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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

ELIAS RAMIREZ CRUZ, 

Appellant. 

No. 1 CA-CR 15-0035 

 

Appeal from the Superior Court in Maricopa County 

No. 2014-126667-001 

The Honorable Charles Donofrio, III, Judge Pro Tempore

AFFIRMED 

COUNSEL 

Arizona Attorney General’s Office, Phoenix 

By Joseph T. Maziarz 

Counsel for Appellee 

Michael J. Dew, Phoenix 

Counsel for Appellant
STATE v. CRUZ 

Decision of the Court 

2 

MEMORANDUM DECISION 

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

Presiding Judge Margaret H. Downie and Judge Maurice Portley joined. 

O R O Z C O, Judge: 

¶1 Elias Ramirez Cruz (Defendant) appeals his convictions and 

the resulting sentences for two counts of aggravated driving under the 

influence, both class four felonies. Pursuant to Anders v. California, 386 U.S. 

738 (1967) and State v. Leon, 104 Ariz. 297 (1969), Defendant’s counsel has 

filed a brief indicating he searched the entire record, found no arguable 

question of law, and asked this court to review the record for fundamental 

error. Defendant was given the opportunity to file a supplemental brief in 

propria persona, and he has done so. For the following reasons, we affirm. 

FACTS AND PROCEDURAL HISTORY 

¶2 On June 3, 2014, T.H. was inside his house when he heard a 

vehicle skid followed by a “big crash.” T.H. ran outside and when he 

arrived at the scene of the accident a few seconds later, he observed that a 

truck had rolled over with Defendant pinned underneath. Defendant 

crawled out from under the truck and began to walk down the street with 

T.H. following him. When T.H. asked Defendant if he was all right, 

Defendant replied that he was fine, and told T.H. to “get away from me.” 

¶3 T.H. waved down a police officer and pointed towards 

Defendant, who by then had hidden behind a nearby apartment gate code 

call box. Defendant was wearing only one shoe when the officer found him. 

Soon thereafter, officers discovered Defendant’s missing shoe pinned 

between the truck’s emergency brake arm and the brake pedal, and only 

the driver-side airbag had deployed. Officers did not find any evidence 

indicating that anyone else was in the truck. 

¶4 Later that night at the hospital, Phoenix Police Officer J. Tobey 

observed Defendant vomit and noticed that it smelled strongly of beer. 

Officer Tobey also observed Defendant to have bloodshot, watery eyes and 

an abrasion on Defendant’s left shoulder, which he testified was consistent 

with a “top left to bottom right” seatbelt. 
STATE v. CRUZ 

Decision of the Court 

3 

¶5 Defendant was charged with two counts of aggravated 

driving. Count one alleged aggravated driving while under the influence 

of an intoxicating liquor or drug. Count two alleged aggravated driving 

while with a drug and/or drug metabolite in Defendant’s body.1 

¶6 At trial, the parties stipulated that at the time of the accident, 

Defendant’s blood alcohol content was .028 percent and Defendant had 

methamphetamine and amphetamine in his blood. The parties also 

stipulated that at the time of the accident, Defendant’s license to drive was 

revoked and he knew or should have known that his license was revoked. 

¶7 The jury found Defendant guilty of both counts of aggravated 

driving and he was sentenced to 4.5 years’ incarceration for each count, to 

run concurrently. 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, 13-4031, and -4033.A.1. 

(West 2015).2 Finding no reversible error, we affirm. 

DISCUSSION 

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

favorable to sustaining the conviction.” State v. Tison, 129 Ariz. 546, 552 

(1981). All reasonable inferences are resolved against the defendant. Id. A 

reversal of a conviction based on insufficiency of evidence requires a clear 

showing that there is not sufficient evidence to support the jury’s 

conclusion under any hypothesis whatsoever. State v. Williams, 209 Ariz. 

228, 231, ¶ 6 (App. 2004) (noting that it is the jury’s function, not the court 

of appeals, to weigh the evidence and to determine credibility). 

