STATE v. STELTER

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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. SCOTT ROMAN STELTER, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 07/03/2012 RUTH A. WILLINGHAM, CLERK BY: sls 1 CA-CR 10-0762 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-141312-002 DT The Honorable Arthur T. Anderson, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Tennie B. Martin, Deputy Public Defender Attorneys for Appellant Phoenix H A L L, Judge ¶1 Scott Roman Stelter (defendant) convictions and the sentences imposed. appeals from his For the reasons set forth below, we affirm. ¶2 Defendant's appellate counsel 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), advising that, after a diligent search of the record, she was unable to find any arguable grounds for reversal. This court granted defendant an opportunity to file a supplemental brief, which he has not done. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). He did, however, request that his counsel submit four issues in her brief for our review. ¶3 We review for fundamental error, error that goes to the foundation of a case or takes from the defendant a right essential to his defense. See State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988). We view the evidence presented at trial in a light most favorable to sustaining the verdict. State v. Cropper, 205 Ariz. 181, 182, ¶ 2, 68 P.3d 407, 408 (2003). ¶4 with On June 25, 2009, defendant was charged by indictment count one: aggravated assault, a class three dangerous felony in violation of Arizona Revised Statutes (A.R.S.) section 13-1204(A)(1) (Supp. 2011), and count two: aggravated assault, a class four felony in violation of § 13-1204(A)(3). 2 ¶5 The following evidence was presented at trial. On June 19, 2009, Adam M. (the victim), Amber H., and Teresa M. went to a club at the Westgate Plaza. The victim was visiting friends in Phoenix prior to moving to Virginia and he planned to sleep at Amber s apartment that night and leave the next morning to drive to Virginia. The victim testified that after leaving the club, he made a wrong turn driving to Amber s apartment complex. This upset Amber and she told the victim to drop her off because she didn t want to ride with [him]. dropped Amber and Teresa off at a gas station. The victim He then called his friend, Justin A., explained what happened, and asked if he could stay at Justin s house that night. ¶6 Justin suggested that he pick up the victim because the victim had been drinking alcohol. The victim explained that he was at Amber s apartment complex to get his belongings. When Justin arrived at the apartment complex, he told the victim, why don t you just park your Jeep, get in the car, I ll take you back to my house and we ll square everything away in the morning. reddish Justin color testified vehicle with that six a few occupants, minutes later, including a Amber, drove into the apartment complex and the victim approached the vehicle. Justin stated that the victim leaned into the driver s side window to speak with Amber and tried to just reason with her to let him get his belongings, but Amber refused. 3 After a few minutes, the victim relented and told Amber that he would come back in the morning. The driver then told the victim that wasn t going to happen, . . . [and the driver] was going to knock [the victim] out. He also told the victim that he was going mouth. to [p]iss in [his] The victim asking the driver to step out of the vehicle. responded by After the driver exited the vehicle, the driver and the victim began fighting. They both fell to the ground, and Justin attempted to stop the fight. The victim stated that he then heard a car door open and shut, and saw someone coming up, and that was it. It was lights out. ¶7 Justin testified that when he tried to separate the driver and the victim, [the victim] kind of let go of the driver. Justin then saw defendant s foot smash[] [the victim] in the top of the head. completely lifeless and was bleeding. down and The victim became [H]is eyes rolled up in the back of his head and he was out. completely. slam[] He was unconscious Justin continued that all hell broke loose and [t]he four males, [including defendant], that were in the car were stomping the victim. Justin saw feet, just one right after another from all directions coming in on [the victim] for about two minutes. Defendant was the most aggressive and stomping on the victim with the [most] gusto[.] Justin stood over the victim, straddled the victim s body between his legs, 4 and attempted to deflect some blows with [his] own legs to keep [defendant and the three other men] from hitting [the victim s] head. Justin frantically tr[ied] to fight [the four men] off of the victim. After a couple of minutes, the four males got back into the red vehicle and started driving away. Justin then heard brakes and the driver reversed the vehicle. The four males started came back, surrounded stomping [the victim] again. [the victim], and Justin described the event as vicious[] and brutal[]. . . . It was all just raw . . . animalistic rage. There was nothing human about that moment. After a resident in the apartment complex stated he had called the police, the men stopped stomping on the victim. ¶8 Teresa testified that defendant and three other males that had been in the red vehicle attack[ed] the victim and forcefully punched and knocked [the victim] to the ground. After the victim was on the ground Teresa stated that the four men continued to repeatedly kick him and beat him and punch him even after he was unconscious. ¶9 Officer David Ebert and other officers of the Peoria Police Department responded to an aggravated assault call at an apartment complex located at 83rd Avenue and Thunderbird. Ebert testified that the victim was lying on his back in a parking space and appeared to be unconscious. He also testified that he took over immobilizing the victim from Justin. 5 He tried to speak with the victim, however the victim was only moaning, groaning. ¶10 Detective Michael Connolly picked defendant up, read defendant his Miranda1 rights, and proceeded to interview him. Detective Connelly testified that defendant s answers were inconsistent and defendant initially stated that he did not know whether anyone had kicked the victim, but subsequently provided specific details about the victim being kicked. Defendant admitted to Detective Connolly that he was under the influence of alcohol and extremely angry at the victim because the victim had punched his friend, the driver. Defendant stated that two of the males in the vehicle had kicked the victim and that the victim was out cold. Defendant conceded that he may have lost his cool and kicked the victim. Defendant also initially told Detective Connelly that he and the other males left after the incident occurred, but later admitted that he exited a vehicle a second time to confront the victim after the victim had been rendered unconscious. Defendant elaborated that although a reasonable person would have gotten into the car and just left after the altercation ended, defendant exited the vehicle a second time to talk . . . shit. ¶11 Dr. Ross McArthur testified that the victim sustained a small temporal bone fracture and an extraaxial hemorrhage on 1 Miranda v. Arizona, 384 U.S. 436 (1966). 6 the left side of his head. He also sustained frontal contusions on the right side of his brain, and a small shift of the midline due to the pressure from the bleeding on the left side. victim had fractures and additional a injuries fracture of the of bilateral superior small wall of The nasal the left maxillary sinus. ¶12 Dr. Paul LaPrade testified that he performed three surgeries on the victim in order to remove a blood clot from the victim s brain, which consisted of taking a segment of skull bone out to expose the brain, and to subsequently replace the section of the victim s skull that had been removed. ¶13 The jury found defendant guilty as charged. The jury further found that count one was a dangerous offense. ¶14 The mitigated trial prison court term of sentenced six defendant years for to count a slightly one, and a presumptive prison term of two and one-half years for count two, to be served concurrently. Defendant received 115 days of presentence incarceration credit. ¶15 At defendant s request, counsel presents the following issues on appeal: (1) insufficiency of the evidence, (2) failure of trial court to give lesser-included instructions, (3) use of hearsay, and (4) abuse of discretion by the trial court in not granting Rule 20 motion. 7 ¶16 We construe defendant s first and fourth issues as a challenge to the sufficiency of the evidence. We review the sufficiency of the evidence by determining whether substantial evidence supports the jury s finding and we view the facts in the light most favorable to upholding the verdicts. Kuhs, 223 Ariz. 376, 382, ¶ 24, 224 P.3d 192, State v. 198 (2010). Substantial evidence is adequate proof that defendant was guilty beyond a reasonable doubt. Id. We will set aside a jury verdict for insufficiency of the evidence only when it is clear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury. State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). ¶17 Defendant was convicted of aggravated assault for causing serious physical injury to another. Ariz. Rev. Stat. § State 13-1204(A)(1) (Supp. 2011). Here, the presented evidence from which the jury could reasonably have concluded that defendant assaulted and caused serious physical injury to the victim: aggressively (1) stomp Justin on the testified victim s that head he saw with his defendant foot; (2) Teresa testified that she saw defendant repeatedly attack and kick the victim after he was unconscious; (3) defendant admitted that he was extremely angry with the victim and may have kicked the victim; and (4) the victim sustained serious injuries to his 8 face and brain that required multiple surgeries and extensive medical intervention and care. ¶18 Defendant was also convicted of aggravated assault for using force that caused temporary but substantial disfigurement, temporary but substantial loss or impairment of any body organ or part or a fracture of any body part. Rev. Stat. § 13-1204(A)(3) (Supp. 2011). evidence presented at trial to Ariz. There was sufficient support the jury s second aggravated assault conviction: (1) Justin and Teresa testified they saw defendant repeatedly stomp or kick the victim; (2) defendant admitted he may have kicked the victim; (3) the victim sustained multiple fractures in his head and face; and (4) the victim had three surgeries on his brain to repair damage caused by defendant removed. and had to temporarily have part of his skull We therefore conclude there was sufficient evidence to convict defendant of both counts of aggravated assault and that the trial court did not err in denying defendant s Rule 20 motion. ¶19 not Next, defendant claims that the trial court erred by providing the lesser-included instruction assault for both aggravated assault counts. of misdemeanor We review a trial court s denial of a requested jury instruction for an abuse of discretion. State v. Hurley, 197 Ariz. 400, 402, ¶ 9, 4 P.3d 455, 457 (App. 2000). 9 ¶20 Assault is defined as [i]ntentionally, knowingly or recklessly causing any physical injury to another person or intentionally placing another person in reasonable apprehension of imminent physical injury or [k]nowingly touching another person with person. the Ariz. intent Rev. to Stat. injure, § insult 13-1203(A) or provoke (2010). A such lesser- included instruction requested by the defendant should be given if the State failed to prove an element of the greater offense and the evidence is sufficient to support a conviction on the lesser offense. State v. Wall, 212 Ariz. 1, 4, ¶ 18, 126 P.3d 148, 151 (2006) (citation omitted). Thus, the evidence must be such that a rational juror could conclude that the defendant committed only the lesser offense. Id. The evidence here clearly supports the trial court s decision to deny defendant s request for previously lesser-included stated, two offense witnesses instructions. testified As that they we saw defendant repeatedly kick and attack the victim, even after the victim was unconscious. Defendant admitted that he was extremely angry with the victim and may have kicked the victim. The victim sustained a temporary, substantial impairment of his brain, had skull and nasal fractures, had to undergo multiple surgeries, and received extensive medical care as a result of defendant s actions. concluded that Thus, the jurors could not have rationally defendant only committed 10 a lesser offense of assault. The denying trial court defendant s did motion not for abuse a its discretion lesser-included in offense instruction. ¶21 Finally, defendant argues that the court improperly permitted hearsay at Detective Connelly the to trial. testify The to trial court defendant s allowed statement to Detective Connelly that one of the co-defendants, Amer Salman, told defendant immediately after the attack that he had kicked the victim in the head. The court found that the statement was being offered to impeach defendant s credibility and not offered for the truth of the matter asserted that Salman kicked the victim in the head. The express purpose of [Arizona Rules of Evidence] 806 is to allow a party to attack the credibility of the hearsay declarant. See State v. Huerstel, 206 Ariz. 93, 104, ¶ 42, 75 P.3d 698, 709 (2003). limited purpose is impeachment. Id. By its terms, the rule s In this case, Detective Connelly was permitted to testify that although defendant had initially stated he did not know if the victim had been kicked, defendant subsequently immediately after the stated attack that on kicked the victim in the head. Salman the victim told that defendant Salman had This testimony was properly permitted, pursuant to Arizona Rule of Evidence 806, for the limited purpose of impeaching discern no error. 11 defendant s credibility. We ¶22 We have read and considered counsel's brief and have searched the entire record for reversible error. Ariz. at 300, 451 P.2d at 881. See Leon, 104 We find none. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. Defendant was given an opportunity to speak before sentencing, and the sentences imposed were within statutory limits. Furthermore, based on our review of the record, there was sufficient evidence for the jury to find that defendant committed the offenses for which he was convicted. ¶23 After obligations appeal have the pertaining ended. filing to of this defendant's Counsel need do decision, counsel s representation no more than in this 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. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 15657 (1984). Defendant has thirty days from the date of this decision to proceed, if he desires, with a pro per motion for 12 reconsideration or petition for review. Accordingly, defendant's convictions and sentences are affirmed. _/s/____________________________ PHILIP HALL, Judge CONCURRING: _/s/__________________________________ PATRICIA A. OROZCO, Presiding Judge _/s/__________________________________ JOHN C. GEMMILL, Judge 13

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