STATE v. ISHAM

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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 D. ISHAM, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 10/30/2012 RUTH A. WILLINGHAM, CLERK BY: sls No. 1 CA-CR 12-0110 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-147426-001 DT The Honorable Connie Contes, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Michael J. Dew, Attorney for Appellant Phoenix Michael D. Isham, Appellant Kingman D O W N I E, Judge ¶1 Michael D. Isham timely appeals his convictions for three counts of aggravated assault in violation of Arizona Revised Statutes ( A.R.S. ) section 13-1204, resisting arrest in violation of A.R.S. § 13-2508, and misconduct involving weapons in violation of A.R.S. § 13-3102. 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 searched the record, found no arguable question of law, and asked that we review the record for fundamental error. See State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Isham filed a supplemental brief in propria persona. On appeal, we view the evidence in the light most favorable to sustaining the convictions. State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), cert. denied, 459 U.S. 882 (1982). FACTS AND PROCEDURAL HISTORY ¶2 Officers Mesquita and Happeny sat in a marked patrol car around midnight, blocking traffic near an accident site. car driven by Isham drove directly evasive turn to avoid a collision. Isham, who blaring. was laughing and toward them and made A an Officer Mesquita approached smiling with his car radio The officer asked Isham three times to turn off the engine before he complied. Isham had bloodshot, watery eyes and smelled of alcohol, though he denied consuming drugs or alcohol that evening. 2 ¶3 When the officer initiated an arrest, Isham asked why he was being arrested. his body Mesquita. and pulled Isham then reached toward the middle of a gun, which raised toward Officer Officer Mesquita delivered fist strikes to Isham s face, causing Isham to drop the gun. ¶4 he Isham broke free and ran. Officer Mesquita chased and tackled Isham. During the ensuing struggle, Officer Mesquita was hit by elbows, flailing hands. A second officer assisted, but the struggle continued, and Isham ignored officers commands to stop resisting. A third officer intervened before Isham could be handcuffed. The gun was impounded. ¶5 Isham was charged with aggravated assault (Officer Mesquita), a class 2 dangerous felony ( count 1 ); aggravated assault (Officer Mesquita), a class 5 felony ( count 2 ); aggravated assault (Officer Happeny), a class 5 felony ( count 3 ); resisting arrest, a class 6 felony ( count 4 ); and misconduct involving weapons, a class 4 dangerous felony ( count 5 ). 1 The State alleged multiple aggravating factors for purposes of sentence enhancement. ¶6 At trial, Isham stipulated to being a prohibited possessor, but denied the impounded weapon was his. Officers Mesquita and Happeny both testified. 1 At the conclusion of the Count 5 was originally charged as a dangerous offense, but the superior court did not submit it to the jury as such. 3 State s case in chief, Isham moved for a judgment of acquittal pursuant to ( Rule ). Rule The witnesses. 20, Arizona motion was Rules of denied. Criminal Isham Procedure presented two The jury found him guilty as to counts 2 and 4 but could not reach a verdict regarding counts 1, 3, and 5. A second trial ensued on counts 1, 3, and 5. 2 ¶7 stipulated that he arrest was lawful. was a prohibited possessor and Isham that his The second jury found him guilty on all counts and found that the State had proven aggravating factors as to each offense. ¶8 Isham was sentenced to an aggravated term of 15 years for count 1, a presumptive term of 1.5 years for count 2, a presumptive term of 1.5 years for count 3, a presumptive term of 1 year for count 4, and a presumptive term of 2.5 years for count 5. The sentences were ordered to run concurrently, with 515 days presentence incarceration credit. DISCUSSION ¶9 We have read and considered the briefs submitted by Isham and his counsel and have reviewed Leon, 104 Ariz. at 300, 451 P.2d at 881. error. the the entire record. We find no fundamental All of the proceedings were conducted in compliance with Arizona Rules of Criminal 2 Procedure, and the sentences Counts 1, 3, and 5 were renumbered 1, 2, and 3 for purposes of the second trial. 4 imposed were within the statutory ranges. Defendant was present at all critical phases of the proceedings and was represented by counsel. jury The jury was properly impaneled and instructed. instructions were consistent with the offenses The charged. The record reflects no irregularity in the deliberation process. ¶10 In his supplemental brief, Isham identifies several issues that we briefly address. ¶11 During the arrest was lawful. best interest. second trial, Isham stipulated that his He now argues the stipulation was not in his This contention relates to trial strategy decisions and advice provided by defense counsel. Ineffective assistance proceedings of counsel pursuant to Rule 32. claims must be brought in Any such claims improvidently raised in a direct appeal . . . will not be addressed by appellate courts regardless of their merit. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). ¶12 Isham did not testify at either trial. He argues the only reason he did not do so was to prevent his prior felony convictions from being used to impeach him. ¶13 at It is well-established that a defendant must testify trial before conditionally he can admitting purposes of impeachment. challenge an adverse evidence of prior pretrial ruling convictions for State v. Smyers, 207 Ariz. 314, 318, ¶ 15, 86 P.3d 370, 374 (2004) (citation omitted). 5 Because Isham did not testify, he cannot challenge the trial court s ruling regarding use of his prior convictions. ¶14 We cannot discern what additional arguments Isham may be attempting to assert, as his briefing lacks clarity, support, or context. Stating a conclusory claim (for example, that the police officers committed perjury) is insufficient. See State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101, 94 P.3d 1119, 1147 n.9 (2004). To the extent Isham challenges the interpretation of evidence presented at trial, the credibility of witnesses and the weight to be given the evidence is for the jury to decide. State v. Bustamante, 229 Ariz. 256, 258, ¶ 5, 274 P.3d 526, 528 (App. 2012) (citation omitted). the evidence to decide Appellate courts do not reweigh whether we conclusion as the trier of fact. would reach the same State v. Mincey, 141 Ariz. 425, 432, 687 P.2d 1180, 1187 (1984). CONCLUSION ¶15 We Counsel s this affirm obligations appeal have Isham s convictions pertaining ended. to Counsel Isham s need do and sentences. representation nothing more in than inform Isham 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, Isham shall have 30 days 6 from the date of this decision to proceed, if he desires, with an in propria persona motion for reconsideration or petition for review. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MICHAEL J. BROWN, Presiding Judge /s/ RANDALL M. HOWE, Judge 7

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