NOTICE: NOT FOR PUBLICATION. 

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE 

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE 

ARIZONA COURT OF APPEALS DIVISION ONE

STATE OF ARIZONA, Appellee, 

v.

MANUEL DURAN, JR., Appellant. 

No. 1 CA-CR 13-0191 

 

Appeal from the Superior Court in Maricopa County 

No. CR2011-143387-002 

The Honorable Karen A. Mullins, Judge 

AFFIRMED AS CORRECTED 

COUNSEL 

Arizona Attorney General’s Office, Phoenix 

By Joseph T. Maziarz 

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix 

By Cory Engle 

Counsel for Appellant 
State v. Duran 

Decision of the Court 

2 

MEMORANDUM DECISION 

Presiding Judge Patricia A. Orozco delivered the decision of the Court, in 

which Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined. 

OROZCO, Judge: 

¶1 Manuel Duran, Jr. (Defendant) appeals his convictions and 

sentences for (1) aggravated driving or actual physical control while 

impaired by alcohol drugs, inhalants, or any combination thereof; (2) 

aggravated driving or actual physical control while there is any drug or 

metabolite in the person’s body; and (3) possession or use of marijuana. 

¶2 Defendant’s counsel filed a brief in accordance with Anders 

v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 

878 (1969), advising this court that after a search of the entire appellate 

record, he found no arguable question of law that was not frivolous. 

Defendant was afforded the opportunity to file a supplemental brief in 

propria persona, but has not done so. See State v. Clark, 196 Ariz. 530, 537, 

¶ 30, 2 P.2d 89, 96 (App. 1999). 

¶3 Our obligation in this appeal is to review “the entire record 

for reversible error.” Id. Finding no reversible error, we affirm 

Defendant’s convictions and sentences but modify Defendant’s sentence 

to omit the requirement that he pay for the cost of DNA testing. 

FACTS AND PROCEDURAL HISTORY 

¶4 On August 21, 2011, at approximately 11:30 p.m., City of 

Phoenix Police Officer Justin L. (Officer L.) was on duty and observed a 

vehicle fail to stop at a red traffic light, make a very wide turn crossing 

into opposing traffic, make several erratic lane changes, and have 

difficulty staying in one lane of travel. Officer L. stopped the vehicle. 

¶5 As Officer L. approached the vehicle, he smelled marijuana 

emanating from the vehicle. Officer L. also noticed the driver’s hands 

were shaking, his eyes were bloodshot and watery, and his face had a 

glazed and blank expression. When asked for his identification, 

Defendant presented Officer L. with an Arizona identification card and 

immediately mentioned he would be obtaining a driver’s license the 
State v. Duran 

Decision of the Court 

3 

following Monday. Officer L. later verified that Defendant’s driver’s 

license was suspended at the time of the stop. 

¶6 Upon questioning by Officer L., Defendant admitted that he 

had smoked marijuana two hours before being stopped. As Defendant 

exited the vehicle, Officer L. noticed Defendant had poor balance and 

there was a “green-leafy substance” on the bottom of his shirt in the crotch 

area that Officer L. identified as marijuana. 

¶7 Officer L. searched the vehicle. Inside the vehicle, he found 

a partially smoked marijuana cigarette on the floor in front of the 

passenger seat, which Defendant spontaneously admitted to having 

thrown on the floor because he was “scared.” Officer L. performed field 

sobriety tests on Defendant. Defendant showed multiple cues of 

impairment in each of the administered tests. Officer L. then arrested 

Defendant. 

¶8 At the police station, Defendant consented to various tests, 

including a drug recognition exam and a blood draw. As part of the drug 

recognition exam, Defendant underwent a portable breath test, which 

registered at zero. Based on the results of the tests, Officer L.’s 

observations, and his own observations of Defendant, the administering 

officer concluded Defendant was under the influence of marijuana. 

Although the results of the blood draw tested indicated Defendant tested 

positive for marijuana and cocaine metabolite, the trial court struck incourt testimony regarding the marijuana testing; and instructed the jury to 

disregard the testimony regarding that portion of the test results. A lab 

test of the partially smoked cigarette confirmed the cigarette contained 

marijuana, in a usable amount. 

