State v. Jones
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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. ) ) ERIC JOHN JONES, ) ) Appellant. ) ) __________________________________) No. 1 CA-CR 10-0430 DIVISION ONE FILED: 06/21/2011 RUTH A. WILLINGHAM, CLERK BY: GH DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-006358-001 DT The Honorable Kristin C. Hoffman, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Thomas A. Gorman Attorney for Appellant Phoenix Sedona S W A N N, Judge ¶1 Eric John Jones ( Defendant ) timely appeals from his conviction on two counts of aggravated assault, and one count each of attempted aggravated assault and misconduct involving weapons. Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel has advised us that a thorough search of the record has revealed review no the arguable record question for of law, fundamental and requests error. See that we State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391 (App. 1993). Defendant was given an opportunity to file a supplemental brief in propria persona but did not. FACTS AND PROCEDURAL HISTORY1 ¶2 Cook, On May Hillman 13, and 2003, Huskisson Phoenix were Police members Officers of a Cameron, Neighborhood Enforcement Team that conducted felony warrant pickups. The four officers, all wearing police uniforms and riding in marked patrol vehicles, were part of a surveillance detail assigned to take Defendant into custody. As Cameron and Cook approached the hotel where Defendant was staying, they saw him driving his car toward them. Defendant s vehicle took off back to the hotel and the officers followed. Hillman and Huskisson also responded to the hotel in their individual patrol cars. Defendant parked at the hotel and the officers surrounded his car. ¶3 The four officers and Defendant exited their vehicles at the same time. The officers yelled Police, stop and told 1 We view the evidence in the light most favorable to sustaining the verdicts and resolve all inferences against appellant. State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997). 2 Defendant to put his hands up where [officers] could see them. Instead, Defendant reached behind his back and pulled out a large handgun and pointed Hillman and Huskisson were. would shoot Defendant. the other it towards the northeast where Cameron and Cook believed Defendant officers. Cook fired one round at Defendant ducked down and started crawling . . . hunched over toward some stairs. ¶4 Fearing he was an easy target, Cameron took cover behind a pillar as he tracked Defendant s movements. He saw Defendant sit down in the stairwell with his back against the wall and point the gun at him. Cameron fired one round and yelled at Defendant to drop his weapon, but Defendant ignored his commands and continued to point the gun at him. Cameron fired two more rounds and Cook heard two or three rounds come immediately Defendant from yelling Defendant s at the location. officers in an Hillman heard [a]gitated, angry voice but could not discern Defendant s words. ¶5 Defendant put his hands up, yelled okay, okay and started scooting downstairs. Defendant still held his Cameron could not see whether gun. Although Cameron ordered Defendant to stop and keep his hands up, Defendant continued to move himself a few feet and then put his hands back up as he worked his way down the hotel 3 breezeway and ignored the officer s commands to stop, keep his hands up. Cameron still had no idea what Defendant had done with his weapon. ¶6 When inside opened Defendant the crawled inside. reached door, a hotel Defendant room dropped door, his someone weapon, and Cameron placed a fresh magazine in his weapon and relocated to a safer place in case [Defendant] came out shooting. ¶7 The Special Assignment Unit ( SAU ), tactically equipped and trained to handle high-risk situations, arrived and took over. gun. SAU officers retrieved and impounded Defendant s Eventually the other person in the hotel room came out, and then Defendant, who had been shot in the leg, was taken into custody. He was transported to the hospital in an ambulance; Phoenix Police Officer Vine rode with Defendant. Vine issued Miranda warnings, which Defendant said he did not understand. Defendant later told understand his rights. the treating paramedic that he did At the hospital Phoenix Police Officer Petrosino attempted to again advise Defendant of his Miranda rights, but Defendant cut [him] off and said that he had heard them a bunch of times and he knew what his rights were. Defendant agreed to answer questions and admitted he saw the officers at the scene and heard them yelling don t move, or stay there when he was by his vehicle. When Defendant realized he could not get back to the room before the officers reached 4 him, he pulled out a gun and displayed it. Defendant also admitted that he fired the