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Feb. 27, 2026 Get Citation Alerts Download PDF Add Note

State v. Schwan

Court of Appeals of Arizona

• Citations: None known
• Docket Number: 1 CA-CR 24-0621

• Precedential Status: Non-Precedential

• Opinion

• Authorities (6)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.6K)

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Combined Opinion

                        by Andrew M. Jacobs

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RICHARD JAMES SCHWAN, Appellant.

No. 1 CA-CR 24-0621
FILED 02-27-2026

Appeal from the Superior Court in Yavapai County
No. S1300CR202380380
The Honorable Krista M. Carman, Judge

AFFIRMED

COUNSEL

Mendoza/Jakobe Law LLC, Phoenix
By Carissa A. Jakobe
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

MEMORANDUM DECISION

Presiding Judge Andrew M. Jacobs delivered the decision of the Court, in
which Judge Brian Y. Furuya and Judge James B. Morse Jr. joined.
STATE v. SCHWAN
Decision of the Court

J A C O B S, Judge:

¶1 This appeal is filed in accordance with Anders v. California, 386
U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Counsel for Richard
Schwan has advised this Court that she found no arguable questions of law
and asks us to search the record for fundamental error. Schwan was
convicted of two counts of aggravated driving under the influence with a
suspended driver’s license. Schwan was given an opportunity to file a
supplemental brief but has not done so. After reviewing the record, we
affirm Schwan’s convictions and sentences.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining the
convictions and resolve all reasonable inferences against Schwan. See State
v. Fontes, 195 Ariz. 229, 230 ¶ 2 (App. 1998).

A. Officers Arrest Schwan and Investigate Whether He Was
Intoxicated.

¶3 On July 17, 2023, two officers of the Camp Verde Marshal’s
Office responded to 911 calls from an RV community reporting someone
allegedly violating a court order of protection and expressing a desire to
commit “suicide by cop.” Upon arrival, the officers spoke with two
witnesses, one of whom identified Schwan as the subject of the 911 calls and
the driver of a vehicle moving through the RV community. The officers
chased the vehicle and ordered the driver to stop and exit, which he did.
They confirmed Schwan was the driver after he furnished his driver’s
license. Schwan admitted driving the vehicle.

¶4 As the officers spoke with Schwan and witnesses, they
learned Schwan was never served with the order of protection, so they had
it brought to the scene and served it. They also called mental health
professionals from Spectrum Healthcare.

¶5 While waiting for Spectrum personnel to arrive, the officers
talked to Schwan. They noticed indicators of intoxication, including mood
swings, lack of balance, slurred speech, and disheveled appearance.
Schwan also told them he had been drinking earlier in the day. When
Schwan asked for cigarettes from the vehicle and let officers retrieve them,
the officers saw empty bottles of alcohol on the passenger-side floor of the
vehicle.

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STATE v. SCHWAN
Decision of the Court

¶6 After Spectrum personnel arrived and then left, the officers
conducted a “basic DUI investigation,” including “standardized field
sobriety tests” and a “horizontal gaze nystagmus” (HGN) test. Observing
those tests, the officers concluded Schwan exhibited signs of intoxication
and arrested him for DUI. At the Marshal’s Office, one officer used an
Intoxilyzer 8000 to conduct two breathalyzer tests on Schwan. One test was
aborted after the officer misread the results, but the second test revealed
Schwan’s blood alcohol content was over .08.

B. Schwan Is Represented During Pre-Trial Proceedings.

¶7 The state charged Schwan with two counts of aggravated
driving under the influence with a suspended license — one count for
intoxication to the slightest degree, and one count for BAC of .08 or more.
The state also alleged one aggravating circumstance: that Schwan
committed the two DUI offenses while on probation for conviction of a
prior felony DUI offense.

¶8 Schwan appeared and was represented at his bail eligibility
hearing, early disposition court proceedings, arraignment, and all other
pre-trial conferences and hearings. He was present and represented at a
Rule 17.4 settlement conference/Donald advisement, where he received and
rejected the state’s plea offer.1 He was present and represented at the
evidentiary hearing on his motion to suppress certain evidence he alleged
was obtained via his illegal seizure. And he was present and represented
when the court held a Rule 609 impeachment hearing and a voluntariness
hearing related to statements he made to the officers.

C. Trial

1. Counts 1 and 2 — Aggravated Driving Under the Influence While License Suspended

¶9 Schwan’s trial on counts 1 and 2 began on August 14, 2024,
and lasted through October 16, 2024. Schwan appeared and was
represented by counsel throughout.

