State v. Lentz

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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); ARCP 28(c); Ariz. R. Crim. P. 31.21 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. RANDALL PERRY LENTZ, Appellant. ) ) ) ) ) ) ) ) ) ) ) DIVISION ONE FILED: 08-05-2010 PHILIP G. URRY,CLERK BY: DN 1 CA-CR 09-0378 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yavapai County Cause No. P-1300-CR-0020081280 The Honorable Warren R. Darrow, Judge The Honorable Thomas B. Lindberg, Judge AFFIRMED Phoenix Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Abigail Jensen, P.C. By Abigail Jensen. Attorney for Appellant Prescott K E S S L E R, Judge ¶1 Defendant-Appellant Randall Perry Lentz ( Lentz ) was tried and convicted of aggravated domestic violence, a class 5 felony, and aggravated assault per domestic violence, a class 6 felony. He was sentenced to four months in jail and three years probation. Lentz appeals his conviction and sentence. Counsel for Lentz filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). counsel requests that fundamental error. Finding no arguable issues to raise, this Court search the record for Lentz was given the opportunity to, but did not file, a supplemental brief in propria persona. For the reasons that follow, we affirm Lentz conviction and sentence. FACTUAL AND PROCEDURAL HISTORY ¶2 In October 2008, sheriff s deputies responded to a domestic incident call. was arrested and As a result of the call, the defendant charged with aggravated domestic violence, aggravated assault per domestic violence and disorderly conduct. Defendant pled not guilty to all the charges.1 ¶3 she The victim, M.L., testified that prior to the assault suffered from including cancer. treatments and different types of medical conditions, She has brittle bones due to the radiation suffers from clinical depression. She experiences chronic pain and, at times, is left immobile. Those series of medical conditions impeded her from being sexually active. As a result, Lentz would constantly get angry. 1 Lentz has been convicted of two other previous violence offenses within the last seven years. 2 domestic ¶4 The day of the incident, M.L. and Lentz were helping an older friend of M.L. s with some house work. early due to an altercation with the neighbor. returned, M.L. noticed he had been drinking. they arrived outside at M.L. s whacking. home, they recreational began arguing. vehicle Lentz left ( RV ) When he Not too long after Then to do Lentz went some weed- When he finished, M.L. followed to rake and pick up the dry weeds and leaves. ¶5 M.L. testified that Lentz took the bags filled with dry leaves and threw them on her. She threw a handful of dry weeds at him and Lentz responded by punching her repeatedly in the head, chin and temple. [H]e pinned [her] up against the railroad tie with his left arm and continued punching [her] . [She] was dazed from him punching [her]... like [she] was a boxer. He finally knocked M.L. down to the ground against [a] railroad tie. She protected her face and head with her arms while in the fetal position. He also punched her in her pelvic area and kicked her throughout the body while she was on the ground. stop. She did not hit him back, but was begging him to This went on for about ten minutes. He told her to get up and that if she did get up, he would kill her. D., a neighbor, saw what was happening and told Lentz he was calling the police. At that point, Lentz got in his car and left. M.L. stood up and walked up to her neighbor s steps while she waited 3 for the paramedics and police to arrive. M.L. chose not to go to the hospital. ¶6 Deputy Sheriff P.J. testified that M.L. appeared to be shaken, that her hair was messed up, she had dirt on her clothing, he noticed she had some redness to her left ear, and had some trouble walking. Based on his training and experience, she appeared that she had just been beaten, but he did not see any bruises at the time. ¶7 When M.L. was talking to another Officer, J.L., she received several calls from Lentz. Lentz spoke to J.L. on the phone and returned to the home 20-30 minutes later. P.J. noticed conduct a that Lentz sobriety was test intoxicated. on Lentz argumentative and confrontational. He and Officer proceeded Lentz to become He thought that [they] were going to end up fighting Mr. Lentz. ¶8 P.J. noticed that Lentz had fresh scratches on his face, which Lentz alleged were the result of M.L. s attacks. Lentz denied having a physical confrontation with M.L. However, pictures taken by J.L. the next day show bruising on M.L. s arm, legs and shoulder area. ¶9 little Lentz testified that he had been dating M.L. for a over three years. He also testified that their relationship was rocky because of M.L. s casino habits and financial chaos and not because of M.L. s health and intimacy 4 issues. When they met, he was aware of her medical conditions, which throughout their relationship required a