got our credit card, 

had a beautiful $45,000 wedding. You can see all the point of 

sales where they went through and spent.

THE COURT: I’m sure it was lovely. Was anyone ever 

charged with either of those things?

PROSPECTIVE JUROR: No.

THE COURT: Okay. Either of those incidents make it difficult 

for you to be fair and impartial?

PROSPECTIVE JUROR: Possibly. I’m not sure.

THE COURT: Okay. In what way?

PROSPECTIVE JUROR: The car, I think the car accident, the 

hitting, person not stopping is difficult.

THE COURT: Okay. Okay. 

Lane argues the court reversibly erred by failing to sua sponte strike Juror 

28. According to Lane, the juror’s experience involving a traffic accident 

reflected her inability to be fair and impartial, and her comments 

established a presumption of prejudice. 

¶6 Here, Lane had the opportunity to address whatever 

purported error arose during voir dire in connection with Juror 28. At the 

very least, his counsel could have questioned Juror 28 about her comments 
STATE v. LANE

Decision of the Court

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to the court, but failed to do so. Lane did not request that the court excuse 

Juror 28 for cause, nor did he use a peremptory strike to remove her. Lane 

also passed the jury panel, which included Juror 28. He has therefore 

waived his challenge to the court’s selection of Juror 28. See State v. Rubio, 

219 Ariz. 177, 181, ¶ 12 (App. 2008) (holding that a defendant “waives any 

error” if he or she does not “use an available peremptory strike to remove 

an objectionable juror whom the trial court has refused to remove for 

cause”); see also State v. Smith, 228 Ariz. 126, 128, ¶ 7 (App. 2011) (explaining 

that the waiver rule articulated in Rubio also applies when the defendant 

fails to object to a juror). 

¶7 Waiver aside, Lane has not established fundamental, 

prejudicial error. See State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20 (2005). 

Juror 28’s statement that her prior experiences could “[p]ossibly” make it 

difficult for her to be fair, without more, does not establish a presumption 

of prejudice. See State v. Bible, 175 Ariz. 549, 573 (1993) (concluding that no 

fundamental error occurred when the trial court did not sua sponte strike 

several jurors who “indicated that, for one reason or another, they would 

find it difficult but not impossible to be fair and impartial”). Moreover, 

given the lack of follow-up questioning, Juror 28 was not afforded the 

opportunity to state whether she could render a fair verdict, see id., but she 

provided an implicit indication she could be fair when she did not raise her 

hand after the court asked if there was “anyone who would be unable to 

follow the law as given.” Lane has thus failed to meet his burden of 

showing he was prejudiced when the trial court did not sua sponte strike 

Juror 28. 

B. Impeachment Evidence 

¶8 During trial, Pretrial Services1 reported that Lane had 

violated curfew, failed to submit to drug testing and participate in 

substance abuse treatment, and admitted to using methamphetamine on 

two occasions while trial was pending. When Lane subsequently testified, 

defense counsel asked him whether he was “honest” when he admitted to

the investigating detective he had smoked methamphetamine the day 

before the traffic accident. Lane responded as follows: 

 

1 Pretrial Services, a division of Adult Probation, monitors a 

defendant’s compliance with their conditions of release pending trial.
STATE v. LANE

Decision of the Court

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Yes, I told him, I said, yeah, I was at a party, you know. A 

bunch of boilermakers, you know.[2] We were all –- some 

were not partying, but some are, you know. It was just time 

off when we’re not working. And, yes, I did take some meth, 

yeah. I smoked some of it. And I didn’t like it.

And you know, like, man, I remember those days, you know. 

Bad memories, you know. And that’s about it, you know. I 

wasn’t going to drink. He offered me a drink, and I said, “I 

don’t drink anymore.” 

When defense counsel subsequently asked Lane whether he had “done

meth more than just that day,” Lane responded, “Oh, of course, yes. I mean 

–- I mean, in the past, yes.”

¶9 Based on the foregoing testimony, the prosecutor requested

the court’s permission to impeach Lane on cross-examination with his 

admission to Pretrial Services that he used methamphetamine while trial 

was pending. Over Lanes’ objection on grounds he did not “open the door” 

to the State’s proffered evidence, the trial court granted the motion. 

