IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Appellee,

v. DANIEL HERIBERTO RIVER A, Appellant. )

) ) ) ) ) ) ) ) ) 2 CA-CR 2001-0445

DEPARTMENT B O P I N I O N

APPEAL FROM THE SUPER IOR COURT OF PIMA C OUNTY Cause No. CR-20011419 Honorable Patricia G. Es cher, Judge Honorable Howard Hantma n, Judge AFFIRMED Terry Goddard, Arizona Attorney General By Randall M. Howe and Consuelo M. Ohanesian Susan A. Kettlewell, P

ima County Public Defen der By John F. Palumbo Phoenix Attorneys for Appellee

Tucson Attorneys for Appellant E S P I N O S A, Chief Judge. ¶1 Appellant

Daniel Heriberto Rivera was convicted after a jury trial of driving while under the influence of an intoxicant (DUI) with a minor present; aggravated driving with a blood alcoholconcentration of .10 or gr eater with a suspended, revoked, or restricted license; aggravated1 The statute was later amend ed to reduce the

legal blood alcohol

concentration to under .0 8. A.R.S. § 1381(A)(

2); 2001 Ariz. Sess. La

ws, ch. 95, § 5. 2 driving with a blood alcohol concen tration of .10 or greater w ith two or mor e p rior DUI convictions; andtwo counts of endangerme nt. 1 The trial court suspended im position of sentence andplaced Rivera

on concurrent, three-year terms of probation for each co nviction. On appeal, he challenges the three DUI -based convictions, cont

ending the state

violated his due process righ ts by trying him both on

the theory that he had been the driver and on the alternative theo ry that he had been a pass enger in temporary but actual control of the vehicle, when the grand jury had indicted him only on the former theory. We affirm. I. ¶2 The evidence, viewed in the light most

favorable to supporting the verdicts, State
v. Nihiser , 191 Ariz. 199, 953 P
. 2d 1252 (App. 1997), revealed the following. Shortly after midnight on April 7, 2001, Rivera fled on foot from a car that had come to rest after veering off the road and onto a raised me dian. The accident dam

aged t he car, uproot

ed a traffic sign, and showered debris onto oncoming traffic. A civilian stopped to assist and encoun tered Rivera’s girlfriend, E., and her eight-year -old daughter, A. E. told the civilian she had not been driving. When police officers arrived, E. told Deputy Krygier that Rivera, her live-in boyfriend, had been driving the car after they had left a bowling alley where he had been drinking beer. She gave the deputy their nearby home addre ss, and officers found Rivera there a short time later. He admitted he had been in an accident b ut stated, “You guys can’t prove I was driving.” Rivera was arrested forDUI, and his blood was drawn at 1:35 a.m., a sample of which was later shown to have an2 The record is conflicting as to whether defense c

ounsel received the lette

r on July 16 or whether the letter was da ted July 16 and he learned o f it sometime before Au

gust 10. 3 alcoholconcentration of .161. Rivera’s driver’s license was revoked at that time, and he had previously been convicted of two other DUI offense s committed in 1997 and 1998
. ¶3 One of the responding office rs relayed a cond

ensed ve rsion of the foregoing evidence to the grand jury on April 13, 2001. A lthough the

evidence presented to the grand jury identified Rivera as being the driver, the pertinent c ounts of the indictment

alleged that he “drove
or was in actual physical control of [the] vehicle” (em

phasis added). This language m irrored the DUI statute on which t

hose charges were based, A.R.S . § 28-1381(A), which pr ovides, “It is unlawful for a person to drive or be in actual physical co ntrol of a vehicle in

this stateunder any of the following circumstances . . . .” (Emphasis added). ¶4 Subsequently, in a letter he apparen tly receiv ed on July 16, Rivera’s counsel learned t hat E. was claiming that she, not Rivera, had been dr iving the car at the time of th e incident. 2 Based on that letter, counsel file d amotion dated August 10 to dismiss the case for lack

of probable cause to arrest Rivera . The trial court denied the motion after a hearing on August 27 at which E. testified that she had bee n driving and that Rivera ha d cause d the accident by grabbing th e steering wheel. ¶5 Anticipatinga discrepancy in trial testimony over who had been driving, the state interviewed A. forthe first time on the afternoon of August 29, the day before trial, and learned thatshe, too, would

