STATE v. MADRILL

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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. ) ) LUCIA MADRIL, ) ) Appellant. ) ) __________________________________) 1 CA-CR 11-0782 DIVISION ONE FILED: 4/16/2013 RUTH A. WILLINGHAM, CLERK BY: mjt DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2010-137600-001 The Honorable Steven P. Lynch, Commissioner AFFIRMED _________________________________________________________________ Thomas C. Horne, Attorney General By Joseph T. Maziarz, Acting Chief Counsel Criminal Appeals/Capital Litigation Section Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender Phoenix By Tennie B. Martin, Deputy Public Defender Attorneys for Appellant _________________________________________________________________ O R O Z C O, Judge ¶1 Lucia Madril (Defendant) appeals her conviction for aggravated assault, a class one misdemeanor. ¶2 Defendant s 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 this court that after a search of the entire appellate record, she found no arguable question of advises this law that court was that not frivolous. Defendant specific issues, and we do so below. wishes However, us to counsel address two Defendant was afforded the opportunity to file a supplemental brief in propria persona, but she has not done so. ¶3 Our obligation in this appeal is to review the entire record for reversible error. State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona (2003), Revised 13-4031 Statutes (2010), sections -4033.A.1 and (A.R.S.) (2010). 12-120.21.A.1 Finding no reversible error, we affirm. FACTS AND PROCEDURAL HISTORY ¶4 At approximately 1:10 a.m. on July 18, 2010, three deputies from the Maricopa County Sheriff s Office responded to a high priority call in Guadalupe regarding a fight in progress. When the deputies arrived, Deputy W. approached the rear of the property and encountered Defendant standing near the northwest corner. Defendant smelled of alcohol and struggled to walk, and her speech was slurred. 2 ¶5 As Deputy W. began interviewing Defendant, Defendant became uncooperative and attempted to walk away. After Defendant did not comply with Deputy W. s verbal requests to remain still, he took hold of the sleeve of Defendant s shirt. Defendant pulled her shirt from his hand, prompting Deputy W. to firmly grip Defendant s left arm. Because Defendant was uncooperative, Deputy W. restrained Defendant through a takedown maneuver. Deputy G. assisted Deputy W. in restraining and handcuffing Defendant. ¶6 Deputy G. and Deputy W. helped Defendant to her feet and sat her on the curb near Deputy G. s patrol vehicle. G. contacted the fire department abrasions on Defendant s forehead. uncooperative and highly after he noticed Deputy minor Because Defendant remained aggressive, the deputies placed Defendant in the rear of the patrol vehicle. ¶7 As the fire department arrived, Deputy W. discovered that Defendant had escaped from her handcuffs. As Deputy G. and Deputy W. removed Defendant from the patrol vehicle and rehandcuffed her, Defendant became verbally aggressive Deputy G. Due to safety concerns, Deputy G. refused to allow the fire department to address Defendant s injury. towards When Deputy G. attempted to place Defendant back into the patrol vehicle, she struck him in the groin with her right foot. 3 ¶8 Defendant was charged assault, a class six felony. convicted as charged. with one count of aggravated After a bench trial,1 Defendant was The court suspended Defendant s sentence and placed her on supervised probation for a period of eighteen months. Defendant timely appealed. DISCUSSION Sufficiency of the Evidence ¶9 When considering the sufficiency of the evidence, we view the evidence in the light most favorable to sustaining the verdict and reverse only if no substantial evidence supports the conviction. State v. Pena, 209 Ariz. 503, 505, ¶ 7, 104 P.3d 873, 875 (App. 2005). Substantial evidence is evidence that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant s guilt beyond a reasonable doubt. State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). ¶10 A person commits aggravated assault by [k]nowingly touching another person with the intent to injure, insult or provoke, and the person committing the assault knows or has reason to know that the victim is a peace officer, or a person summoned and directed by the 1 officer while engaged in the Prior to trial, the State moved to designate the charge as a class one misdemeanor and proceeded with a bench trial. 