State v. Braxton

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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. ) ) COREY JOSEPH BRAXTON, ) ) Appellant. ) _________________________________) 1 CA-CR 09-0119 DIVISION ONE FILED: 06-15-2010 PHILIP G. URRY,CLERK BY: GH DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court of Maricopa County Cause No. CR2007-176447-001 DT The Honorable Kristin C. Hoffman, Judge AFFIRMED Terry Goddard, Attorney General By Kent E Cattani, Chief Counsel, Criminal Appeals Section Attorneys for Appellee Phoenix Bruce Peterson, Legal Advocate By Kerri L. Chamberlin, Deputy Legal Advocate Attorneys for Appellant Phoenix Corey Joseph Braxton Appellant Phoenix T H O M P S O N, Judge ¶1 This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel for Corey Joseph Braxton, Sr. (defendant) has advised us that, after searching the entire record, she has been unable to discover any arguable questions of law and has filed a brief requesting this court to conduct an Anders review and search the record for fundamental error. This court granted counsel s motion to allow defendant to file a supplemental brief in propria persona, and he has done so. ¶2 In his supplemental brief, defendant asks this court to search the record for error with regard to three issues: (1) whether the state abused its prosecutorial discretion in charging defendant with aggravated assault as opposed to an aggravated domestic violence offense; (2) whether the state violated defendant s equal protection rights in prosecuting defendant with an aggravated assault charge; and, (3) whether defendant s sentence violates his Eighth Amendment right against cruel and unusual punishment. We reject the arguments raised in defendant s supplemental brief, and after reviewing the entire record, find no fundamental error. For the following reasons, we affirm. FACTUAL AND PROCEDURAL HISTORY ¶3 Defendant was charged by indictment with one count of aggravated assault, a class 4 felony and a domestic violence offense. 1 The following evidence was presented at trial. 1 Our obligation in this appeal is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We view the facts in the light most favorable to sustaining the jury s verdict and resolve all inferences against defendant. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 ¶4 On June 26, 2007, police officers responded to a domestic fight in progress at defendant s residence. observed that eighteen-year-old swollen, bleeding left eye. C.B., Upon arrival, police defendant s son, had a According to the officer s testimony at trial, C.B s mother and defendant s wife, V.J, stated the defendant and C.B. had gotten into an argument and that the defendant kicked C.B. in the face. the scene when the police arrived. Defendant was not present at C.B. was taken to the hospital where it was documented that the cause of the injury to his eye was a kick in the eye by father. The state s expert witness, Dr. MacArthur, testified C.B. sustained fractures to both the left maxillary sinus and to the ethmoid sinus. Dr. MacArthur further testified the degree of force required to result in such injury was moderate to severe, and that the injury was consistent with the reported . . . mechanism of a kick to the eye. ¶5 At trial, V.J. testified that she had little recollection of the incident. Defendant, who testified on his own behalf, explained that he and his son were having an argument on the narrow stairwell in the residence when his son attempted to punch him. Defendant claimed he kicked up his leg to block the punch, but that his kick did not contact his son. ¶6 A jury convicted defendant of aggravated assault, a class 4 felony and domestic violence offense. At sentencing, the court found defendant had three prior felony convictions. 3 The court considered mitigating factors of strong and unanimous family support and defendant s in-jail mental health diagnosis of bipolar disorder. The court sentenced defendant to eight years imprisonment with 76 days of presentence incarceration credit. Defendant timely appealed his conviction and sentence. 