gun once or twice into the air from the stairwell because he wanted [the officers] to know that he had a gun and that he wasn t afraid to use it. ¶8 Defendant was indicted on three counts of aggravated assault, all class 2 dangerous felonies, for using a dangerous weapon to intentionally ( Count 2 ), engaged in and place Huskisson official Hillman ( Count duties, in ( Count 3 ), all reasonable 1 ), peace Cameron officers apprehension of imminent physical injury; and one count of misconduct involving weapons ( Count 4 ), a class 4 dangerous felony, for knowingly possessing a gun while being a prohibited possessor. amended the indictment to allege historical The state non-dangerous felonies, aggravating factors, and other crimes not committed on the same occasion for sentencing purposes.2 ¶9 Before trial, the court granted Defendant s motion for a Rule 11 examination and appointed experts to evaluate his competency to stand trial. After an evidentiary hearing, the court found Defendant competent to stand trial. ¶10 The case was tried to a jury. At the conclusion of the state s case, Defendant moved for a judgment of acquittal 2 On Defendant s motion, the trial court designated this as a complex case. 5 pursuant to Ariz. R. Crim. P. 20. The motion was denied. Defendant presented no witnesses or evidence. ¶11 After deliberations, the jury found Defendant guilty of Counts 1, 2 and 4, and of attempted aggravated assault on Count 3. The jury additionally found that all counts were dangerous offenses and that the officers were engaged in their official duties aggravation on the day of the hearing, the jury found incident. that After Defendant had an four prior felony convictions the trial court could use to enhance sentencing. ¶12 Defendant was sentenced to concurrent maximum terms of 28 years in prison for each of Counts 1 and 2; 20 years for Count 3; and 10 years for Count 4. Defendant was given 1,461 days presentence incarceration credit for each count. DISCUSSION ¶13 We have read and considered the briefs submitted by counsel and have reviewed the entire record. 300, 451 P.2d at 881. Leon, 104 Ariz. at We find no fundamental error. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and the sentence imposed was within the statutory range. Defendant was present at all critical phases of the proceedings and represented by counsel. properly impaneled and instructed. 6 The jury was The jury instructions were consistent with the offenses charged. The record reflects no irregularity in the deliberation process. I. RULE 20 MOTION3 ¶14 A judgment of acquittal is appropriate only when there is no substantial evidence to warrant a conviction. Substantial evidence is such proof that reasonable Rule 20. persons could accept as adequate and sufficient to support a conclusion of defendant s Mathers, 165 guilt Ariz. beyond 64, a doubt. 796 67, reasonable 866, P.2d 869 State v. (1990). Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). A. ¶15 Aggravated Assault (Officers Hillman and Cameron) A person commits assault by intentionally placing another in reasonable apprehension of imminent physical injury. A.R.S. § 13-1203(A)(2).4 An assault is aggravated if the person committing the assault uses a deadly weapon, or knows or has reason to know that the victim is a peace officer engaged in official duty. A.R.S. § 13-1204(A)(2), (5). 3 Although Defendant s Rule 20 motion was limited to Counts 1, 3, and 4, we review all counts. 4 We cite to the versions of statutes in effect at the time of the offense (May 13, 2003). 7 ¶16 Here, substantial evidence was presented for a reasonable jury to find Defendant guilty of aggravated assault on Hillman and Cameron. 1. ¶17 Both officers were dressed in police uniforms and rode inside that Engaged in Official Duties marked they patrol were cars, engaged in supporting their a reasonable official duties inference when they encountered Defendant and commanded him to stop, put up his hands, and drop his weapon. Additionally, Defendant told Petrosino that he knew they were police officers. 2. ¶18 Deadly Weapon Cameron, Cook, and Hillman saw Defendant holding the gun, which was presented at trial. Cook s testimony that he heard shots coming from the stairwell and Defendant s admission to Petrosino that he shot his weapon are evidence that the gun was loaded. 