testify that E. had been driving, rather than Rivera. On August 30, as trial
was about to begin, the state an nounced that it

was proceeding

on two alternative theories: either thatRivera had been the driver or that he had been in actual physical control when his actions as4

a passenger caused the accident. Rivera moved on due process grou nds to preclude

any theory of prosecution not presente d to the grand jury. The trial c ourt denied the motion. ¶6 At

trial, both E. and A. testified that E. had been driving when they left the bow ling alley; that, after arguing with E., Rivera had ordered her to pull over; and that Rivera had grabbed the steering wheel just before the accident. Their testim ony was inc onsistent with that of the civilianwitness who had stopped to assist, who reported that E. had denied being the driver , and of Deputy Krygier, who testif ied that E. had twice told him that Rivera had been dri ving. The state argued to the jury that it could find Rivera guilty on th e theory that he

had been the driver or, if it believed E. had been driving, it could f ind Rivera guilty

on the theory of actual physical control. The jury returned a unanimous verdict of guilty on all counts, but the f orm of verdict did not reveal whether the jur ors had determined who ha d been behind the wheel. II. ¶7 Rivera

argues his due process righ ts under the federal and s tate constitutions were violated because his DUI-based convictions may have bee n for crimes for whic

h he wa s not indicted. Although

we generally review a trial court’s ruling on a motion to dismiss the i ndictment foran abuse of discretion, w e review Rivera’s due

process claims de novo
. State v. Rosengren , 199 Ariz. 112, 14 P.3d 303 (A pp. 200 0); see also In re U. S. Currency of $315,900.00 , 183 Ariz. 208, 902 P.2d 351 ( App. 1995) (constitutional qu estions reviewed de novo ). ¶8 It

is axiomatic that “[c]onv iction upon a

charge not made would

be sheer denial of due process.” DeJonge v. Oregon , 299 U.S. 353, 362, 57 S . Ct. 255, 259, 81 L. Ed. 2 78, 282 (1937). Article II, § 24 of the Arizona Constitution establishes that “[i]n criminal prosecutio ns, the accused shall have

the right to . . . demand th e nature and cause of th

e accusation

against him,3 At issue in Dawley was a jury instruction pattern ed on Zavala

and Love; Dawley presen ted a previously unconsidered fact pattern and illustrated the pitfalls of defining actua l physical control based on case law arising from different facts. Dawley
. 5 [and] to have a copy

thereof.” The

Sixth Amendment to the United States Constitution provides
an equivalen t r ight. However, we do not f ind that any of these constitut ional protections were denied Rivera. Evidence both b efore the grand jury and a t t r ial established that he had either driven or been in actual physical control of the c ar, which, we conclude, are two ways o f committing a single DUI offense. ¶9 As previously stated, § 28-1381 (A) provides: “It is unlawful for a person to drive
or be in actual physical contr ol of a vehicle in this st a te under any of the followin g circumstances
. . . .” The phrase “actual physical control” has never been defined in Arizona’s DUI statutes, State v. Dawley , 201 Ariz. 285, ¶3, 34 P. 3d 394, ¶3 (App. 2001), but it has been the focus of an evolving serie s of court decisions. See State v. Love , 182 Ariz. 324, 897 P.2d 626 (1995); State v. Zavala , 136 Ariz. 356, 666 P.2d 456 (1983); State v. Webb , 78 Ariz. 8, 274 P.2d 33 8 (1954); Potter v. Ariz. Dep’t of Transp. , 204 Ariz. 73, 59 P.3d 83 7 (App. 20 02) ; Dawley
. Love , Zavala , Webb , and Potter addressed factual situa tions in which persons found in parked vehicles could possibly be guil ty of DUIby remaining in actual physical control. Dawley presented a slightly different scenario, in which a person was found be hind the driver’s seat of

a vehicle he contended was mech anically ino

p erable. 3 These cases broadly dem onstrate that by in cluding “actual physical control,” the legislature intended to extend the DUI statutes to encompas s those situations in which a person who is not actually driving nonethele ss poses an equivalent risk. See Love , 182 Ari z. at327, 897 P.2d at 629 (fac tfinder should “weigh the myr iad of6

circum s tances” in each case to determ ine whether defendant “p resented a danger to him self or others”); Webb , 78 Ariz. at 11, 274 P.2d at 339 (purpose of “actual physical control” pr ovision is to “enable the

