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.
)
)
ERIC JOHN JONES,
)
)
Appellant. )
)
__________________________________)
No. 1 CA-CR 10-0430
DIVISION ONE
FILED: 06/21/2011
RUTH A. WILLINGHAM,
CLERK
BY: GH
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(Not for Publication Rule 111, Rules of the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. CR2008-006358-001 DT
The Honorable Kristin C. Hoffman, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By
Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Attorneys for Appellee
Thomas A. Gorman
Attorney for Appellant
Phoenix
Sedona
S W A N N, Judge
¶1
Eric John Jones (“Defendant”) timely appeals from his
conviction on two counts of aggravated assault, and one count
each of attempted aggravated assault and misconduct involving
weapons.
Pursuant to Anders v. California, 386 U.S. 738 (1967),
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense
counsel has advised us that a thorough search of the record has
revealed
review
no
the
arguable
record
question
for
of
law,
fundamental
and
requests
error.
See
that
we
State
v.
Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993).
Defendant was given an opportunity to file a supplemental brief
in propria persona but did not.
FACTS AND PROCEDURAL HISTORY1
¶2
Cook,
On
May
Hillman
13,
and
2003,
Huskisson
Phoenix
were
Police
members
Officers
of
a
Cameron,
Neighborhood
Enforcement Team that conducted felony warrant pickups.
The
four officers, all wearing police uniforms and riding in marked
patrol vehicles, were part of a surveillance detail assigned to
take Defendant into custody.
As Cameron and Cook approached the
hotel where Defendant was staying, they saw him driving his car
toward them.
Defendant’s vehicle “took off” back to the hotel
and the officers followed.
Hillman and Huskisson also responded
to the hotel in their individual patrol cars.
Defendant parked
at the hotel and the officers surrounded his car.
¶3
The four officers and Defendant exited their vehicles
at the same time.
The officers yelled “Police, stop” and told
1
“We view the evidence in the light most favorable to sustaining
the verdicts and resolve all inferences against appellant.”
State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App.
1997).
2
Defendant to put “his hands up where [officers] could see them.”
Instead, Defendant reached behind his back and pulled out “a
large
handgun”
and
pointed
Hillman and Huskisson were.
would
shoot
Defendant.
the
other
it
“towards
the
northeast”
where
Cameron and Cook believed Defendant
officers.
Cook
fired
one
round
at
Defendant ducked down and “started crawling . . .
hunched over” toward some stairs.
¶4
Fearing he was “an easy target,” Cameron took cover
behind a pillar as he tracked Defendant’s movements.
He saw
Defendant sit down in the stairwell with his back against the
wall and point the gun at him.
Cameron fired one round and
yelled at Defendant to drop his weapon, but Defendant ignored
his commands and continued to point the gun at him.
Cameron
fired two more rounds and Cook heard “two or three rounds” come
“immediately”
Defendant
from
yelling
Defendant’s
at
the
location.
officers
in
an
Hillman
heard
“[a]gitated,
angry”
voice but could not discern Defendant’s words.
¶5
Defendant put his hands up, yelled “okay, okay” and
started “scooting” downstairs.
Defendant
still
held
his
Cameron could not see whether
gun.
Although
Cameron
ordered
Defendant to stop and keep his hands up, Defendant continued to
“move himself a few feet and then put his hands back up” as he
worked
his
way
down
the
hotel
3
breezeway
and
ignored
the
officer’s commands to “stop, keep his hands up.”
Cameron still
had “no idea” what Defendant had done with his weapon.
¶6
When
inside
opened
Defendant
the
crawled inside.
reached
door,
a
hotel
Defendant
room
dropped
door,
his
someone
weapon,
and
Cameron placed a fresh magazine in his weapon
and relocated to a safer place “in case [Defendant] came out
shooting.”
¶7
The
Special
Assignment
Unit
(“SAU”),
tactically
equipped and trained to handle “high-risk” situations, arrived
and took over.
gun.
SAU officers retrieved and impounded Defendant’s
Eventually the other person in the hotel room came out,
and then Defendant, who had been shot in the leg, was taken into
custody.
He was transported to the hospital in an ambulance;
Phoenix Police Officer Vine rode with Defendant.
Vine issued
Miranda warnings, which Defendant said he did not understand.
Defendant
later
told
understand his rights.
the
treating
paramedic
that
he
did
At the hospital Phoenix Police Officer
Petrosino attempted to again advise Defendant of his Miranda
rights, but Defendant “cut [him] off” and “said that he had
heard them a bunch of times and he knew what his rights were.”
Defendant agreed to answer questions and admitted he saw the
officers at the scene and heard them yelling “don’t move, or
stay there” when he was by his vehicle.
When Defendant realized
he could not get back to the room before the officers reached
4
him, “he pulled out a gun and displayed it.”
Defendant also
admitted that he fired the gun “once or twice into the air” from
the stairwell because “he wanted [the officers] to know that he
had a gun and that he wasn’t afraid to use it.”
