State v. Felder

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.S 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. ODIS FELDER, Appellant. DIVISION ONE FILED: 07/21/2011 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0407 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-113798-001DT The Honorable James T. Blomo, Judge Pro Tempore AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Terry J. Adams, Deputy Public Defender Attorneys for Appellant K E S S L E R, Presiding Judge Phoenix Phoenix ¶1 Odis Felder ( Appellant ) filed this appeal in accordance with Anders v. California, 386 U.S. 378 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), following his conviction of one count of aggravated assault, a class three dangerous felony and a domestic violence offense under Arizona Revised Statutes ( A.R.S. ) section 13-105(13) (2010), -1204 (Supp. 2010), and -3601 (Supp. 2010)1 and one count of unlawful imprisonment, a class six felony and a domestic violence offense under A.R.S. § 13-1303 (2010), and -3601. ¶2 that Finding no arguable issues to raise, counsel requested this Appellant Court was search given the the record for opportunity to fundamental file a error. pro per supplemental brief, but did not file one. ¶3 After reviewing the entire record, we conclude that the evidence is sufficient to support the verdicts and there is no reversible error. Therefore, we affirm Appellant s convictions and sentences. FACTUAL AND PROCEDURAL HISTORY ¶4 Prior to the incident for which Appellant was indicted and found guilty, Appellant and K.C. had been dating each other 1 We cite the current version of the aggravated assault statute, as well as the dangerous offense and domestic violence statutes, because no revisions material to this decision have occurred since the underlying events in this case. 2 for almost two years and lived with each other from April of 2007 until April of 2008. ¶5 On June 26, 2008, K.C. was at home waiting for her seventeen-year-old son, J.W., to come home. Appellant had picked up J.W. earlier that day to visit with Appellant s son. Appellant returned J.W. to his home at roughly 10:00 p.m. Upon arriving, bedroom Appellant where an entered argument the house went into K.C. s ensued. quickly and At some point, Appellant asked K.C. if she wanted the relationship to be over. K.C. replied that she did. ¶6 After being informed that the relationship was over, Appellant left the bedroom. However, rather than leaving the house, Appellant retrieved a butcher s knife from the kitchen and returned with it to the bedroom. Appellant then proceeded to throw K.C. off of the bed and onto the floor, kick her once, hit her multiple times with the handle of the repeatedly slap her with the blade of the knife. Appellant inflicted three or four cuts on the knife, and In doing so, left side of K.C. s face, one of which was roughly an inch long, resulting in significant bleeding and substantial bruising. ¶7 During the attack, K.C. yelled for J.W. to call 911. Rather than immediately calling the police, J.W. went to the bedroom to investigate what was going on. Upon seeing the condition of his mother, J.W. attempted to flee to a safe place 3 from which he could call 911. However, Appellant pursued J.W. and took J.W. s cell phone away at knife point. Appellant then made J.W. return to the bedroom, where Appellant confined him and his mother by holding the knife and standing in front of the only exit from the room. ¶8 Once Appellant had K.C. and J.W. in the room, K.C. requested that Appellant allow J.W. to retrieve some ice and a towel to try to stop her face from bleeding and to prevent it from swelling up. However, Appellant refused to let J.W. leave the room. ¶9 Appellant ultimately decided to just leave the house at roughly 4:00 a.m. After Appellant left, K.C. and J.W. called the police. ¶10 At 4:11 a.m., Detective E.F. arrived at the house. recorded K.C. s and J.W. s statements, collected the He bloody butcher s knife, which he secured in his police vehicle, and took photographs of the scene and of K.C. s various injuries. ¶11 The grand jury indicted Appellant for aggravated assault, a class three dangerous felony and a domestic violence offence, and unlawful imprisonment, a class six felony and a domestic violence offense. At the close of the State s evidence the superior court denied defense counsel s Rule 20 motion for judgment of acquittal. counts. The jury found Appellant guilty on both It further found that the aggravated assault was a 4 dangerous felony and that both counts constituted domestic violence. ¶12 The trial court sentenced Appellant to a mitigated term of six years for aggravated assault and a presumptive one year term for unlawful imprisonment. concurrently, and Appellant The two sentences run received 115 days of presentence incarceration credit for both sentences. ¶13 Appellant timely appealed. See Arizona Criminal Procedure ( Ariz. R. Crim. P. ) Rule 31.3. Rules of We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution, as well as A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and -4033(A)(1) (2010).2 STANDARD OF REVIEW ¶14 This Court fundamental error. must review the entire record for State v. Barraza, 209 Ariz. 441, 447, ¶ 19, 104 P.3d 172, 178 (App. 2005). Fundamental error is error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). Defendant must also show that such 2 Again, we cite the current version of these statutes because no revisions material to this decision have since occurred. 5 error prejudiced him. Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607. On review, we view the facts in the light most favorable to sustaining the jury s inferences against the defendant. verdict and resolve all State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). DISCUSSION ¶15 This Court fundamental error. has reviewed the entire record for After careful review of the record, we find no meritorious grounds for reversal of Appellant s conviction or modification of the sentence imposed. The record reflects Appellant had a fair trial and was present and represented by counsel at all critical stages of trial. Appellant was given the and opportunity conducted in Procedure. to speak accordance at with sentencing the Arizona the Rules trial of was Criminal The evidence is sufficient to sustain the verdict and the trial court imposed proper sentences for Appellant s offenses. I. Substantial evidence in the record supports the jury s verdict. ¶16 In evidence, reviewing [w]e a construe claim the of the evidence sufficiency in the of light the most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant. 431, 436, ¶ 12, 967 P.2d 106, 6 State v. Greene, 192 Ariz. 111 (1998). We review the evidence presented to determine if substantial evidence exists to support the jury verdict. State v. Stroud, 209 Ariz. 410, 411, ¶ 6, 103 P.3d 912, 913 (2005). Substantial evidence has been described as more than a mere scintilla and is that which reasonable persons could accept as sufficient guilty verdict beyond a reasonable doubt. to support a State v. Hughes, 189 Ariz. 62, 73, 938 P.2d 457, 469 (1997) (internal quotation marks omitted). evidence Reversible occurs only error where based there on is insufficiency a complete probative facts to support the conviction. of the absence of State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)). A. ¶17 Aggravated Assault For the jury to find Appellant guilty of aggravated assault under intentionally, A.R.S. § knowingly 13-1204, or it had recklessly to caused find any Appellant physical injury to another person and that Appellant used a deadly weapon or dangerous instrument in the commission of such crime. ¶18 the The State presented substantial evidence to support jury s verdict. Both of the victims testified that Appellant kicked K.C. and repeatedly cut her with a butcher s knife. The injuries sustained were corroborated by Detective E.F. s testimony and the photographs he had taken that evening. 7 ¶19 The testimony of the victims coupled with the testimony of Detective E.F. is sufficient to support Appellant s conviction for aggravated assault. B. ¶20 Dangerous Finding For the jury to find that Appellant s aggravated assault conviction constituted a dangerous offense under A.R.S. § 13-105(13), it had to find either that Appellant used or exhibited in a threatening manner a deadly weapon or dangerous instrument, or that Appellant knowingly inflicted a serious physical injury on another person. ¶21 Sufficient Appellant s evidence aggravated supports assault was a the dangerous finding offense. that At trial, the victims testified that Appellant used a knife, which constitutes a deadly weapon or dangerous instrument, to inflict serious physical injury to K.C. s face. This testimony was corroborated by the testimony of Detective E.F. as well as the photographs he took. This is sufficient evidence to support the finding of dangerousness. C. ¶22 Unlawful Imprisonment For imprisonment the jury under to A.R.S. find § Appellant 13-1303, guilty it had to of unlawful find that Appellant knowingly restrained another person. ¶23 The record contains Appellant s conviction. sufficient evidence to support J.W. testified at trial that Appellant 8 forced him into the bedroom with his mother, held them in the room at knife point, and would not let them leave the room for several hours. testimony. J.W. s The testimony testimony of was both corroborated victims is by K.C. s sufficient to support Appellant s conviction for unlawful imprisonment. D. ¶24 Domestic Violence Finding For the jury to find that either of the counts constituted domestic violence under A.R.S. § 13-3601, it had to find that the relationship between Appellant and the victims is one of . . . persons residing or having resided in the same household. A.R.S. § 13-3601(A)(1). The victims testified that they and Appellant had lived together for a year shortly before the incident. This is sufficient evidence to support the finding that both counts constituted domestic violence. II. Appellant s sentences were appropriate. ¶25 At the sentencing hearing, the State did not allege any aggravating factors. Moreover, the trial court found Appellant s lack of a criminal history coupled with his service in Vietnam to be mitigating factors. ¶26 The court sentenced Appellant to a mitigated term of six years for aggravated assault and a presumptive one year term, running concurrently to his other sentence, for unlawful imprisonment. These sentences were appropriate under A.R.S. §§ 13-702(D) (2010) and -704(A) (2010). 9 ¶27 Appellant received 115 days incarceration credit for both counts. of presentence There was no error in the calculation of Appellant s pre-sentencing incarceration credit. CONCLUSION ¶28 For the foregoing convictions and sentences. reasons, we affirm Appellant s Upon the filing of this decision, counsel shall inform Appellant of the status of his appeal and his future appellate options. obligations, appropriate unless, for upon submission petition for review. Defense counsel has no further review, to the counsel Arizona finds an Supreme issue Court by See State v. Shattuck, 140 Ariz. 582, 584- 85, 684 P.2d 154, 156-57 (1984). Upon the Court s own motion, Appellant shall have thirty days from the date of this decision to proceed, if he so desires, with a pro per motion for reconsideration or petition for review. /S/ DONN G. KESSLER, Presiding Judge CONCURRING: /S/ DIANE M. JOHNSEN, Judge /S/ SHELDON H. WEISBERG, Judge* *Pursuant to Article VI, Section 3 of the Arizona Supreme Court designated Weisberg, as appointed to serve as a Arizona Court of Appeals, Division One, 10 the Arizona Constitution, the Honorable Sheldon H. judge pro tempore in the to sit in this matter.

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