drunken driver to be apprehended before he strikes”); Dawley , 201 Ariz. 285, ¶9, 34 P.3d 394, ¶9 (defend ant had actual physical control if “potential use of the vehicle presented a real danger to himself or others”). ¶10 By speaki ng i n Dawley of driving and actual physic al control as alternative “t heor[ies] of culpability,” we did not mean to suggest that each was an independen t crime
. Dawley , 201 Ariz. 285, ¶10, 34 P.3d 394, ¶10. W ere th at true, any person guilty of driving under the influence under typic al circumstances would a lso necessarily

be guil ty of a second offense—being

in actual physical control in the moments before sta rting the ignition and beginning to drive. This absurd result is avoided if “driving” and “ac tual physical control” are understood to be alternative (and not m utually exclusive) ways of violating the DUI laws by eithe r driving or non-drivin

g behavior. State ex rel. O’Neill v. Brown , 182 Ariz. 525, 527, 898 P .2d 474, 476 (1995) (each DUI offense “may be committed in two separate ways,” either by driving or actual physical control). We find it instruc tive that driving and actual physical control appear together in the same sentence rather than in separately numbered subsections. Cf. State v. Sande rs , 205 A riz. 208, 68 P.3d 434 (App. 200 3) (due process violated

when trial court permit

ted mid-trial amendment

of indictment charging a ggravated assa

ultbased on A.R.S. § 13-1203(A)(3), knowingly touching victim, to § 13-1203(A)(2), placing victim in apprehens ion of injury). ¶11 Of

course, a person who drives a vehicle actually physic ally controls it; driving is
a subset of actual physical control. See Brown , 182 Ariz. at 527, 898 P.2 d a t 476 (“‘actual physical control’ portion

is broader” than driving

portion of statute). Pres

umably for that reason,4 Under other hypothetical situations, such as that suggested by the state below in closing argument—a

passenger steering a mo

ving car consensually while the driver changes a sweater—the distinction between driving an d actual physical control wo uld be even more blurred
. 7 the aforementioned Arizona cases discussing actual physical control have involved conduct other than driving. Although § 28-1381(A) is written in the d isjunctive, this case

illustrates the peril of treating driving and actual physical control as two

offenses rather than a

s two ways of committing
a single offe nse. In the ab sence of a jury instruction defining driving, the act E.’s and A.’s testimony described—a passenger’ s grabbing the steering wheel of a moving car and ca using it to jump onto the median—is conduct th at arguably

could or could not

constitute driving. 4 However, at a minimum, as discussed in paragraph 16, infra , it certainly constituted evidence of ac tual physical control. III. ¶12 Due process requires that a defendant be given “‘noti ce of the specific

charge, and
a chance to be

heard in a trial of the issues raised by that charge.’” State v. Blakley , 204 Ariz. 429, ¶47, 65 P.3d 77, ¶47 (2003), quoting Cole v. Arkansas , 333 U.S. 196, 201, 68 S . Ct. 514, 517, 92 L. Ed. 644, 647 (1948). The indictment itself need not inform the defe

ndant of the

theory by which the

state intendsto prove that charge so long as the defendant receives sufficient notice to reasonably rebut the al le gation. State v. Arnett , 158 Ariz. 15, 760 P.2d 1 064 (1988) (in prosecution

for first-degree murder, defendant given adequate notice when he learned on first day of trial that state would

proceed on both premeditated and felony murder theories); cf. Blakley , 204 Ariz. 429, ¶¶ 53-56, 65 P.3d 77, ¶¶ 53-56 (defendant, indicted for first-degree murder on felony murder theory based on predicate felony of sexual assault, denied constitutiona lly required notice8

when state waited until eve of c losing argument to announce it was basing felony murde r theory
on predicate felony

of child abuse). The jury need not unanimously agre e on a theory so long as it unanimously agrees on

a verdict. Schad v. Arizona , 501 U.S. 624, 111 S. Ct. 2491, 115 L. Ed. 2d 555 (1991); State v. Salazar , 173 Ariz. 399, 844 P.2d 566 (1992). ¶13 Here, a fter hearing evidence that E. had said Rivera wa s driving, the grand jury indicted him on three, DUI-based charges, e ach citing § 28-1381 and accusing him of having been driving or in actual physical co ntrol. At trial, the state pre sented evidence that E. h ad initially identified Rivera as the driver, a s well as the testimony of E. and A. that R ive ra had been a passenger but