lot of aid and left her bedridden many times. ¶10 According to Lentz, the day of the incident, M.L. had become upset and began hitting him because he informed her that he was leaving her. She struck him several times with her cane. He testified that he never struck her back. When he was outside cleaning the yard, she came out and physically and verbally attacked him. Lentz. After she fell on the ground, she began kicking According to Lentz, the kicking and shoulder movements that D. witnessed, were from him trying to block M.L. s kicks and denied ever pinning her down or punching her. Consequently, Lentz became frustrated and left the house. ¶11 Lentz also testified that he had previously been convicted of domestic violence related offenses in 2003 and 2004 involving his ex-wife. ¶12 The neighbor, D., testified that his house is next to M.L. s house and sits a little higher, which gives him a clear view of M.L. s yard. On the day of the incident, he heard yelling coming from M.L. s house. He heard M.L. telling Lentz to stop hitting and kicking her, but he could not see M.L. being struck because of the height of the railroad ties. able to see a gentleman standing up moving shoulders like he was hitting somebody. 5 He was only his hips and He also testified that he heard a man say, Go Ahead. Get up. Because I ll kill you. ¶13 The hearing. superior court did not conduct a voluntariness The State did introduce statements made by Lentz to the police, but there is no evidence in the record of threats or coercion.2 A voluntariness hearing is not required if there is no evidence that defendant s statements were coerced. See State v. Peats, 106 Ariz. 254, 257, 475 P.2d 238, 241 (1970); State v. Finn, 111 Ariz. 271, 275, 528 P.2d 615, 619 (1974) ( The trial judge is not examination required, outside the [s]ua presence sponte, of the to enter jury to into an determine possible involuntariness where the question of voluntariness is not raised either by the evidence or the defense counsel. ) ¶14 The jury found Lentz guilty of Count I: aggravated domestic violence, and Count II: aggravated assault per domestic violence while the person assaulted was bound or otherwise physically restrained or while the assaulted person s capacity to resist was substantially impaired. The jury acquitted Lentz of disorderly conduct. ¶15 On May 4, 2009 the court suspended the imposition of sentence and placed Lentz on probation for three years pursuant 2 There is no evidence in the record that Lentz was given his Miranda rights. However, the only statements introduced at trial are statements made by Lentz claiming that he did not assault M.L., but that M.L. had attacked him. 6 to Arizona Revised Statutes ( A.R.S ) Section 13-902 (4)(2010). The court ordered 120 days of jail time3 and awarded Lentz 65 days credit for time served. ANALYSIS ¶16 This Court fundamental error. foundation of the has reviewed the entire record for Error is fundamental when it affects the case, deprives the defendant of a right essential to his defense, or is an error of such magnitude that the defendant could not possibly have had a fair trial. See State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). We do not reweigh the evidence found by the fact-finder. State v. Lucero, 204 Ariz. 363, 366, ¶ 20, 64 P.3d 191, 194 (App. 2003). We review the evidence in light sustaining the trial court s judgment. most favorable to State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998) (quoting State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997)). Error based on insufficiency of the evidence must be a complete absence of probative acts to support the conviction. Lucero, 204 Ariz. at 366, ¶ 20, 64 P.3d at 194 (quoting State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996)). ¶17 After careful review 3 of the record, we find no For a person who has been convicted of aggravated domestic violence with 2 prior violations to be eligible for probation, the person must serve at least 4 months in jail. See A.R.S. §§ 13-3601(M)(2), -3601.01(B) and -3601.02(B)(2010). 7 meritorious grounds modification sufficient committed of the for the for the reversal sentence trier offense of of Lentz conviction or The evidence was conclude that imposed. of fact to aggravated domestic aggravated assault per domestic violence. Lentz violence and The sentence imposed was within the sentencing limits, and Lentz was represented at all stages of the proceedings below. ¶18 The crime of aggravated domestic violence requires proof that: (1) defendant committed a predicate offense under A.R.S. § 13-3601(A) of aggravated assault while the person assaulted was bound or otherwise physically restrained or while the assaulted impaired, person s A.R.S. § capacity to resist 13-1204(4)(2010); (2) was substantially the relationship between the victim and the defendant was one of persons residing or having resided in the same household, A.R.S. § 13-3601(A)(1); and (3) the defendant