¶8
Defendant was indicted on three counts of aggravated
assault, all class 2 dangerous felonies, for using a dangerous
weapon
to
intentionally
(“Count
2”),
engaged
in
and
place
Huskisson
official
Hillman
(“Count
duties,
in
(“Count
3”),
all
reasonable
1”),
peace
Cameron
officers
apprehension
of
imminent physical injury; and one count of misconduct involving
weapons (“Count 4”), a class 4 dangerous felony, for knowingly
possessing a gun while being a prohibited possessor.
amended
the
indictment
to
allege
historical
The state
non-dangerous
felonies, aggravating factors, and other crimes not committed on
the same occasion for sentencing purposes.2
¶9
Before trial, the court granted Defendant’s motion for
a Rule 11 examination and appointed experts to evaluate his
competency to stand trial.
After an evidentiary hearing, the
court found Defendant competent to stand trial.
¶10
The case was tried to a jury.
At the conclusion of
the state’s case, Defendant moved for a judgment of acquittal
2
On Defendant’s motion, the trial court designated this as a
complex case.
5
pursuant
to
Ariz.
R.
Crim.
P.
20.
The
motion
was
denied.
Defendant presented no witnesses or evidence.
¶11
After deliberations, the jury found Defendant guilty
of Counts 1, 2 and 4, and of attempted aggravated assault on
Count
3.
The
jury
additionally
found
that
all
counts
were
dangerous offenses and that the officers were engaged in their
official
duties
aggravation
on
the
day
of
the
hearing,
the
jury
found
incident.
that
After
Defendant
had
an
four
prior felony convictions the trial court could use to enhance
sentencing.
¶12
Defendant was sentenced to concurrent maximum terms of
28 years in prison for each of Counts 1 and 2; 20 years for
Count 3; and 10 years for Count 4.
Defendant was given 1,461
days presentence incarceration credit for each count.
DISCUSSION
¶13
We have read and considered the briefs submitted by
counsel and have reviewed the entire record.
300, 451 P.2d at 881.
Leon, 104 Ariz. at
We find no fundamental error.
All of the
proceedings were conducted in compliance with the Arizona Rules
of Criminal Procedure, and the sentence imposed was within the
statutory range.
Defendant was present at all critical phases
of the proceedings and represented by counsel.
properly impaneled and instructed.
6
The jury was
The jury instructions were
consistent with the offenses charged.
The record reflects no
irregularity in the deliberation process.
I.
RULE 20 MOTION3
¶14
A judgment of acquittal is appropriate only when there
is “no substantial evidence to warrant a conviction.”
Substantial
evidence
is
such
proof
that
“reasonable
Rule 20.
persons
could accept as adequate and sufficient to support a conclusion
of
defendant’s
Mathers,
165
guilt
Ariz.
beyond
64,
a
doubt.”
796
67,
reasonable
866,
P.2d
869
State
v.
(1990).
“Reversible error based on insufficiency of the evidence occurs
only where there is a complete absence of probative facts to
support the conviction.”
State v. Soto-Fong, 187 Ariz. 186,
200, 928 P.2d 610, 624 (1996).
A.
¶15
Aggravated Assault (Officers Hillman and Cameron)
A
person
commits
assault
by
intentionally
placing
another in reasonable apprehension of imminent physical injury.
A.R.S. § 13-1203(A)(2).4
An assault is aggravated if the person
committing the assault uses a deadly weapon, or knows or has
reason to know that the victim is a peace officer engaged in
official duty.
A.R.S. § 13-1204(A)(2), (5).
3
Although Defendant’s Rule 20 motion was limited to Counts 1, 3,
and 4, we review all counts.
4
We cite to the versions of statutes in effect at the time of
the offense (May 13, 2003).
7
¶16
Here,
substantial
evidence
was
presented
for
a
reasonable jury to find Defendant guilty of aggravated assault
on Hillman and Cameron.
1.
¶17
Both officers were dressed in police uniforms and rode
inside
that
Engaged in Official Duties
marked
they
patrol
were
cars,
engaged
in
supporting
their
a
reasonable
official
duties
inference
when
they
encountered Defendant and commanded him to stop, put up his
hands,
and
drop
his
weapon.
Additionally,
Defendant
told
Petrosino that he knew they were police officers.
2.
¶18
Deadly Weapon
Cameron, Cook, and Hillman saw Defendant holding the
gun, which was presented at trial.
Cook’s testimony that he
heard shots coming from the stairwell and Defendant’s admission
to Petrosino that he shot his weapon are evidence that the gun
was loaded.
3.
¶19
gun
Reasonable Apprehension of Imminent Physical
Injury
Cook and Cameron testified that Defendant pointed the
in
the
direction
of
Hillman,
and
Defendant was going to shoot Hillman.
“pinned
down”
behind
his
patrol
car
Defendant would shoot him if he moved.
that
they
believed
Hillman described being
because
he
believed
Cameron testified that
he felt like “an easy target” and that he took cover to protect
8
himself.
Cameron saw Defendant point his gun directly at him,
and said Defendant ignored his commands to put down the gun.
After Defendant went inside the hotel room, Cameron reloaded his
gun in case Defendant came out shooting.
