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,
v.
DAVID LEE WILSON,
)
)
Appellee, )
)
)
)
)
)
Appellant. )
)
1 CA-CR 10-0029
DEPARTMENT D
DIVISION ONE
FILED: 09/23/2010
RUTH WILLINGHAM,
ACTING CLERK
BY: GH
MEMORANDUM DECISION
(Not for Publication –
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-116270-001SE
The Honorable John R. Hannah, Judge
AFFIRMED
Terry Goddard, Attorney General
By
Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By
Terry J. Adams, Deputy Public Defender
Attorneys for Appellant
Phoenix
W I N T H R O P, Presiding Judge
¶1
conviction
David
and
Lee
Wilson
sentence
for
(“Appellant”)
aggravated
appeals
assault.
from
his
Appellant’s
counsel has filed a brief in accordance with Smith v. Robbins,
528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967);
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating
that he has searched the record on appeal and found no arguable
question
of
law
that
is
not
frivolous.
Appellant’s
counsel
therefore requests that we review the record for fundamental
error.
96
See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89,
(App.
record
1999)
for
Appellant
(stating
reversible
the
that
this
error).
opportunity
to
court
Although
file
a
reviews
this
the
court
supplemental
entire
granted
brief
in
propria persona, he has not done so.
¶2
We have appellate jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and
13-4033(A)
(2010).
Finding
no
reversible
error,
we
affirm
Appellant’s conviction and sentence.
I. FACTS AND PROCEDURAL HISTORY
¶3
sustaining
We review the facts in the light most favorable to
the
verdict
against Appellant.
and
resolve
all
reasonable
inferences
See State v. Kiper, 181 Ariz. 62, 64, 887
P.2d 592, 594 (App. 1994).
¶4
On
April
30,
2009,
the
State
charged
Appellant
by
information with one count of aggravated assault, a class three
2
felony.
See A.R.S. §§ 13-1203 (2010), -1204 (2010). 1
The State
later alleged that Appellant had six non-dangerous historical
prior felony
convictions
and
that
the
charged
offense
was
a
dangerous offense because it involved the use of a deadly weapon
or
dangerous
instrument.
Additionally,
the
State
See
filed
an
A.R.S.
§
allegation
13-704
of
(2010).
aggravating
circumstances other than prior convictions.
¶5
At trial, the State presented the following evidence:
On December 22, 2008, at approximately 9:00 a.m., the victim was
at the home of his girlfriend, Erica, when the two of them
engaged
in
an
“argument.”
After
the
argument,
Erica
called
Appellant while the victim gathered some belongings, left, and
began walking home.
As the victim crossed through the parking
lot of an electronics store, a vehicle pulled up next to him.
Appellant, who was the driver of the vehicle, began shouting at
the
victim,
and
the
two
men
began
to
argue.
The
victim
threatened to “kick [Appellant’s] ass” if Appellant exited the
vehicle,
lived.
and
he
told
Appellant
that
he
knew
where
Appellant
Appellant nonetheless exited his vehicle and approached
the victim.
After a brief physical altercation, the victim went
to the front of the store to seek help from the store’s security
personnel, while Appellant re-entered his vehicle, sped through
1
We cite the current version of the applicable statutes
because no revisions material to this decision have occurred.
3
the parking lot to the front of the store, exited his vehicle,
and yelled at the victim, “[W]hat the f--- did you say to me?”
After a security guard asked Appellant to leave, Appellant reentered his vehicle and drove away.
¶6
The victim waited a few minutes and eventually began
to walk home.
As he did so, however, he observed Appellant’s
vehicle parked behind the store.
and
heard
the
vehicle
The victim continued walking
accelerate
toward
him.
The
victim
attempted to jump out of the way; however, the front of the
vehicle struck him in the lower back, causing him to fall on the
pavement and suffer various “road rash” injuries, including a
three-inch gash to the back of his head.
The victim eventually
stood up, limped home, and explained what had happened to his
father, who called the police.
Paramedics later arrived and
treated the victim.
¶7
The
police
contacted
Appellant
by
telephone.
Appellant admitted striking the victim, but stated that he did
so because he did not want the victim to follow through with
threats made by the victim earlier that day.
Appellant also
stated that he only intended to hurt the victim, not to kill
him.
Additionally, Appellant acknowledged there might have been
a better way to handle the situation.
¶8
Appellant testified at trial that he knew both the
victim and Erica.
On the morning of the incident, Erica called
4
Appellant, and she asked him to pick her up at a nearby mall.
As he drove to the mall, Appellant observed the victim, who
appeared to be carrying Erica’s backpack.
next
to
vehicle
the
to
backpack,
victim,
retrieve
however,
altercation
asked
the
the
backpack,
backpack.
the
ensued.
for
victim
After
When
pushed
the
Appellant pulled up
he
and
exited
his
reached
and
him,
for
physical
a
altercation,
threatened to kill Appellant and began to leave.
the
the
victim
Appellant re-
entered his vehicle, followed the victim to the front of the
store, exited the vehicle, and warned the victim not to threaten
him.
A security guard told Appellant to leave, and Appellant
re-entered his vehicle and began to drive away.
Appellant only
drove to the back of the parking lot behind the store, however,
where he tried to call his son.
Shortly thereafter, the victim
came
metal
around
the
corner
with
a
approached Appellant’s vehicle.
pipe
in
his
hand
and
Appellant removed his foot from
the vehicle’s brake, and the vehicle moved forward, striking the
victim.
The pipe rolled away, and Appellant picked it up.
When
Appellant left, the victim was sitting up in the parking lot.
Appellant also admitted having one prior felony conviction.
¶9
The
jury
charged,
and
further determined that the crime was a dangerous offense.
The
jury
one
subsequently
aggravating
factor,
found
Appellant
determined
that
specifically
5
guilty
the
that
as
State
the
had
offense
proven
had
caused
physical, emotional, or financial harm to the victim.
The trial
court sentenced Appellant to a slightly aggravated term of 11.25
years’ imprisonment in the Arizona Department of Corrections and
credited
Appellant
incarceration.
for
sixty-three
days
of
pre-sentence
Appellant filed a timely notice of appeal.
II. ANALYSIS
¶10
We
have
reviewed
error and find none.
the
entire
record
for
reversible
See Leon, 104 Ariz. at 300, 451 P.2d at
881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96.
The evidence
presented at trial was substantial and supports the verdict, and
the sentence was within the statutory limits.
Appellant was
represented by counsel at all stages of the proceedings and was
given the opportunity to speak at sentencing.
were
conducted
in
compliance
with
his
The proceedings
constitutional
and
statutory rights and the Arizona Rules of Criminal Procedure.
¶11
After
obligations
appeal
have
filing
pertaining
ended.
of
to
this
decision,
Appellant’s
Counsel
need
do
defense
counsel’s
representation
no
more
than
in
this
inform
Appellant of the status of the appeal and of his future options,
unless
counsel’s
review
reveals
an
issue
appropriate
petition for review to the Arizona Supreme Court.
for
See State v.
Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).
Appellant has thirty days from the date of this decision to
6
proceed,
if
he
desires,
with
a
pro
per
motion
for
reconsideration or petition for review.
III. CONCLUSION
¶12
Appellant’s conviction and sentence are affirmed.
_________________/S/_________________
LAWRENCE F. WINTHROP, Presiding Judge
CONCURRING:
______________/S/__________________
PATRICIA K. NORRIS, Judge
_____________/S/___________________
PATRICK IRVINE, Judge
7