¶9 Under A.R.S. § 28-1381.A.1: 

It is unlawful for a person to drive or be in actual physical 

control of a vehicle in this state . . . [w]hile under the influence 

of intoxicating liquor, any drug, a vapor releasing substance 

containing a toxic substance or any combination of liquor, 

drugs or vapor releasing substances if the person is impaired 

to the slightest degree. 

 

1 In addition, Defendant was charged with one count of leaving the 

scene of an accident, which the State dismissed at trial. 

2 We cite the current version of applicable statutes when no revisions 

material to this decision have since occurred. 
STATE v. CRUZ 

Decision of the Court 

4 

¶10 Under A.R.S. § 28-1383.A.1: 

A person is guilty of aggravated driving or actual physical 

control while under the influence of intoxicating liquor or 

drugs if the person . . . [c]ommits a violation of § 28-1381 . . . 

while the person’s driver license or privilege to drive is 

suspended, canceled, revoked or refused or while a restriction 

is placed on the person’s driver license or privilege to drive as 

a result of violating [A.R.S.] § 28-1381. 

¶11 The State must also prove that “the driver either knew or 

should have known that his license was suspended, canceled, revoked or 

refused.” State v. Freeland, 176 Ariz. 544, 550 (App. 1993). “Aggravated 

driving or actual physical control while under the influence of intoxicating 

liquor or drugs committed under . . . [A.R.S. § 28-1381.A.1] . . . is a class 4 

felony.” A.R.S. § 28-1383.L.1. 

¶12 Based on the parties’ stipulations and the evidence 

presented at trial, the state presented sufficient evidence to support the 

jury’s verdicts. 

¶13 At the sentencing hearing, Defendant admitted to a prior 

conviction in 2005 for aggravated driving under the influence, a class four 

felony. Because of this prior felony, Defendant was a category two 

repetitive offender under A.R.S. § 13-703.B, with one aggravating 

circumstance under A.R.S. § 13-701.D.11.3 Therefore, pursuant to A.R.S. 

§ 13-703.I, Defendant’s presumptive sentence was four and a half years’ 

imprisonment. The trial court properly considered Defendant’s prior 

conviction and sentenced Defendant to the presumptive term of four and a 

half years for each count. See Ariz. R. Crim. P. 26.13. The trial court also 

credited Defendant for 226 days of presentence incarceration. Because the 

trial court properly calculated Defendant’s sentence and credited him the 

correct number of days, the sentence was legal. 

¶14 In his pro per supplemental brief, Defendant argued that 

“[d]efense counsel ineffectively represented [Defendant] in not 

investigating or checking facts and evidence.” We will not consider claims 

of ineffective assistance of counsel on direct appeal regardless of merit. 

State ex rel. Thomas v. Rayes, 214 Ariz. 411, 415, ¶ 20 (2007); State v. Spreitz, 

 

3 Defendant’s prior historical felony conviction occurred within the 

ten years immediately preceding the date of this offense. 
STATE v. CRUZ 

Decision of the Court 

5 

202 Ariz. 1, 3, ¶ 9 (2002). Such claims must be first presented to the trial 

court in a petition for post-conviction relief. Rayes, 214 Ariz. at 415, ¶ 20. 

CONCLUSION 

¶15 We have read and considered counsel’s brief. We have 

carefully searched the entire appellate record for reversible error and have 

found none. See State v. Clark, 196 Ariz. 530, 541, ¶ 49 (App. 1999). All of 

the proceedings were conducted in compliance with the Arizona Rules of 

Criminal Procedure. We find substantial evidence supported the jury’s 

guilty verdicts. Defendant was represented by counsel at all critical stages 

of the proceedings. At sentencing, Defendant and his counsel were given 

an opportunity to speak, and the court imposed a legal sentence. For the 

foregoing reasons, Defendant’s convictions and the sentences imposed are 

affirmed. 

¶16 Counsel’s obligations pertaining to Defendant’s 

representation in this appeal have ended. See State v. Shattuck, 140 Ariz. 582, 

584 (1984). Counsel need do nothing 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 id. at 585. Defendant shall have thirty days from 

the date of this decision to proceed, if he so desires, with an in propria 

persona motion for reconsideration or petition for review. 

¶17 For the foregoing reasons, Defendant’s convictions and 

sentences are affirmed.