had taken actual physical co ntrol when he grabbed the ste ering wheel from the passenger seat and

caused the car to crash. Although E.’s and A.’s alternate version o

f the facts had only come to light

after the grand jury hea

ring, Rivera had suffic

ient notice of the latter the ory. Counsel had been aware at lea st twenty days before trial t h at E. was claiming she ha d been the driver, he had been aware atleast three days before trial that the state would be pursuing an alternative

theory of actual physical control, and he had been informed the day befor

e trial that A. would testify consistently with E. ¶14 We find this case d istinguishable from Ri vera’s primary authorities, State v. Martin , 139 Ariz. 466, 679 P.2d 489 ( 1984), and State v. Mikels , 119 A riz. 561, 582 P.2d 651 (App. 1978). In Mikels , the grand jury indicted the defendant for an act of sodomy which took place in
a shower stall. The trial evidence showed instead, and the prosecu

tor argued to the jury, that th e defendant committed an act of sodomy in a different loca tion a t least twelve days later tha n the shower stall incident alleged in the indictment. This court vacated the judgment, findin g “that appellant was not convicted of the crime

for which he was indicted. ” Mikels , 119 Ariz. at 563,9

582 P.2d at 653. Similarly, in State v. Johnson , 198 Ariz. 245, 8 P.3d 1159 (App. 2000), this court vacated convictions fo r sexual c onduct with a minor and child molestation when the trial testimony showed entirely

different sexual acts th

an those specified in the c harging document

and the trial court permitted the state to amend the information to conform to that evidence . Here , Rivera was indicted for, tried fo r, and convicted of one discrete crime occurring at a distinct time andplace, not

distinct different crimes that could have been indepen dently prosecuted as in Mikels and Johnson
. ¶15 In Martin , the indictment charged the defendant and a codefendant with sel lin g narcotics to a third person. The prosecution’s theory of the case shifted at trial to reflect the evidence, which showed only that the two defendants had en gaged in narcotics transa ctions with each other. Our supreme cou rt reversed, finding the defendant had not received adequate notice of this construction of the indictm ent, which he

could not have

foreseen. Martin . Here, in contrast, Rivera had a

mple notice that A. and E. planned to testify that E. ha d been driving and that the state would expand its theory of prosecution to incl ude that scenario. IV. ¶16 Finally, we reject Rivera’s sug gestion that the behavior asc ribed to him by A. and E. did not constitute actu al physica l control for the purposes of Arizona’s DUI statutes. H is argument is based in large

part on the “actual physica l control” jury instruction we ar ticulated in Dawley : that the defendant there “was in ‘actual physical c ontrol’ of the vehicle if, based on the totality of the circumstances sh own by the evidence, his

potential use of the vehicle presented a

real danger to himself

or others.” Dawley , 201 Ariz. 285, ¶9, 34 P.3 d 394, ¶9. We proffere d this instruction

as one that would be acce ptable for the facts pre

sented in Dawley , not as an all-10

encompassing

legal definition of actual physical control ap propriat e to all fact patterns. See footnote 1, supra . In light of the purpose of the actual physical control provision, however, we conclude that, a passe

nger who gra

bs the steering wheel of a moving car and alters the car’s movement

has assumed actual physical control for purposes of the DUI statutes. See Atkinson v. State , 627 A.2d

1019, 1027 (Md. 1993) (similar “actual physical control” provision encompass es “directing influence” on a vehicle); St ate v. Ruona , 321 P.2d 615, 618 (Mont. 1958) (same); Parker v. State , 424 P.2d 997, 1000 (Okla. Crim. App. 1967) (same); see also United States Fid
. & Guar. Co. v. Hokanson , 584 P.2d 1264, 1267 (Kan. C t. App. 1978) (where ac

cident resulted from front-seat passenger’ s suddenly pulling on steering whe el, causing driver to lose c ontrol of vehicle, “[b]y grabbing the wheel and exe rting a force on

it, [the passenger] obta

ined control of the vehicle, even though for only an instant”). ¶17 We affirm the judgments of conviction and the probationary terms imposed.

PHILIP G. ESPINOS

A, Chief Judge CONCURRING:

JOHN PELANDER, Presiding J udge

PETER J. ECKERSTROM , Judge