Accordingly, Lane acknowledged during cross-examination that he twice 

used methamphetamine a month before trial commenced. 

¶10 Lane argues the trial court erred in allowing the State to 

present evidence of his methamphetamine use while on release. He

contends his direct examination testimony “in no way opened the door for 

discussion about pretrial services alleging that [Lane] had recently ingested 

meth.” We review the court’s ruling for an abuse of discretion. See State v. 

Hausner, 230 Ariz. 60, 78-79, ¶ 73 (2012).

Except for a criminal conviction under Rule 609, extrinsic 

evidence is not admissible to prove specific instances of a 

witness’s conduct in order to attack or support the witness’s 

character for truthfulness. But the court may, on crossexamination, allow them to be inquired into if they are 

probative of the character for truthfulness or untruthfulness 

of . . . the witness. 

Ariz. R. Evid. 608(b)(1).

 

2 Lane was an apprentice boilermaker; thus, the reference to 

“boilermakers” appears to allude to Lane’s co-workers. 
STATE v. LANE

Decision of the Court

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¶11 Because Lane testified on direct that he “didn’t like” 

methamphetamine and his drug use was “in the past,” the State could, 

under Rule 608, permissibly inquire into Lane’s recent use of 

methamphetamine to challenge his credibility. See Fridena v. Evans, 127 

Ariz. 516, 520 (1980) (“The truthfulness and veracity of a witness is always 

material.”). Despite his assertion to the contrary, Lane opened the door to 

this line of inquiry. See State v. Lopez, 107 Ariz. 214, 217 (1971) (concluding 

defendant opened door to impeachment of his credibility when he denied 

ever being previously arrested). The court did not abuse its discretion.

¶12 Lane also argues admission of his recent drug use was error 

under Arizona Rule of Evidence 404(b).3 Because Lane did not raise Rule 

404 as a basis for his objection, we review for fundamental error. See State 

v. Lopez, 217 Ariz. 433, 434-35, ¶ 4 (App. 2008). 

¶13 Rule 404(b) provides that “evidence of other crimes, wrongs, 

or acts is not admissible to prove the character of a person in order to show 

action in conformity therewith.” Ariz. R. Evid. 404(b). The court did not 

admit evidence of Lane’s recent drug use to show he acted in conformity 

with a character trait. The evidence was admitted to impeach Lane’s 

credibility. No error, fundamental or otherwise, occurred.

C. Medical Defense

¶14 During a break in proceedings prior to Lane’s testimony, the 

State sought a ruling precluding “any type of testimony that might hint at

some type of medical defense.” The State informed the court that, although 

Lane disclosed the possibility of such a defense, he had not disclosed any 

medical diagnoses he would raise or an expert who would provide 

supporting evidence. The court asked whether Lane “anticipate[d] going 

in that direction, and Lane responded, “No.” Based on Lane’s response, the 

court granted the State’s request. 

 

3 Although Lane mentions Arizona Rule of Evidence 403 as an 

additional basis for challenging the court’s ruling, he develops no 

argument. We therefore do not address the admissibility of the evidence 

under Rule 403. Ariz. R. Crim. P. 31.10(a)(7)(A) (requiring opening brief to 

contain “appellant’s contentions with supporting reasons for each 

contention, and with citations of legal authorities . . . on which the appellant 

relies”); State v. Lindner, 227 Ariz. 69, 70 n.1, ¶ 3 (App. 2010) (finding waiver 

because defendant “summarily refers” to issues in his opening brief and 

“fail[s] to argue them”).
STATE v. LANE

Decision of the Court

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¶15 Lane argues the court’s ruling amounts to fundamental error. 

We do not address the merits of this argument, however, because to the 

extent the court erred, Lane invited the error. See State v. Pandeli, 215 Ariz. 

514, 528, ¶ 50 (2007) (finding invited error because the trial court asked 

defense counsel whether he “objected to the child molestation testimony 

and he explicitly stated that he did not”). Moreover, we would be unable 

to review Lane’s argument because he did not make an offer of proof 

regarding a medical defense. See State v. Kaiser, 109 Ariz. 244, 246 (1973)

(“As a general rule evidence cannot be reviewed on appeal in the absence 

of an offer of proof.”).

