Opinion
No. 1 CA-CR 11-0085
02-28-2012
STATE OF ARIZONA, Appellee, v. TERRY WAYNE TOOLOOZE, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Spencer D. Heffel, Deputy Public Defender Attorneys for Appellant
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
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-006139-001DT
The Honorable Paul J. McMurdie, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Division
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Spencer D. Heffel, Deputy Public Defender
Attorneys for Appellant
Phoenix SWANN, Judge
¶1 Terry Wayne Toolooze ("Defendant") timely appeals from his conviction for aggravated assault. Pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), defense counsel advises us that a thorough search of the record has revealed no arguable question of law and requests that we review the record for fundamental error. See 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 on or before November 7, 2011. He has not done so.
¶2 Finding no fundamental error after a thorough review of the record, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3 On March 1, 2010, Steve Juarez was on duty as an assistant manager at a Walmart. After he received a call on his radio about a theft inside the store, he headed to the east entrance. Upon exiting the Walmart, Juarez saw several people chasing Defendant as he ran from the store. Juarez joined the chase and pursued Defendant into the Game Stop, a store next to the Walmart.
¶4 Because Defendant ran into the back of the Game Stop, Juarez and the other Walmart employees left the store and waited outside its front door. When Defendant was chased from the Game Stop by that store's staff, he was surrounded by the pursuing Walmart employees. Defendant raised his arm as if to strike Juarez, so Juarez backed away and Defendant fled. Juarez chased Defendant around the corner of the building. Defendant picked up a rock which was "a little bit smaller than baseball size." With Defendant and Juarez approximately 15 feet apart, Defendant threw the rock at Juarez's head. Juarez ducked, and the rock landed 10 or 15 feet behind him. Defendant jumped on a bicycle that had been left by a dumpster and began to ride away. Defendant was apprehended by an off-duty police officer.
¶5 The state indicted Defendant on three counts: Count 1, theft, a class 6 felony; Count 2, aggravated assault, a class 3 felony; and Count 3, assault, a class 1 misdemeanor. Before a jury was selected, the state moved to dismiss Counts 1 and 3. The motion was granted, those counts were dismissed with prejudice, and the trial proceeded on Count 2 alone.
¶6 At the trial, Juarez testified that he was afraid that the rock Defendant threw might have seriously injured him. He also testified that the rock Defendant had thrown was similar in size to a rock depicted in a photograph. That photograph was taken by an officer at the crime scene and properly admitted into evidence.
¶7 In Defendant's closing argument, defense counsel criticized the police for not identifying the exact rock that had been thrown. Counsel admitted that Defendant "is absolutely guilty of assault," but argued that "he's not even close to being guilty of the aggravated assault." In rebuttal, the prosecutor told the jury that he had predicted that defense counsel "would start blaming the police, because he knows he has a guilty client." Defense counsel raised no objection to the prosecutor's statement. The jury found Defendant guilty of aggravated assault.
¶8 Following the verdict, the trial court invoked Ariz. R. Crim. P. 24.1 and ordered the parties to address two issues: whether the state had committed prosecutorial misconduct in its rebuttal argument, and whether Defendant had waived that error because of defense counsel's failure to object. After a hearing held on December 3, 2010, the trial court concluded that the prosecutor's statement was misconduct. It found, though, that there was no reasonable probability that the trial would have had a different outcome without the prosecutor's misconduct.
¶9 Defendant was sentenced to the presumptive term of 7.5 years in prison with credit for 329 days of presentence incarceration. Because probation will follow Defendant's sentence in a separate criminal conviction, the court waived Defendant's community supervision in this matter. Defendant timely filed his notice of appeal.
DISCUSSION
¶10 We have read the brief written by counsel, and we have reviewed the entire record. Leon, 104 Ariz. at 300, 451 P.2d at 881. A person commits assault by "[i]ntentionally placing another person in reasonable apprehension of imminent physical injury." A.R.S. § 13-1203(A)(2). It becomes aggravated assault when "the person uses a deadly weapon or dangerous instrument." A.R.S. § 13-1204(A)(2). Here, Defendant conceded at trial that he was guilty of assault. The only question was whether the rock that Defendant threw could be considered a "deadly weapon or dangerous instrument." The jury heard testimony from Juarez about the rock and how Defendant threw it. The jury saw a photograph of what was either the same rock thrown or a rock very similar to it. The record therefore reflects that the jury had sufficient evidence to convict Defendant for aggravated assault. State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987) ("To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury.").
¶11 We agree with the trial court that the prosecutor's statement in rebuttal -- that defense counsel knew his client was guilty -- was prosecutorial misconduct. State v. Neil, 102 Ariz. 299, 300, 428 P.2d 676, 677 (1967) (citation omitted) (stating that the prosecutor's closing argument must be "based on facts which the jury is entitled to find from the evidence and not on extraneous matters that were not or could not be received in evidence."). But the mere fact that such misconduct took place does not mean that Defendant must have a new trial.
¶12 For the determination of mistrial to be appropriate, the prosecutor's "improper comments must be so serious that they affected the defendant's right to a fair trial." State v. Newell, 212 Ariz. 389, 403, ¶ 67, 132 P.3d 833, 847 (2006) (citation omitted). And because Defendant failed to object to the comment when it was made, the trial court examined the seriousness of the prosecutor's statement under the correct standard: fundamental error. State v. Moody, 208 Ariz. 424, 464, ¶ 179, 94 P.3d 1119, 1159 (2004).
¶13 Here, the prosecutor's comment was restricted to his rebuttal; it was not an element of his theory of the case or a recurring theme in his argument. Further, the trial court found that because of Juarez's testimony and the photograph of the rock there was no reasonable probability that the outcome of the trial would have been different. In other words, the trial court concluded that the prosecutor's comment did not cause Defendant prejudice, which is essential to a determination of fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005). The trial court's conclusion was correct.
CONCLUSION
¶14 We have reviewed the record for fundamental error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881. All proceedings were conducted according to the Arizona Rules of Criminal Procedure, the evidence presented at trial supports the verdict, and Defendant was sentenced within the parameters of the law. Accordingly, we affirm Defendant's conviction and sentence. Defense counsel's obligations pertaining to this appeal have come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Unless, upon review, counsel discovers an issue appropriate for petition for review to the Arizona Supreme Court, counsel must only inform Defendant of the status of this appeal and his future options. Id. Defendant has 30 days from the date of this decision to file a petition for review in propria persona. See Ariz. R. Crim. P. 31.19(a). Upon the court's own motion, Defendant has 30 days from the date of this decision in which to file a motion for reconsideration.
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PETER B. SWANN, Judge
CONCURRING:
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MARGARET H. DOWNIE, Presiding Judge
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DONN KESSLER, Judge