¶9 Defendant was charged with: (1) aggravated driving or 

actual physical control while under the influence of intoxicating liquor or 

drugs while his driver’s license or privilege to drive was suspended, 

cancelled, revoked or refused, a class four felony; (2) aggravated driving 

or actual physical control with any drug or metabolite in the person’s 

body while his driver’s license or privilege to drive was suspended, 

cancelled, revoked or refused, a class four felony; and (3) possession or 

use of marijuana, a class six felony. Shortly after his indictment, the State 

filed motions alleging Defendant had historical priors and committed the 

instant offenses while on probation. 

¶10 Defendant failed to appear for trial and was tried in 

absentia. The trial court found that Defendant was aware of the trial date, 
State v. Duran 

Decision of the Court 

4 

and as such, waived his presence. The trial court instructed potential 

jurors that it was Defendant’s right to be absent from the proceeding and 

his absence should not be a factor when deciding the case. 

¶11 A jury found Defendant guilty on all counts. At sentencing, 

the trial court found Defendant had a prior felony conviction for 

solicitation to commit burglary in the third degree, a class six, nondangerous felony. The trial court sentenced Defendant to the 

presumptive sentence of four-and-one-half years’ imprisonment for 

counts one and two, to be served concurrently. Moreover, the trial court 

ordered Defendant to serve a consecutive term of probation as to count 

three. Defendant received 105 days of presentence incarceration credit. 

Additionally, the trial court ordered Defendant to submit to DNA testing 

and required him to pay the cost of the testing. 

¶12 Defendant timely appealed. We have jurisdiction pursuant 

to Article 6, Section 9, of the Arizona Constitution and Arizona Revised 

Statutes (A.R.S.) sections 12-120.21.A.1 (2003), 13-4031, and 

-4033.A.1 (2010). 

DISCUSSION 

¶13 We review the sufficiency of the evidence “in the light most 

favorable to sustaining the conviction . . . .” State v. Tison, 129 Ariz. 546, 

552, 633 P.2d 355, 361 (1981). Any reasonable inferences are resolved 

against the defendant. Id. A reversal of a conviction based on 

insufficiency of the evidence requires a clear showing that there is not 

sufficient evidence to support the jury’s conclusions, under any 

hypothesis whatsoever. State v. Williams, 209 Ariz. 228, 231, ¶ 6, 99 P.3d 

43, 46 (App. 2004) (stating that we will not substitute our judgment for 

that of the jury). 

I. Count One: Aggravated Driving While Under the Influence 

¶14 To obtain a conviction on this count, the State needed to 

prove: (1) Defendant was driving or in actual physical control of a 

vehicle; (2) under the influence of alcohol or any drug; and (3) impaired to 

slightest degree; (4) while his driver’s license was suspended. See A.R.S. 

§§ 28-1381.A.1 (2012) and -1383.A.1 (Supp. 2013). 

¶15 Sufficient evidence was presented to prove the first element 

because Defendant was in the driver’s seat when Officer L. pulled over 

Defendant’s vehicle. Likewise, the second and third elements were 

established by the evidence. Officer L. testified that, when he stopped 
State v. Duran 

Decision of the Court 

5 

Defendant’s vehicle, Defendant’s hands were shaking, his eyes were 

bloodshot and watery, and he had a blank expression. At the police 

station, during a drug recognition test, Defendant displayed several signs 

that he was under the influence of a drug and had been driving while he 

was impaired to the slightest degree. Moreover, Defendant admitted he 

was impaired. 

¶16 The fourth element was met because the State called an 

employee from the Arizona Department of Motor Vehicles who testified 

that Defendant’s license was suspended at the time he was stopped. 

¶17 Thus, we find sufficient evidence supports the jury’s verdicts 

as to count one. 