D. Portillo Instruction

¶16 Lane argues the trial court committed fundamental error by 

instructing the jury on reasonable doubt pursuant to State v. Portillo, 182 

Ariz. 592 (1995). The court did not err. Our supreme court has repeatedly 

upheld the Portillo instruction and has instructed trial courts to use the 

instruction in every criminal case. State v. Dann, 220 Ariz. 351, 365, ¶ 65 

(2009). Even if we were inclined to do so, we have no authority to overrule 

our supreme court’s decision on this matter. State v. Paredes-Solano, 223

Ariz. 284, 292, ¶ 23 (App. 2009). 

E. Sufficiency of Evidence

¶17 Lane argues the superior court erred in denying his motion 

for a judgment of acquittal regarding the felony endangerment convictions. 

See Ariz. R. Crim. P. 20. We review the sufficiency of evidence de novo. 

State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). “[T]he relevant question is 

whether, after viewing the evidence in the light most favorable to the 

prosecution, any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt.” Id. at ¶ 16 (quotation 

omitted). “Substantial evidence . . . is such proof that reasonable persons 

could accept as adequate and sufficient to support a conclusion of 

defendant’s guilt beyond a reasonable doubt.” Id. (quotation omitted).

“Both direct and circumstantial evidence should be considered in 

determining whether substantial evidence supports a conviction.” Id. 

¶18 With respect to the four victims in the Kia, Lane contends the 

evidence did not sufficiently prove he “recklessly endanger[ed] [them] with 

a substantial risk of imminent death.” See A.R.S. § 13-1201(A) (“A person 

commits endangerment by recklessly endangering another person with a 

substantial risk of imminent death or physical injury.”). We disagree. 
STATE v. LANE

Decision of the Court

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¶19 All the occupants of the Kia were transported to local 

hospitals. The father of two of the three young children in the back seat, 

R.D. and J.D., was driving the Kia, and the impact caused him to briefly 

“black[] out.” When he regained consciousness as the car rolled through 

the intersection, he stopped the vehicle. The driver’s door would not open 

so he climbed out the window and tried “to get everybody out of the car 

[because he] was afraid it was going to catch on fire.” He suffered a

fractured spine and a concussion. A third child in the back seat, the threeyear-old aggravated assault victim, suffered a severe head injury requiring 

emergency brain surgery. 

¶20 Further, an officer from the vehicular crimes unit (“VCU”)

who investigated the crime scene testified the airbag control module on 

Lane’s vehicle revealed he was traveling 52 miles per hour when, without 

braking, he impacted the back of the Kia, which was stopped at a red light. 

Upon impact, the Kia suddenly lurched from a standstill to 49 miles per 

hour and proceeded almost 160 feet into the intersection. Consistent with 

the expert testimony, eyewitnesses described hearing a “really loud . . . big, 

huge . . . crash,” after observing Lane driving “really, really fast.” 

Significantly, the VCU officer testified that, based on the amount of force 

involved, he was “shock[ed] there wasn’t a fatality in this crash.” Thus, the 

State presented sufficient evidence to prove that Lane placed all of the Kia’s 

occupants in actual substantial risk of imminent death. See State v. Carreon, 

210 Ariz. 54, 63, ¶ 39 (2005) (“[A] defendant places a person in substantial 

risk if he places the victim in actual substantial risk of imminent death.”) 

(quotation omitted).

¶21 The jury could also reasonably conclude that Lane acted 

recklessly. See A.R.S. § 13-105(10)(c). The State can prove recklessness by 

showing that the defendant “was aware of and consciously disregarded the 

risk” or “was unaware of the risk he created solely due to his voluntary 

intoxication.” State v. Brown, 168 Ariz. 481, 483 (App. 1991). Here, Lane

was traveling 52 miles per hour—12 miles per hour over the speed limit—

when he did not attempt to stop as he approached the red light. Lane

admitted that he “wasn’t really paying attention to the road” and that he 

was “count[ing] down just mentally in [his] head [that] it’s going to turn 

green.” He explained he did not “brake at all” or “slow down” because he

thought the light would turn green by the time he entered the intersection.