4 execution of any official duties. A.R.S. §§ 13-1203.A.3 (2010), -1204.A.8(a) (Supp. 2012).2 ¶11 Defendant knew or had reason to know Deputy G. was a peace officer because the deputies were in uniform, and at one point, Defendant was handcuffed and placed in the back of a patrol vehicle. Defendant specifically directed her belligerence towards Deputy G. before the assault. testified extended that one Defendant of her bent legs to down and, while kick Deputy G. verbal Deputy W. pivoting, in the she groin. Furthermore, Deputy S. witnessed the kick and testified that the kick did not occur as a result of Defendant falling. Thus, based on the testimony of Deputy W. and Deputy S., sufficient evidence supports the finding that Defendant was guilty of committing aggravated assault. Timeliness of Filings ¶12 Defendant argues the case should have been dismissed because the State missed filing deadlines. Defendant s argument does not reference a specific late filing; however, her counsel did repeatedly continue. object to the granting of State s motion to The decision to grant a motion to continue is within the sound discretion of the trial court. State v. Laffoon, 125 Ariz. 484, 486, 610 P.2d 1045, 1047 (1980). 2 The trial court s We cite the current version of the applicable statutes when no revisions material to this decision have occurred. 5 decision will not be disturbed unless there is a clear abuse of discretion and prejudice results. Id. Abuse of discretion occurs when the reasons given by the court for its action are clearly untenable, legally incorrect, or amount to a denial of justice. State v. Chapple, 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 n.18 (1983). ¶13 On continue trial, September August 1, 30, which 2011, 2011, was the set Defendant s State for filed September counsel a 1, raised motion 2011. timing to On issues concerning the motion to continue and requested to proceed with trial. The court granted the motion to continue in order to allow a judge with a better grasp of the facts to address the timing issues. for September A pretrial management conference was scheduled 6, September 7, 2011. 2011, and the trial date was reset for Although another motion to continue was not filed, the State did renew its request for more time at the pretrial management because the conference. State s motion However, to continue additional time were ultimately denied. we find and no error request for Also, Defendant s trial took place within the required time limits prescribed by Arizona Rule of Criminal Procedure 8. Judicial Bias ¶14 have Defendant been argues influenced as that a the result 6 trial of court s Deputy ruling G. s may previous employment as a courthouse security guard. We review for fundamental error when a defendant fails to object at trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To amount to fundamental error, the error must be clear, egregious, and curable only via a new trial. State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). ¶15 A trial judge is presumed to be unbiased and free of prejudice. 1225 State v. Rossi, 154 Ariz. 245, 247, 741 P.2d 1223, (1987). Bare allegations of bias and prejudice, unsupported by factual evidence, are insufficient to overcome the presumption of impartiality . . . . State v. Carver, 160 Ariz. 167, 173, 771 P.2d 1382, 1388 (1989). ¶16 Deputy G. was previously employed as a court security guard. No personal relationship, Deputy G. and the court. no concerns. We existed between At most, the court may have chatted with Deputy G. during breaks. had however, find Furthermore, Defendant s counsel nothing on the Defendant s allegation of bias and prejudice. record supporting As a result, the presumption of impartiality has not been overcome and does not rise to the level of fundamental error. CONCLUSION ¶17 We have read and considered counsel s brief and carefully searched the entire record for reversible error, and we have found none. See Clark, 196 Ariz. at 541, ¶ 49, 2 P.3d 7 at 100. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and substantial evidence supported the court s finding of guilt. Defendant was present and represented by counsel at all critical stages of the proceedings. At sentencing, Defendant and her counsel were given an opportunity to speak and the court imposed a legal sentence. ¶18 Counsel s representation in obligations this appeal pertaining have ended. to Defendant s Counsel need do nothing more than inform Defendant of the status of the appeal and her future options, unless counsel s review reveals an issue appropriate for submission petition for review. to the Arizona Supreme Court by State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant shall have thirty days from the date of this decision to proceed, if she so desires, with an in propria persona motion for reconsideration or petition for review. ¶19 For the foregoing reasons, Defendant s convictions and sentences are affirmed. /S/ ____________________________________ PATRICIA A. OROZCO, Presiding Judge CONCURRING: /S/ ___________________________ PETER B. SWANN, Judge /S/ _______________________________ LAWRENCE F. WINTHROP, JUDGE 8

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