II. Count Two: Aggravated Driving While Under the Influence 

¶18 Under count two, the State was required to prove: (1) 

Defendant was driving or in actual physical control of a vehicle, (2) while 

any drug or metabolite was in his body; (3) while his license was 

suspended. See id. §§ 28-1381.A.3 (2012) and -1383.A.1. As discussed 

above, sufficient evidence supports the jury’s verdicts as to the first and 

third elements of the offense. For this count, however, the jury needed to 

make a separate finding that Defendant was driving with an impairing 

drug or metabolite in his body. See State ex rel. Montgomery v. Harris 

(Harris), 234 Ariz. 343, 347, ¶ 24, 322 P.3d 160, 164 (2014) (“we hold that 

the ‘metabolite’ reference in § 28-1281(A)(3) is limited to any of a 

proscribed substance’s metabolites that are capable of causing 

impairment.”). 

¶19 In this case, the jury heard evidence that based on the results 

from Defendant’s blood drawn at the time of his arrest, Defendant tested 

positive for cocaine metabolite. Moreover, the jury also heard testimony, 

as discussed above, regarding Defendant’s appearance and behavior. 

¶20 Thus, we find sufficient evidence supports the jury’s verdicts 

as to count two. 

III. Count Three: Possession or Use of Marijuana 

¶21 For count three, the State was required to prove Defendant 

knowingly possessed or used marijuana at the time of arrest. A.R.S. § 13-

3405.A.1 (Supp. 2013). The jury heard testimony from an officer who 

examined the cigarette found in Defendant’s vehicle at the time he was 
State v. Duran 

Decision of the Court 

6 

stopped. The officer explained an examination indicated the cigarette was 

a marijuana cigarette of a usable amount. 

¶22 Thus, we find sufficient evidence supports the jury’s verdicts 

as to count three. 

IV. Sentencing Correction 

A. Order Requiring DNA Testing 

¶23 The court ordered Defendant to submit to DNA testing and 

pay the cost of the testing pursuant to A.R.S. § 13-610 (Supp. 2013). While 

§ 13-610.A authorizes the department of corrections to “secure a sufficient 

sample of blood or other bodily substances for [DNA] testing,” the statute 

does not identify who should incur the costs of testing. See, e.g., State v. 

Reyes, 232 Ariz. 468, 471, ¶ 9, 307 P.3d 35, 38 (App. 2013). 

¶24 Although Defendant could be fined as part of his sentence, 

the trial court’s order that Defendant pay the DNA testing fee was not a 

fine under § 13-801.A for the commission of felonies. See id. at 472, ¶ 13, 

307 P.3d at 39. Because § 13-610 does not require Defendant to incur the 

cost of the DNA testing, there is no basis for the cost to be imposed. See id.

at ¶ 14. Accordingly, we vacate the portion of the sentencing order 

requiring Defendant to pay for DNA testing. 

B. Presentence Incarceration 

¶25 Our calculations indicate Defendant’s credit for presentence 

incarceration should have been 102 days. The record before us indicates 

that, prior to sentencing Defendant was incarcerated from November 19, 

2012, through March 1, 2013. We find the trial court erred in calculating 

Defendant’s presentence incarceration credit that resulted in Defendant 

receiving a windfall of two days. However, because the State failed to 

appeal this issue, we will not disturb the sentence imposed by the court. 

State v. Dawson, 164 Ariz. 278, 282, 792 P.2d 741, 745 (1990). 

CONCLUSION 

¶26 We have read and considered counsel’s brief and have 

searched the entire record for reversible error. See Leon, 104 Ariz. at 300, 

451 P.2d at 881. We find none. All of the proceedings were conducted in 

compliance with the Arizona Rules of Criminal Procedure. Defendant 

was represented by counsel at all critical stages of the proceedings and 

was given an opportunity to speak before sentencing. The sentences 
State v. Duran 

Decision of the Court 

7 

imposed were within the statutory limits. Furthermore, based on our 

review of the record before us, substantial evidence supports the jury’s 

verdicts. 

¶27 Counsel’s obligations pertaining to Defendant’s 

representation in this appeal have ended. Counsel need do no more than 

inform Defendant of the status of the appeal and his future options, unless 

counsel’s review reveals an issue appropriate for submission to the 

Arizona Supreme Court by petition for review. See State v. Shattuck, 140 

Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant 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. Accordingly, 

Defendant’s convictions and sentences are affirmed as corrected.