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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ERIC ALDEN MILLER, Appellant.

No. 1 CA-CR 15-0028

Appeal from the Superior Court in Maricopa County

No. CR2012-110150-001

The Honorable Brian D. Kaiser, Judge Pro Tempore

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
STATE v. MILLER

Decision of the Court

2

MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in 

which Judge Kent E. Cattani and Judge John C. Gemmill joined.

J O H N S E N, Judge:

¶1 This appeal was timely filed in accordance with Anders v. 

California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), 

following Eric Miller's convictions of four counts of aggravated driving or 

actual physical control while under the influence of intoxicating liquor or 

drugs, each a Class 4 felony. Miller's counsel has searched the record on 

appeal and found no arguable question of law that is not frivolous. See 

Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 

Ariz. 530 (App. 1999). Miller was given the opportunity to file a

supplemental brief but did not do so. Counsel now asks this court to search 

the record for fundamental error. After reviewing the entire record, we 

affirm Miller's convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶2 While driving in a parking lot, Miller collided with another

car.

1 The owner of the other car testified she noticed an odor of alcohol 

from Miller and called 911. Officers discovered Miller at a nearby 

residence. After speaking with Miller and conducting a field sobriety test, 

officers arrested him for driving under the influence of intoxicating liquor

("DUI"). About two hours after the accident, two breathalyzer tests

measured Miller's blood alcohol level at .198 and .197. A criminalist 

testified that Miller's blood alcohol level would have been at least .200 

within two hours of driving. Miller testified his driver's license was 

suspended on the day of the accident and that he had two prior DUI 

convictions. As noted, the jury convicted Miller of four counts of 

aggravated driving or actual physical control while under the influence of 

intoxicating liquor or drugs, under Arizona Revised Statutes ("A.R.S.") 

 

1 Upon review, we view the facts in the light most favorable to 

sustaining the jury's verdicts and resolve all inferences against Miller. State 

v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998).
STATE v. MILLER

Decision of the Court

3

sections 28-1381(A)(1), (A)(2) (2016), -1383(A)(1), (A)(2) (2016).

2 The court 

sentenced Miller to four months' incarceration with 88 days of presentence 

incarceration credit, to be followed by five years' probation.

¶3 Miller timely appealed. We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-

120.21(A)(1) (2016), 13-4031 (2016) and -4033 (2016).

DISCUSSION

¶4 The record reflects Miller received a fair trial. He was 

represented by counsel at all stages of the proceedings against him. The 

court allowed counsel to waive Miller's presence at two pretrial hearings,

where it granted Miller's motion to continue and instructed Miller's counsel 

to submit affidavits signed by Miller acknowledging waiver of time and 

pending court dates. Miller also failed to appear at an evidentiary hearing 

on his motion to dismiss. The court properly found that Miller voluntarily 

absented himself from that hearing. Under Arizona Rule of Criminal 

Procedure 9.1, "a defendant may waive the right to be present at any 

proceeding by voluntarily absenting himself or herself," and "[t]he court 

may infer that an absence is voluntary if the defendant had personal notice 

of the time of the proceeding, the right to be present at it, and a warning 

that the proceeding would go forward in his or her absence should he or 

she fail to appear." Ariz. R. Crim. P. 9.1. Miller was present when the court 

announced the date for the evidentiary hearing, Miller's counsel informed 

the court that he had spoken with Miller the day before and had expected 

Miller at the hearing, and Miller had been informed at two prior status 

conferences that if he failed to appear, a warrant could be issued and the 

trial could take place in his absence.

¶5 The court held appropriate pretrial hearings. It did not 

conduct a voluntariness hearing; however, the record did not suggest a 

question about the voluntariness of Miller's statements to police. See State 

v. Smith, 114 Ariz. 415, 419 (1977); State v. Finn, 111 Ariz. 271, 275 (1974).

¶6 The State presented both direct and circumstantial evidence 

sufficient to allow the jury to convict. The jury was properly comprised of 

eight members and two alternates. The court properly instructed the jury 

on the elements of the charges, the State's burden of proof and the necessity 

of a unanimous verdict. The jury returned a unanimous verdict, which was 

 

2 Absent material revision after the date of an alleged offense, we cite 

a statute's current version.
STATE v. MILLER

Decision of the Court

4

confirmed by juror polling. The court received and considered a 

presentence report, addressed its contents during the sentencing hearing 

and imposed a legal sentence for the crimes of which Miller was convicted.

CONCLUSION

¶7 We have reviewed the entire record for reversible error and 

find none, and therefore affirm the convictions and resulting sentences. See 

Leon, 104 Ariz. at 300.

¶8 After the filing of this decision, defense counsel's obligations 

pertaining to Miller's representation in this appeal have ended. Defense 

counsel need do no more than inform Miller of the outcome of this appeal 

and his future options, unless, upon review, counsel finds "an issue 

appropriate for submission" to the Arizona Supreme Court by petition for 

review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). On the court's 

own motion, Miller has 30 days from the date of this decision to proceed, if 

he wishes, with a pro per motion for reconsideration. Miller has 30 days 

from the date of this decision to proceed, if he wishes, with a pro per petition 

for review.