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) (2003), 13-4031 and -4033(A)(1) (2010). DISCUSSION ¶7 In Anders appeals, we review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). Defendant raises three issues, which we consider in turn. 1. ¶8 Prosecutorial Discretion Defendant claims the state abused its prosecutorial discretion by charging him with aggravated assault instead of aggravated domestic violence. It is clearly within the sound discretion of the prosecutor to determine whether to file charges and which charges to file. State v. Hankins, 141 Ariz. 217, 221, 686 P.2d 740, 744 (1984) (citing State v. Murphy, 113 Ariz. 416, 418, 555 P.2d 1110,1112 (1976) (a prosecutor s broad discretion is present in a capital case as well as any other, and such discretion even in capital cases is not violative of the constitution. )). ¶9 Furthermore, we note that 4 A.R.S. § 13-3601 is a procedural statute and it does not create a separate offense of domestic violence. State v. Schackart, 153 Ariz. 422, 423-24, 737 P.2d 398, 399-400 (App. 1987) (vacating defendant s sentence where the state correctly conceded it was error to impose a separate sentence for the offense of domestic violence. ). state, in its discretion, charged defendant with Here, the aggravated assault, which qualifies as a domestic violence offense under these circumstances, where the victim was defendant s son. 13-3601(A)(4). 2. ¶10 See A.R.S. § Accordingly, this claim is without merit. Selective Prosecution Defendant also argues his equal protection rights were violated because the state selectively chose to prosecute him under aggravated assault when others committing substantially the same offense are charged with domestic violence. To prevail on this claim, he must show, (1) other similarly situated people were not charged with the crime he is accused of; and (2) the decision to charge him with that crime was made based on an impermissible ground, like race or religion. State v. Montano, 204 Ariz. 413, 428, ¶ 78, 65 P.3d 61, 76 (2003) (citation omitted). Defendant has failed to meet this burden and we find no evidence in the record to support his claim. 3. ¶11 Cruel and Unusual Punishment Finally, defendant argues the imposed sentence of eight years imprisonment is a violation of his Eighth Amendment right 5 against cruel and unusual punishment. A sentence violates the Eighth Amendment s prohibition of cruel and unusual punishment if there is a showing of gross disproportionality by comparing the gravity of the offense [and] the harshness of the penalty. State v. Berger, 212 Ariz. 473, 476, ¶12, 134 P.3d 378, 381 (2006) (quoting Ewing v. California, 538 U.S. 11, 22 (2003)). Here, the trial court found defendant had been convicted of three prior felonies for sentence enhancement purposes under A.R.S. § 13-604(C) (Supp. 2007) (this section is now A.R.S. § 13-703(C),(J)). Defendant was sentenced to a term of eight years imprisonment, which is the minimum term in the range of acceptable sentences. Accordingly, we see no gross disproportionality between the sentence imposed and the offense committed by defendant. ¶12 Defendant argues that if he was convicted of aggravated domestic violence, his sentence would be substantially lowered. However, defendant was convicted assault. Defendant argues his conviction is not supported by the facts of the case or the evidence. 2 of one count of aggravated The jury, as finder of fact, determines the credibility of witnesses and weighs the evidence. State v. Fimbres, 222 Ariz. 293, 297, ¶ 4, 213 P.3d 1020, 1024 2 Defendant also asserts the trial court failed to give a domestic violence instruction. Defendant was not entitled to have the jury instructed of a domestic violence offense rather than the aggravated assault charge. See State v. Politte, 136 Ariz. 117, 121, 664 P.2d 661, 665 (App. 1982) (a defendant is not entitled to an instruction on another offense even though he might have been charged with and convicted of that offense. ) (citation omitted). 6 (App. 2009). In general, we defer to the jury s assessment of a witness s credibility and the weight to be given evidence. at 300, ¶ 21, 213 P.3d at 1027. See id. After reviewing the entire record, we find substantial evidence was presented to support defendant s convictions. CONCLUSION ¶13 We have read and considered counsel=s brief and have searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. We find none. See Leon, 104 All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. So far as the record reveals, defendant was adequately represented by counsel at all stages of the proceedings, and the sentence imposed was within the statutory limits. Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984), defendant=s counsel=s obligations in this appeal are at an end. ¶14 We affirm the conviction and sentence. /s/ _____________________________ JON W. THOMPSON, Judge CONCURRING: /s/ ___________________________________ PATRICIA A. OROZCO, Presiding Judge /s/ ___________________________________ DIANE M. JOHNSEN, Judge 7

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