State v. Nash
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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 DIVISION ONE FILED: 12/30/2010 RUTH WILLINGHAM, ACTING CLERK BY: GH IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. LEVI LEON NASH, Appellant. ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 10-0006 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-008131-001 DT The Honorable Jeanne M. Garcia, Judge AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix Maricopa County Public Defender s Office By Margaret M. Green, Deputy Public Defender Attorneys for Appellant Phoenix G E M M I L L, Judge ¶1 Levi sentence for Leon Nash resisting ( Nash ) arrest, a appeals class his six conviction felony. and Nash s counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that she has searched the record and found no arguable question of law and requesting examine the record for reversible error. that this court Nash was afforded the opportunity to file a supplemental brief in propria persona but did not do so. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY ¶2 We view the in the light therefrom convictions. facts and most all reasonable favorable to inferences sustaining the State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). ¶3 Phoenix police responded to a 911 call related to an argument between Nash and his wife. When the officers arrived at the residence, Nash s wife was outside sitting in a car. officers asked her what had happened. The She told them that her husband had broken her CD stand and that he did not live in her house, and she wanted him escorted out. She then led the officers inside. ¶4 When the officers entered the house, they found Nash in the living room sitting on the couch, bent over picking up CDs that were strewn all over the floor and rearranging them, putting them in the cases and setting them on top of the coffee table. A broken CD stand was lying on the ground. 2 Officer R. asked Nash what had happened, and Nash s only response was that he didn t like police officers. supervisor. Nash then asked to speak to the Sergeant G. happened to be there, so he stepped in. Nash reiterated that he did not like the police; he said he wanted the officers all just to leave and leave him alone. Nash was told that the officers could not leave because they were investigating a possible crime. After speaking with Sergeant G., Nash again refused to answer any questions or tell the officers what had happened. ¶5 Nash then began arguing with his wife, who was standing by the kitchen entry, about whether or not he actually lived in the house. Nash s wife claimed that Nash did not live in the house, that everything in the house belonged to her, and that Nash needed to leave. Nash rose to his feet with clenched fists, at which point Officer R. told Nash to sit down; Nash complied. ¶6 The argument continued for a few minutes before Officer R. placed Nash under arrest for breaking the CD stand. Officer R. told Nash to stand up, turn around and put his hands behind his repeated back. his Nash instructions ignored three the command, times. so After Officer R. getting no response from Nash, Officer R. reached down and grabbed Nash s right wrist, again told him he was under arrest, and repeated the instruction to turn around and put his hands behind his 3 back. Nash jerked his hand, pulling the officer closer, and leaned back into the couch. As Nash continued to struggle, Officer R. needed to use both of his hands to attempt to control Nash s right arm. Officer H., who had been standing in the background while Officer R. questioned Nash, approached from the other side and tried to control Nash s left arm. Nash continued to be noncompliant and was pulling away. ¶7 During the struggle, Nash grabbed Officer R. s radio off of his belt and made a move towards his gun. struck Nash with a forearm to the neck. Officer R. After that, Officer R. was able to gain control of Nash s right arm. However, Nash rolled over onto his stomach and on top of his left arm, at which point Officer B. stepped in to assist Officer R. in getting Nash s left hand out from under his body and behind his back. Sergeant G. grabbed Nash s feet and pulled them out from under him [t]o ruin his support base. When the officers were unable to get both of Nash s hands behind his back, Officer R. told Officer H. to tase Nash. Officer H. tased Nash in the shoulder for a couple of seconds. Officer B. was finally able to pull Nash s arm out from underneath him, and the officers handcuffed him. ¶8 Nash was charged with one count of resisting arrest. Following a jury trial, Nash was convicted as charged. The court suspended imposition of sentence and imposed a three year 4 period of probation. This timely appeal followed. DISCUSSION ¶9 Having considered defense counsel s brief and examined the record for reversible error, see Leon, 104 Ariz. at 300, 451 P.2d at 881, we find none. The imposition of probation falls within the range permitted by law, and the evidence presented supports the conviction. As far as the record reveals, Nash was represented by counsel at all stages of the proceedings, and these proceedings were conducted in compliance with his constitutional and statutory rights and the Arizona Rules of Criminal Procedure. ¶10 684 Pursuant to State v. Shattuck, 140 Ariz. 582, 584-85, P.2d 154, 156-57 appeal have ended. (1984), counsel s obligations in this Counsel need do no more than inform Nash of the disposition 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. Nash has thirty days from the date of this decision in which to proceed, if he desires, with a pro se petition for review. 5 motion for reconsideration or CONCLUSION ¶11 The conviction and sentence are affirmed. ____/s/______________________ JOHN C. GEMMILL, Judge CONCURRING: ____/s/__________________________ DIANE M. JOHNSEN, Presiding Judge ____/s/__________________________ MICHAEL J. BROWN, Judge 6
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