State v. Madison

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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. PHILIP JERELL MADISON, Appellant. ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 01/19/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 08-0548 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-141739-001 DT The Honorable Jeanne M. Garcia, Judge AFFIRMED Terry Goddard, Attorney General Phoenix By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Susanne Bartlett Blomo, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Karen M. Noble, Deputy Public Defender Attorneys for Appellant B A R K E R, Judge Phoenix ¶1 Philip disorderly Jerell conduct, a Madison appeals dangerous insufficiency of the evidence. his offense, conviction on the for ground of Specifically, he argues that the State failed to offer sufficient evidence that the persons in another vehicle were in repose before he displayed a handgun, that display of the handgun actually disturbed their peace, and that display of a handgun in a vehicle on Arizona highways would disturb a reasonable person s peace. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") §§ 12-120.21(A)(1) (2030), 13-4031 (2001), and 13-4033(A)(1) (Supp. 2009). Discussion ¶2 Madison s arguments stem from a misunderstanding of the elements of the offense of disorderly conduct. Madison was charged with disorderly conduct for intentionally or knowingly disturb[ing] the peace or quiet of a neighborhood, family, or person, by recklessly handling, displaying, or discharging a handgun, conduct allegedly arising during a road rage incident on June 27, 2007. The jury convicted Madison of the charged offense and found it to be a dangerous offense. 1 disorderly conduct requires that a person, The offense of with intent to disturb the peace or quiet of a neighborhood, family or person, 1 The judge sentenced Madison to 1.5 years in prison, and Madison timely appealed. 2 or with knowledge of doing so . . . [r]ecklessly . . . displays . . . a deadly weapon. convict required Madison to of prove, A.R.S. § 13-2904(A)(6) (2001). disorderly conduct, the as argues, that Madison State To was either not of the occupants of the other vehicle were at peace or in repose when he displayed the handgun, or that the display actually disturbed their peace. Madison s reliance on Maricopa County Juvenile Action No. JV133051, 184 Ariz. 473, 910 P.2d. 18 (App. 1995), overruled by State v. Miranda, 200 Ariz. 67, 22 P.3d 506 (2001), is misplaced. That case held that a conviction for disorderly conduct requires a finding that the victim was at peace when the conduct occurred. See id. at 475, 910 P.2d at 20. In Miranda, our supreme court held that the statute does not require that one actually disturb the peace of another through certain acts, but rather requires the commission of certain acts with intent to disturb the peace . . . or with knowledge of doing so. Miranda, 200 Ariz. at 69, ¶ 5, 22 P.3d at 508. The court further held that insofar as our holding is inconsistent with those of the court of appeals in In re JV133051 and Cutright, 2 we expressly disapprove those opinions. Id. the express direction of In accordance with Miranda, the State was required to prove in pertinent part only that Madison recklessly displayed a 2 State v. Cutright, 196 Ariz. 567, 2 P.3d 657 (App. 1999). 3 handgun, with the intent to disturb the peace of another person, or with knowledge of doing so. ¶3 See id. 3 In reviewing the sufficiency of evidence, we view the evidence in the light most favorable to upholding the jury's verdict and resolve conflicting evidence against the defendant. State v. (1983). Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 Credibility determinations are for the factfinder, not this court, see State v. Dickens, 187 Ariz. 1, 21, 926 P.2d 468, 488 (1996), and no distinction exists between circumstantial and direct evidence. State v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993). To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury. State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). 4 ¶4 Viewing the evidence in the light most favorable to upholding the conviction, the conviction for disorderly conduct. record supports Madison s The driver of the other 3 Contrary to Madison s argument, the term neighborhood as used in this statute has its ordinary meaning, which has no applicability to these facts. See State v. Johnson, 112 Ariz. 383, 385, 542 P.2d 808, 810 (1975). 4 Madison also mentions the risk of duplicitous indictments, a resulting non-unanimous jury verdict, and statutory vagueness issues that he did not raise below and does not clearly raise on appeal. We accordingly construe these claims as abandoned and waived. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989). 4 vehicle, a tow truck, testified she was driving onto I-17 on June 27, 2007, sideswipe her at about vehicle 10:30 and p.m. vehicle and hit the brakes. Madison drove repeatedly when in tried front of to her She further explained that while Madison was driving to the right of her vehicle, he pointed a gun at her and her passenger through the open driver s side window. She told the jury she was scared when she saw the handgun. An officer who interviewed her immediately after the incident said she told him that she felt very threaten[ed] and that she thought that he might actually shoot. Her passenger confirmed that Madison kept braking in front of their vehicle and pointed a black semiautomatic at them when he was beside them. He testified that he got scared when Madison pointed the gun at him. The driver called 9-1-1 to report that Madison had pointed a gun at them. handgun although under the Madison Police found a black semiautomatic driver s-side denied seat pointing it in at Madison s the other vehicle, vehicle, explaining that his vehicle windows were tinted. ¶5 A reasonable evidence that occupants of Madison the other jury could recklessly vehicle, have concluded pointed intending the to gun on at disturb this the their peace, or with full knowledge that he was disturbing their peace by doing so. so accepted We reject Madison s argument that gun ownership is in this State that 5 a person of ordinary sensitivities driving the Arizona highways disturbed by having a gun pointed at them. might not be We find that the jury could reasonably have inferred that disturbing the peace was precisely Madison s intent in occupants of the other vehicle. pointing the gun at the On this record, the jury had more than sufficient evidence to convict Madison of disorderly conduct. Conclusion ¶6 For the foregoing reasons, we affirm Madison s conviction and sentence. /s/ __________________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ PATRICIA K. NORRIS, Presiding Judge /s/ ___________________________________ PETER B. SWANN, Judge 6

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