3. ¶19 gun Reasonable Apprehension of Imminent Physical Injury Cook and Cameron testified that Defendant pointed the in the direction of Hillman, and Defendant was going to shoot Hillman. pinned down behind his patrol car Defendant would shoot him if he moved. that they believed Hillman described being because he believed Cameron testified that he felt like an easy target and that he took cover to protect 8 himself. Cameron saw Defendant point his gun directly at him, and said Defendant ignored his commands to put down the gun. After Defendant went inside the hotel room, Cameron reloaded his gun in case Defendant came out shooting. B. Attempted Aggravated Assault (Officer Huskisson) ¶20 A person commits attempt if such person intentionally does anything which is a step in a course of conduct planned to culminate in the commission of an offense. State v. May, 137 Ariz. 183, 187, 669 P.2d 616, 620 (App. 1983). See also A.R.S. § 13-1001(A)(2). ¶21 Here, substantial evidence was presented for a reasonable jury to find Defendant guilty of attempted aggravated assault. Defendant Huskisson. gun, he pointed his gun in the direction of Even though Huskisson never saw Defendant or his knew the officers were pursuing Cameron and Cook with guns drawn and yelling. Defendant and saw He also heard an exchange of gunfire from two locations - one where Cook and Cameron were stationed, and the other the stairwell. Huskisson testified that his anxiety level was up and that he took cover behind a patrol car because he heard a firefight but did not know where the threat came from. feared for his life. 9 He further testified that he C. Misconduct Involving Weapons ¶22 Misconduct involving weapons occurs when a person knowingly possesses a deadly weapon while being a prohibited possessor. A.R.S. § 13-3102(A)(4). a loaded or unloaded revolver. ¶23 Here, reasonable collected jury from substantial to find outside A deadly weapon includes A.R.S. § 13-3101(A)(1), (4). evidence was presented Defendant guilty. Defendant s hotel The room. for weapon The a was state presented evidence that Defendant s civil rights to have a gun had not been restored. II. RULE 11 COMPETENCY ¶24 A defendant cannot be tried while incompetent. Bishop v. Super. Ct. (Roylston), 150 Ariz. 404, 406, 724 P.2d 23, 25 (1986). See also Rule 11.2 (allowing a party to request or the court to sua sponte order an examination to determine whether a defendant is competent to stand trial); Rule 26.5 (allowing a mental health examination at any time before sentence is pronounced); State v. Amaya-Ruiz, 166 Ariz. 152, 161-62, 800 P.2d 1260, 1269-70 (1990) (providing a defendant the right to a mental examination and hearing where reasonable grounds exist to indicate that the defendant is not able to understand the nature of the proceeding against defense ). 10 him and to assist in his ¶25 Here, we find no abnormalities documenting the Rule 11 evaluation process. in the record The trial court granted Defendant s request for a competency determination and appointed three experts to conduct an evaluation. See Rule 11.3 (requiring appointment of experts), Rule 11.5 (requiring hearing to determine competency). An evidentiary hearing was held, during which the competency examiners reports were admitted and one psychologist testified. See A.R.S. § 13-4505(A) (allowing testimony of mental health experts during competency hearing), -4510(A) Moreover, (allowing the parties court to granted present evidence Defendant s at requests hearing). to admit additional medical records that documented Defendant s physical and mental health history, and considered these documents in its ruling.5 See A.R.S. § 13-4510(A) (allowing parties to introduce other evidence regarding the defendant s mental condition ). In a detailed minute entry, the court documented numerous expert reports that opined Defendant was malingering and exaggerating and/or feigning the lack of cognitive ability. The court additionally noted that Defendant s demeanor in the courtroom was appropriate, that 5 he interact[ed] with his None of the evaluation reports or historical records, however, were included in the record. Defendant is responsible to provide a complete record on appeal. State v. Mendoza, 181 Ariz. 472, 474, 891 P.2d 939, 941 (App. 1995). When matters are not included in the record on appeal, the missing portion of the record is presumed to support the decision of the trial court. Id. 11 attorney and the Court during the proceedings, and that his presentation of deficits is unconvincing. It found Defendant competent to and that he has the capacity understand the proceedings and is able to assist counsel with [his] defense, if he so chooses. CONCLUSION ¶26 We affirm Defendant s conviction and sentence. Counsel s obligations pertaining to Defendant s representation in this appeal have ended. Counsel need do nothing more than inform Defendant of the status 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. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). On the court s own motion, Defendant shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review. /s/ __________________________________ PETER B. SWANN, Presiding Judge CONCURRING: /s/ ____________________________________ DANIEL A. BARKER, Judge /s/ ____________________________________ PATRICIA K. NORRIS, Judge 12
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