B.
Attempted Aggravated Assault (Officer Huskisson)
¶20
A person commits attempt “if such person intentionally
does anything which is a step in a course of conduct planned to
culminate in the commission of an offense.”
State v. May, 137
Ariz. 183, 187, 669 P.2d 616, 620 (App. 1983).
See also A.R.S.
§ 13-1001(A)(2).
¶21
Here,
substantial
evidence
was
presented
for
a
reasonable jury to find Defendant guilty of attempted aggravated
assault.
Defendant
Huskisson.
gun,
he
pointed
his
gun
in
the
direction
of
Even though Huskisson never saw Defendant or his
knew
the
officers
were
pursuing
Cameron and Cook with guns drawn and yelling.
Defendant
and
saw
He also heard “an
exchange of gunfire” from two locations –- one where Cook and
Cameron were stationed, and the other the stairwell.
Huskisson
testified that his anxiety level was “up” and that he took cover
behind a patrol car because he heard “a firefight” but did not
know where the “threat” came from.
feared for his life.
9
He further testified that he
C.
Misconduct Involving Weapons
¶22
Misconduct
involving
weapons
occurs
when
a
person
knowingly possesses a deadly weapon while being a prohibited
possessor.
A.R.S. § 13-3102(A)(4).
a loaded or unloaded revolver.
¶23
Here,
reasonable
collected
jury
from
substantial
to
find
outside
A “deadly weapon” includes
A.R.S. § 13-3101(A)(1), (4).
evidence
was
presented
Defendant
guilty.
Defendant’s
hotel
The
room.
for
weapon
The
a
was
state
presented evidence that Defendant’s civil rights to have a gun
had not been restored.
II.
RULE 11 COMPETENCY
¶24
A defendant cannot be tried while incompetent.
Bishop
v. Super. Ct. (Roylston), 150 Ariz. 404, 406, 724 P.2d 23, 25
(1986).
See also Rule 11.2 (allowing a party to request or the
court to sua sponte order an examination to determine whether a
defendant is competent to stand trial); Rule 26.5 (allowing a
mental
health
examination
at
any
time
before
sentence
is
pronounced); State v. Amaya-Ruiz, 166 Ariz. 152, 161-62, 800
P.2d 1260, 1269-70 (1990) (providing a defendant the right to a
mental examination and hearing where “reasonable grounds” exist
“to indicate that the defendant is not able to understand the
nature
of
the
proceeding
against
defense”).
10
him
and
to
assist
in
his
¶25
Here,
we
find
no
abnormalities
documenting the Rule 11 evaluation process.
in
the
record
The trial court
granted Defendant’s request for a competency determination and
appointed three experts to conduct an evaluation.
See Rule 11.3
(requiring appointment of experts), Rule 11.5 (requiring hearing
to
determine
competency).
An
evidentiary
hearing
was
held,
during which the competency examiners’ reports were admitted and
one psychologist testified.
See A.R.S. § 13-4505(A) (allowing
testimony of mental health experts during competency hearing),
-4510(A)
Moreover,
(allowing
the
parties
court
to
granted
present
evidence
Defendant’s
at
requests
hearing).
to
admit
additional medical records that documented Defendant’s physical
and mental health history, and considered these documents in its
ruling.5
See A.R.S. § 13-4510(A) (allowing parties to introduce
“other evidence regarding the defendant’s mental condition”).
In a detailed minute entry, the court documented numerous expert
reports
that
opined
Defendant
was
“malingering”
and
“exaggerating and/or feigning the lack of cognitive ability.”
The court additionally noted that Defendant’s “demeanor in the
courtroom
was
appropriate,”
that
5
he
“interact[ed]
with
his
None of the evaluation reports or historical records, however,
were included in the record.
Defendant is responsible to
provide a complete record on appeal.
State v. Mendoza, 181
Ariz. 472, 474, 891 P.2d 939, 941 (App. 1995).
“When matters
are not included in the record on appeal, the missing portion of
the record is presumed to support the decision of the trial
court.” Id.
11
attorney and the Court during the proceedings,” and that his
“presentation of deficits is unconvincing.”
It found Defendant
competent
to
and
that
he
“has
the
capacity
understand
the
proceedings and is able to assist counsel with [his] defense, if
he so chooses.”
CONCLUSION
¶26
We
affirm
Defendant’s
conviction
and
sentence.
Counsel’s obligations pertaining to Defendant’s representation
in this appeal have ended.
Counsel need do nothing more than
inform Defendant of the status of the appeal and his future
options, unless counsel’s review reveals an issue appropriate
for submission to the Arizona Supreme Court by petition for
review.
State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154,
156-57 (1984).
On the court’s own motion, Defendant shall have
thirty days from the date of this decision to proceed, if he so
desires, with an in propria persona motion for reconsideration
or petition for review.
/s/
__________________________________
PETER B. SWANN, Presiding Judge
CONCURRING:
/s/
____________________________________
DANIEL A. BARKER, Judge
/s/
____________________________________
PATRICIA K. NORRIS, Judge
12