¶10 The state presented the testimony of Cody Fant and Joseph
Van Horn, the responding officers of the Camp Verde Marshal’s Office.
Their testimony established that Schwan: was driving a vehicle; showed

1 A Donald advisement is an on-the-record determination that a defendant

has been advised of any proposed plea agreement, its terms and potential
consequences. See State v. Donald, 198 Ariz. 406, 413 ¶ 14 (App. 2000).

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STATE v. SCHWAN
Decision of the Court

signs of intoxication; failed certain field sobriety tests; stated he had been
drinking; was arrested for DUI; and was administered two breathalyzer
tests, the second of which showed blood alcohol content over .08. Daniel
Jacobs, a Quality Assurance Specialist with the Camp Verde Marshal’s
Office, testified Schwan’s second breathalyzer test showed a BAC between
.157 and .175. To demonstrate the accuracy of the test, the state called Erin
Boone, a forensic scientist with the Toxicology Unit of the Arizona
Department of Public Safety Crime Lab. She testified the Intoxilyzer 8000
was functioning properly and produced accurate results. She also testified
that, based on her retrograde analysis from the time of the breathalyzer test,
Schwan’s BAC was between .172 and .202 within two hours of driving.
Finally, the state called Gerald Yocum, a custodian of records for the
Arizona Department of Transportation. Yocum testified Schwan’s notice of
the suspension of Schwan’s license was mailed to him on February 17, 2023,
and that the license remained suspended on July 17, 2023.

¶11 The jury found Schwan guilty of both counts.

1. Phase 2 — Aggravating Circumstance

¶12 The court then proceeded to the second phase of the trial,
where the state alleged the aggravating circumstance that Schwan
committed his offenses while on probation for a prior felony conviction.
Kathryn Adams, a Senior Probation Officer for Yavapai County, testified
Schwan was convicted of a 2015 felony, that his probation became
unsupervised in 2018 and was ongoing on July 17, 2023, and that she was
responsible for overseeing his probation. She also testified Schwan signed
court documents outlining the terms of his probation, including its length.
The jury unanimously found the aggravating circumstance.

1. Hearing on Prior Convictions

¶13 The court next held a hearing on Schwan’s alleged prior
felony convictions. Susan Moore, an evidence technician in the Yavapai
County Sheriff’s Office trained to analyze court documents and
fingerprints, testified that court documents from four prior felony
convictions contained fingerprints matching Schwan’s. The court found the
four prior offenses proven, making Schwan a Category 3 offender.

1. Sentencing

¶14 The court conducted the sentencing hearing in compliance
with Schwan’s constitutional rights and Arizona Rule of Criminal
Procedure 26. The court sentenced Schwan to two concurrent ten-year

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STATE v. SCHWAN
Decision of the Court

sentences (with 469 days credit) for the 2023 DUI offenses, the presumptive
terms under the Criminal Code Sentencing Chart, and to 2 years supervised
probation (with 159 days credit) for violating the terms of his probation
from his 2015 felony conviction. The court also imposed financial sanctions:
a $65.00 per month probation fee, a $20.00 time payment fee, a $25.00
attorney fee, a $20.00 probation assessment fee, a $13.00 crime penalty
assessment, $2.00 and $9.00 victims’ rights assessments, an aggravated DUI
fine of $750.00 plus a 79 percent surcharge, a $1,500.00 prison construction
fee, a $1,500.00 public safety equipment fund, a $4.00 peace officer training
equipment fund assessment, and a $250.00 DUI abatement charge.

DISCUSSION

¶15 We review Schwan’s convictions and sentences for
fundamental error. See State v. Flores, 227 Ariz. 509, 512 ¶ 12 (App. 2011).
Counsel for Schwan has advised this Court that after a diligent search of
the entire record, counsel has found no arguable questions of law. We have
read and considered counsel’s brief and fully reviewed the record for
reversible error, see Leon, 104 Ariz. at 300, and find none. All of the
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure. So far as the record reveals, counsel represented
Schwan at all stages of the proceedings, and the sentences imposed were
within the statutory guidelines. We decline to order briefing and affirm
Schwan’s convictions and sentences.

CONCLUSION

¶16 We affirm. Upon the filing of this decision, defense counsel
shall inform Schwan of the status of the appeal and of his future options.
Counsel has no further obligations 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). Schwan shall
have thirty days from the date of this decision to proceed, if he desires, with
a pro per motion for reconsideration or petition for review.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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