State v. Cooper

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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. ) ) MICHAEL JAMES COOPER, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 11/30/10 RUTH WILLINGHAM, ACTING CLERK BY: DLL No. 1 CA-CR 09-0765 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-007839-001 DT The Honorable James T. Blomo, Judge Pro Tempore AFFIRMED Terry Goddard, Arizona Attorney General By Michael J. Mitchell, Assistant Attorney General Attorneys for Appellee Phoenix James Haas, Maricopa County Public Defender By Kathryn L. Petroff, Deputy Public Defender Attorneys for Appellant Phoenix B R O W N, Judge ¶1 sentences Michael James Cooper appeals from his convictions and for one count of discharge of a firearm at a residential structure and one count of drive-by shooting. For the following reasons, we affirm. BACKGROUND 1 ¶2 In October 2007, Cooper fired a gun at an occupied residence while he was riding in a car. When questioned by police, Cooper admitted firing a gun at a home he believed was the intended victim s. 2 The State charged Cooper with one count of discharge of a firearm and one count of drive-by shooting,3 both class two dangerous felonies. a third count of discharge of Cooper was also charged with a firearm at a residential structure, stemming from shots allegedly fired towards a second residence. ¶3 However, the State later dismissed that count. A jury found Cooper guilty of both counts. The trial court then sentenced him to concurrent mitigated prison terms of 8.5 years. This timely appeal followed. 1 We view the evidence in the light most favorable to sustaining the convictions. State v. Robles, 213 Ariz. 268, 270, ¶ 2, 141 P.3d 748, 750 (App. 2006). 2 Although the intended victim s residence was the target of the offense, evidence at trial revealed that the bullets entered a neighboring home. 3 The State charged Cooper pursuant to Arizona Revised Statutes ( A.R.S. ) sections 13-1211 and 13-1209 (2010), respectively. Absent material revisions after the date of an alleged offense, we cite the statute s current version. 2 DISCUSSION ¶4 Cooper argues he was wrongfully convicted of both discharge of a firearm and drive-by shooting, in violation of the Double Jeopardy Clause of the Fifth Amendment. See U.S. Const. amend. V (providing that no person shall be subject for the same [offense] limb ). court error. to be twice put in jeopardy of life or Cooper failed to raise this issue before the trial and therefore has forfeited review absent fundamental See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). constitutes fundamental A double jeopardy violation, however, error, and we assertion that such a violation occurred. review de novo an State v. Musgrove, 223 Ariz. 164, 167, ¶ 10, 221 P.3d 43, 46 (App. 2009). ¶5 The Double Jeopardy Clauses of the United States and Arizona Constitutions protect criminal defendants from multiple convictions and punishments for the same offense. State v. Ortega, 220 Ariz. 320, 323, ¶ 9, 206 P.3d 769, 772 (App. 2008). But double jeopardy is implicated only when the same act or transaction violates two distinct criminal statutes. State v. Eagle, 196 Ariz. 27, 31, ¶ 21, 992 P.2d 1122, 1126 (App. 1998). Multiple shots fired at the same time and place are considered separate acts. State v. Miranda, 198 Ariz. 427, 430, ¶ 17, 10 P.3d 1213, 1217 (App. 2000) (finding that defendant s multiple convictions did not violate the principles of double jeopardy 3 because defendant s three gun shots constituted three separate acts); see also State v. Singleton, 66 Ariz. 49, 57, 182 P.2d 920, 925 (1947) (stating that multiple gunshots are distinct and severable and therefore allow for prosecution of multiple offenses); State v. Devine, 150 Ariz. 507, 510, 724 P.2d 593, 596 (App. 1986) (finding that three assault convictions were proper where three assaults were committed on three separate victims). ¶6 Although not raised by the State, we conclude that Cooper s convictions do not violate the Double Jeopardy Clause because his convictions were not based on the same criminal act. See State v. Perez, 141 Ariz. 459, 464, 687 P.2d 1214, 1219 (1984) (holding that a reviewing court is obligated to affirm the trial court s ruling if the result was legally correct for any reason). Evidence was sufficient to allow the jury to find, beyond a reasonable doubt, that the defendant fired at least three shots. One witness testified she heard the sound of three backfires, which she later realized were gunshots. witnesses testified they heard approximately Two other five shots. Additionally, a police officer testified that five shell casings were found at the scene. Based on these facts, each shot fired by separate Cooper constituted a act for which he could be charged; thus, Cooper s convictions for discharge of a firearm 4 and drive-by shooting did not violate the constitutional ban on double jeopardy. CONCLUSION ¶7 For the foregoing reasons, we affirm Cooper s convictions and sentences. /s/ _________________________________ MICHAEL J. BROWN, Judge CONCURRING: /s/ _________________________________ DIANE M. JOHNSEN, Presiding Judge /s/ _________________________________ JOHN C. GEMMILL, Judge 5

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