State v. Matthew

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. AMANDA L. MATTHEW, Appellant. ) ) ) ) ) ) ) ) ) ) 1 CA-CR 08-0830 DIVISION ONE FILED: 12/03/09 PHILIP G. URRY,CLERK BY: DN DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2008-113889-001 SE The Honorable Connie Contes, Judge AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Aaron J. Moskowitz, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Karen M. V. Noble, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 Amanda L. Matthew appeals from her sentence for one count of aggravated assault. conviction and Matthew contends the superior court should have granted her motion for judgment of acquittal because the State failed to present substantial evidence she [k]nowingly touch[ed] Officer S. with the intent to injure, insult or provoke him as required by Arizona Revised Statutes ( A.R.S. ) section 13-1203(A)(3) (2001). Crim. P. 20. For the following reasons, we See Ariz. R. disagree with Matthew s argument, and affirm her conviction and sentence. FACTS AND PROCEDURAL BACKGROUND1 ¶2 On or about May 1, 2008, Matthew was inside the home of an acquaintance when she heard a commotion outside. Matthew walked out the front door and saw the acquaintance on the ground and bleeding, and several police officers on the premises. trial, Officer S. testified Matthew began to approach At the patrol car, very loud, demanding badge numbers for every officer that was there. agitated. until He described her demeanor as [v]ery upset, Officer S. told Matthew to stop, and to back up they were finished dealing with her acquaintance. According to Officer S., Matthew initially stopped, but then, She continued to come towards the car. She didn t listen to my commands, at which point I stepped out from the door. . . . She was walking towards the vehicle, animated, very boisterous. I walked up to her, put my hands on her shoulders, and I explained to her that we were going to address her concerns as soon as we were finished dealing 1 We view the facts in the light most favorable to sustaining the conviction and resolve all inferences against Matthew. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 with [her acquaintance]. She continued to try and walk past me, at which point I pushed back on her shoulders and escorted her back onto the property. . . . At that point she became upset, and she yelled at me, get your hand off me, and that s when she moved her right hand and struck my left hand and forearm. . . . At that point my arm came off her. I grabbed her right arm, I came behind her, and she was escorted to the ground. ¶3 Before Officer S. put both [of his] hands on her shoulders, he told Matthew to stay back from the officers three times. Each time she failed to comply. After escort[ing] Matthew to the ground, Officer S. arrested her. ¶4 The State charged Matthew with aggravated assault, a class six felony, because Officer S. had to take action to keep her from compromising our officers safe move. § 13-1204(A)(8)(a), (B) (Supp. 2008).2 the superior misdemeanor. court amended Matthew s See A.R.S. On the State s motion, charge to a class one At a bench trial, the superior court found Matthew guilty as charged, suspended imposition of sentence and ordered Matthew serve six months of supervised probation. ¶5 Matthew timely appealed her conviction and sentence. We have jurisdiction pursuant to Article 6, Section 9, of the 2 Although certain statutes cited in this decision were amended after the date of Matthew s offense, the revisions are immaterial. Thus, we cite to the current versions of these statutes. 3 Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (2003), 134031 (2001) and -4033 (Supp. 2008). DISCUSSION3 ¶6 Although Matthew contends she did not knowingly touch with the intent to provoke Officer S. as required by A.R.S. § 13-1203(A)(3), warrant the State conviction. provided First, substantial Officer S. s evidence testimony to Matthew struck or smacked him is evidence she knowingly touched him. See A.R.S. § 13-105(9)(b) (Supp. 2008) (effective January 1, 2009, this section is numbered § 13-105(10)(b)) ( [k]nowingly means . . . a person is aware or believes that the person s conduct is of that nature ). ¶7 to Second, Officer S. s testimony reflects Matthew acted provoke evoke, him. or Provoke [t]o bring means about [t]o stir to deliberately. Heritage Dictionary 1412 (4th ed. 2006). action, The to American Officer S. perceived [Matthew] smacked my hand to stop what he was doing with the other officers Matthew s and to boisterous compel him behavior and to deal failure with her to comply now. with Officer S. s commands also indicate she intended to provoke him. 3 We review the superior court s denial of a Rule 20 motion for an abuse of discretion. State v. Paris-Sheldon, 214 Ariz. 500, 510, ¶ 32, 154 P.3d 1046, 1056 (App. 2007). We will not reverse the superior court s denial of a motion for a judgment of acquittal unless there is a complete absence of probative facts supporting the defendant s conviction. State v. Johnson, 215 Ariz. 28, 29, ¶ 2, 156 P.3d 445, 446 (App. 2007). 4 See State v. Bearup, 221 Ariz. 163, __, ¶ 16, 211 P.3d 684, 688 (2009) (quoting State v. Routhier, 137 Ariz. 90, 99, 669 P.2d 68, 77 (1983)) ( [c]riminal intent, being a state of mind, is shown by circumstantial evidence. Defendant s conduct and comments are evidence of his state of mind ). ¶8 Although Matthew testified differently,4 the superior court was in the best position to resolve conflicting testimony. See State v. Lee, 217 Ariz. 514, 516, ¶ 10, 176 P.3d 712, 714 (App. 2008) (although the defendant s testimony contradicted the officers testimony on all of the key facts, it is the trier of fact s role, and not this court s, to resolve conflicting testimony and to weigh the credibility of witnesses. (quoting State v. Alvarado, 158 Ariz. 89, 92, 761 P.2d 163, 166 (App. 1998)). Given the officer s testimony, the State presented substantial evidence Matthew knowingly touched Officer S. with the intent to provoke him. See Bearup, 221 Ariz. __, ¶ 16, 211 P.3d at 688. 4 Matthew testified she never touched [Officer S.] or approached him. 5 CONCLUSION ¶9 For the foregoing reasons, we affirm Matthew s conviction and sentence. /s/ _______________________________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/ ____________________________________ SHELDON H. WEISBERG, Judge /s/ ____________________________________ MARGARET H. DOWNIE, Judge 6

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