That conduct by itself could reasonably be considered reckless. 

¶22 Finally, the jury could reasonably find that Lane behaved 

recklessly by driving while under the influence of both a stimulant and a 

narcotic analgesic, thus rendering him unaware of the risk posed by his 

driving. Passersby who stopped to offer assistance immediately after the 
STATE v. LANE

Decision of the Court

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accident described Lane as “acting really weird,” “jumpy, but sort of calm, 

too,” and as if “he just didn’t seem like he was there . . . it was like he didn’t 

care about anything.” As noted, the drug recognition expert who 

interviewed Lane later that day recognized multiple cues of impairment,

and blood and urine tests revealed the presence of various drugs in Lane’s 

system at the time of the incident. The expert opined that based on Lane’s 

noticeable impairment, he could not safely operate a motor vehicle the day 

of the collision. 

¶23 Based on the foregoing, substantial evidence supports Lane’s 

felony endangerment convictions. Thus, the trial court properly denied 

Lane’s Rule 20 motion.

F. Aggravating Factors

¶24 After the guilt phase of the trial, the court instructed the jury 

regarding the aggravation phase and counsel presented oral arguments to 

the jury. The jury found that the felony offenses involved the use of a 

dangerous instrument and the infliction of serious physical injury. 

¶25 Lane argues the trial court erred by relying on improper 

factors to impose an aggravated sentence for the aggravated assault 

conviction. He contends (1) the State was obligated to present “additional 

evidence” at the aggravation phase beyond what the jury heard at the guilt 

phase; and (2) the dangerousness factor used to aggravate the sentence was 

improper because dangerousness is an element of aggravated assault.4 

Because Lane did not raise these issues in the trial court, we review for 

fundamental error. State v. Trujillo, 227 Ariz. 314, 317, ¶ 9 (App. 2011).

¶26 As a preliminary matter, we reject Lane’s unsupported 

contention that the State was required to present additional evidence to the 

jury to meet the burden of proving aggravating factors. The jury that 

rendered the guilty verdicts was the same jury that found the aggravating 

factors at the subsequent hearing. See State v. Roseberry, 210 Ariz. 360, 369, 

¶ 47 (2005) (stating that “neither the State nor the defense presented any 

new evidence because the aggravation jury was the same jury that heard 

the guilt-phase evidence”). Therefore, the jury could properly rely solely 

 

4 Lane also argues the sentences for the endangerment convictions 

were “improper[ly] . . . aggravated.” As noted, however, the sentences for 

the endangerment convictions were presumptive, not aggravated, terms. 

Therefore, we do not address the purported impropriety in aggravating the 

endangerment sentences. 
STATE v. LANE

Decision of the Court

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on the evidence presented during the guilt phase to render its verdicts 

regarding the aggravating factors. See id. at ¶¶ 48, 51.

¶27 Regarding the jury’s dangerous instrument finding, it would 

have been error for the court to impose the aggravated sentence based on 

that finding because use of a dangerous instrument is an element of the 

aggravated assault conviction. See A.R.S. §§ 13-701(D)(2) (prohibiting use 

of a deadly weapon or dangerous instrument to enhance sentence “if this 

circumstance is an essential element of the offense of conviction”), 

-1204(A)(2) (listing, as one of the circumstances in which assault becomes 

aggravated assault, the use of “a deadly weapon or dangerous 

instrument”). But the record does not show that the court relied on the 

dangerousness finding to impose an aggravated sentence for the 

aggravated assault conviction. Although Lane argues to the contrary, the 

jury’s serious physical injury finding was a proper aggravating factor the 

court could consider because serious physical injury was not an element of 

the crime as stated in the final jury instructions; the State only needed to 

prove physical injury. See A.R.S. §§ 13-1203(A)(1), -1204(A)(2). Thus, Lane 

fails to meet his burden of establishing any error occurred, much less 

fundamental error. 

CONCLUSION

¶28 Based on the foregoing, we affirm Lane’s convictions and 

sentences.