State v. Crumes

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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. ) ) LANCE WALTER CRUMES, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 10-19-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH 1 CA-CR 09-0540 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-124073-001 DT The Honorable Edward O. Burke, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Ronald M. DeBrigida, Jr. Attorney for Appellant Phoenix Glendale O R O Z C O, Judge ¶1 his Lance Walter Crumes (Defendant) timely appeals from conviction and the sentence imposed for one count of aggravated assault, a class six felony, in violation of Arizona Revised Statutes ( A.R.S. ) sections 13-1203 and 13-1204.A.4 (2009).1 ¶2 Defendant s counsel filed this appeal in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). After searching the entire record on appeal, Defendant s counsel found no arguable question of law that is not frivolous and review the record for fundamental error. requests that we See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). Although this court granted Defendant the opportunity to file a supplemental brief in propria persona, he has not done so. ¶3 We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1 (2003), 13-4031 (2010), and 13-4033.A (2010). Finding no reversible error, we affirm. FACTS AND PROCEDURAL HISTORY ¶4 We review the facts in the light most favorable to sustaining the trial court s judgment and resolve all reasonable inferences against Defendant. 887 P.2d 592, 594 (App. State v. Kiper, 181 Ariz. 62, 64, 1994). 1 On June 5, 2009, a jury We cite the current versions of applicable statutes because no revisions material to this decision have since occurred. 2 convicted Defendant of one count of aggravated assault,2 acquitted him on a second count of but assault.3 aggravated Defendant s co-defendant (R.S.), was tried on the same charges as Defendant, but was acquitted. ¶5 Defendant lived with his wife and two children in an apartment complex in north Phoenix. R.S., a good friend of Defendant, was staying temporarily with Defendant. Victim lived in the same apartment complex. ¶6 In dollars. August According 2007, to Victim Victim, loaned the money Defendant was never twenty repaid. After two verbal requests for the money, Victim left a note on the windshield of Defendant s car asking again to be repaid. Defendant disputed Victim s testimony, claiming he previously repaid Victim the twenty dollars. ¶7 On September 27, 2007, Defendant was outside in front of his apartment. Victim saw Defendant and confronted Defendant about the twenty dollars. When Defendant refused, Victim got into As his car to leave. he was backing out, Defendant hollered at Victim to stop and indicated he was going to give 2 A.R.S. § 13-1204.A.4 ( If the person commits the assault while the victim is bound or otherwise physically restrained or while the victim s capacity to resist is substantially impaired. ). 3 A.R.S. § 13-1204.A.3 ( If the person commits the assault by any means of force that causes temporary but substantial disfigurement, temporary but substantial loss or impairment of any body organ or part or a fracture of any body part. ). 3 Victim twenty dollars. The testimony of the Victim, Defendant and the various witnesses conflicts at this point. ¶8 Victim testified he rolled down the passenger side window of his car, and Defendant reached through the window and struck Victim in the head. Victim stepped out of the car to avoid getting struck again by Defendant. According to Victim, R.S. came outside after hearing the confrontation and restrained Victim by grabbing his arms. Defendant continued to strike Victim several more times in the face while R.S. restrained Victim. Victim eventually broke free and police were called. ¶9 Defendant testified he never struck Victim while Victim was in the car, but instead threw the twenty dollars into the car and, out of frustration over the situation, shook Victim s school bag, which was in the front passenger seat. After throwing the money into Victim s car, Defendant turned to walk away. Victim jumped out of the car with his fists raised and came toward Defendant. him and missed. Defendant contends Victim swung at In response, Defendant swung and struck Victim. Victim swung a total of four times without making contact with Defendant. Defendant landed three punches. Defendant testified he acted in self-defense throughout the confrontation. ¶10 At trial, City of Phoenix Police Officer E., verified Victim s statement that Defendant attacked Victim. Officer E. also affirmed Defendant claimed that he acted in self-defense. 4 Victim s girlfriend and a 10-year-old neighbor testified against Defendant supporting Victim s version of the events, although the neighbor s testimony supported Defendant s claim that Victim exited the car with his hands in a fighting position. Testimony by Defendant s wife and co-defendant, R.S., was consistent with Defendant s version of the events. DISCUSSION ¶11 Defendant s counsel has searched the entire record and found no arguable grounds for reversal. Defendant s counsel claimed there were inconsistent verdicts rendered by the jury. The jury found Defendant guilty of assaulting the victim while the victim was restrained, however, the co-defendant, R.S., who the State claimed restrained the victim, was acquitted. these verdicts are not contradictory. We find The jury could reasonably conclude that R.S. restrained the Victim, but also conclude the State failed to prove R.S. caused or intended to cause any physical injury to the Victim. ¶12 There was substantial evidence to support the jury s verdict, which precludes us from reversing the decision. State v. Atwood, 171 Ariz. 576, 597, 832 P.2d 593, 614 (1992), overruled by State v. Nordstrom, 200 Ariz. 229, 241, ¶ 25, 25 P.3d 717, 729 (2001) (addressing use of identification evidence tainted by state action). more than a [mere] Evidence is sufficient when it is scintilla 5 and is such proof as could convince reasonable reasonable doubt. persons of a defendant s guilt beyond a State v. Tison, 129 Ariz. 546, 553, 633 P.2d 355, 362 (1981). ¶13 Defendant admitted Although Defendant claims punching Victim Victim swung at three him times. first and repeatedly, Defendant concedes he was never hit by Victim. The testimony and pictures taken by Officer E. confirm this account. Witnesses for Defendant and Victim merely reiterated conflicting testimonies of Defendant and Victim. sufficient evidence contradictory to evidence support is the jury s presented, the Here, there is When trier the verdict. fact of determines credibility, and we will not overturn a verdict where there is evidence to support it. In re Estate of Newman, 219 Ariz. 260, 271, ¶ 40, 196 P.3d 863, 874 (App. 2008). ¶14 We have reviewed error and found 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. Defendant was represented by counsel at all stages of the proceedings and was given the opportunity to speak at sentencing. The proceedings were conducted in compliance with Defendant s constitutional and statutory rights and the Arizona Rules of Criminal Procedure. CONCLUSION ¶15 conviction For the foregoing reasons, we affirm the Defendant s and sentence. After 6 the filing of this decision, defense counsel s obligations pertaining representation in this appeal have ended. to Defendant s Counsel need do no more than inform Defendant of the status of his appeal and his future options, appropriate for unless petition counsel s for review review to reveals the an Arizona issue Supreme Court. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). decision to Defendant has thirty days from the date of this proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review.4 /S/ ____________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ _________________________________ DANIEL A. BARKER, Judge /S/ _________________________________ LAWRENCE F. WINTHROP, Judge 4 Pursuant to Rule 31.18.b, Defendant or his counsel have fifteen days to file a motion for reconsideration. On the Court s own motion, we extend the time to file such a motion to thirty days from the date of this decision. 7

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