has been convicted of two prior domestic violence offenses within a period of 84 months. A.R.S. § 13- 3601.02(B)(2010). ¶19 The crime of aggravated assault per domestic violence while the person assaulted was bound or otherwise physically restrained or while the assaulted person s capacity to resist was substantially defendant committed impaired assault requires by proof that: intentionally, (1) knowingly the or recklessly causing a physical injury to another person, A.R.S. § 8 13-1203(A)(1)(2010); (2) the assault was aggravated in that the person assaulted was bound or otherwise physically restrained or the person s capacity to resist was substantially impaired, A.R.S. § 13-1204(4); and (3) the relationship between the victim and the defendant was one of persons residing or having resided in the same household. A.R.S. § 13-3601(A)(1). AGGRAVATED DOMESTIC VIOLENCE Defendant committed the offense while the person assaulted was bound or otherwise physically restrained or while the assaulted person s capacity to resist was substantially impaired. ¶20 M.L. testified that she suffers from severe medical conditions, including cancer. experiences chronic During altercation, the repeatedly in the pain As a result of the radiation, she and, at Lentz head, times, pinned chin and is her temple. left and immobile. punched Dazed from her the punches, he knocked her down and she crawled into the fetal position protecting her face and head with her arms. He also punched her in her pelvic area and kicked her throughout the body while she was on the ground. kept begging him to stop. She never hit him back, but The neighbor also testified that he heard M.L. asking Lentz to stop and that he was able to see him making hip and shoulder movements consistent with someone who is kicking and punching something. ¶21 From the evidence presented, the jury could reasonably 9 find that M.L. s physical condition was weak, she was on the ground without the ability to defend herself, and Lentz committed the domestic violence offense while M.L. s capacity to resist was substantially impaired.4 The relationship between the victim and the defendant was one of persons residing or having resided in the same household. ¶22 Both Lentz and M.L. testified dating for a little over three years. that they had been At the time of the incident they were living together in M.L. s RV. Therefore, the second element is satisfied.5 The defendant has been convicted of two prior domestic violence offenses within a period of 84 months. ¶23 In 2003 and 2004, Lentz was convicted of assault per domestic violence, which Lentz admitted while testifying. See State v. Seymour, 101 Ariz. 498, 500, 421 P.2d 517, 519 (1966) ( An admission on cross-examination is surely the strongest evidence available to prove a prior conviction ... and thus, the truth of the fact is assured. ) AGGRAVATED ASSAULT PER DOMESTIC VIOLENCE The defendant committed assault by intentionally, knowingly or 4 This evidence also supports the jury s finding of this same element for aggravated assault per domestic violence. 5 This evidence also supports the jury s finding of this same element for aggravated assault per domestic violence. 10 recklessly causing a physical injury to another person. ¶24 There was evidence that M.L. was in a weak physical condition harm. and that any physical assault could cause serious She would also be left with little, if any, physical means to defend herself. Furthermore, she had already been rendered defenseless when she was knocked down to the ground and begging Lentz to stop. Photographs taken by Officer J.L. show that M.L. sustained bruising to her left arm, both legs and right shoulder area. The jury could reasonably find that Lentz intentionally, knowingly or recklessly caused a physical injury to M.L. ¶25 After meritorious sentence. careful grounds The review for record of reversal reflects the of Lentz record, Lentz had a we find no conviction or fair trial, was present, and represented by counsel at all critical stages prior to and during sentencing. trial, as well as for the verdict and at The jury was properly comprised of eight members pursuant to A.R.S. § 21-102(B)(2002). Additionally, the court imposed the proper sentence for Lentz offense. We affirm Lentz conviction and sentence. ¶26 Upon the filing of this decision, counsel shall inform Lentz of the status of the appeal and his options. Defense counsel has no further obligations unless, upon review, counsel finds an issue appropriate for submission to the Arizona Supreme 11 Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). motion, Lentz shall have thirty days from On the Court s own the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review. CONCLUSION ¶27 For the foregoing reasons, we affirm Lentz conviction and sentence. /S/ DONN KESSLER, Judge CONCURRING: /S/ MARGARET H. DOWNIE, Presiding Judge /S/ PETER B. SWANN, Judge 12

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