Opinion
No. 2 CA-CR 2017-0037
02-27-2018
THE STATE OF ARIZONA, Appellee, v. MARIO MIRANDA VALENCIA, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Mariette Ambri, Assistant Attorney General, Tucson Counsel for Appellee Dean Brault, Pima County Legal Defender By Robb P. Holmes, Assistant Legal Defender, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e).
Appeal from the Superior Court in Pima County
No. CR20150813001
The Honorable Casey F. McGinley, Judge Pro Tempore
AFFIRMED
COUNSEL
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Mariette Ambri, Assistant Attorney General, Tucson
Counsel for Appellee
Dean Brault, Pima County Legal Defender
By Robb P. Holmes, Assistant Legal Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Espinosa authored the decision of the Court, in which Presiding Judge Vásquez and Judge Eppich concurred.
ESPINOSA, Judge:
¶1 In October 2016, Mario Valencia was convicted of three counts of aggravated assault, two counts of armed robbery, two counts of burglary, shoplifting, arson, aggravated criminal damage, disorderly conduct, discharging a firearm within city limits, unlawful use of a means of transportation, and prohibited possession of a deadly weapon. He was sentenced to a combination of concurrent and consecutive prison terms totaling twenty-one years. Valencia's sole argument on appeal challenges the sufficiency of the evidence for one of his aggravated assault convictions. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding the jury's verdicts. See State v. Fimbres, 222 Ariz. 293, ¶ 2 (App. 2009). All of Valencia's convictions in this case stem from what the state referred to at trial as a one-day "crime spree." Because Valencia has only challenged one of his aggravated assault convictions on appeal, we limit our factual recitation to the facts underlying that single charge.
¶3 On the morning of February 19, 2015, Marana Police Officer Daniel Rowan responded to "an urgent [radio] call" about the theft of a weapon from Wal-Mart. When the officer arrived on the scene, Wal-Mart personnel "flagged [him] down[,] yelling . . . that a subject just stole a gun—but it did have a trigger guard on it—and was trying to load the weapon." They pointed out the direction in which the thief, later identified as Valencia, was walking, and the officer approached him in his patrol car. The officer remained behind Valencia and opened his patrol car door to speak with him, staying back for his "personal safety" and that of others.
¶4 Valencia responded to the officer by "turn[ing] around and . . . put[ting] the shotgun to his throat," prompting Officer Rowan to quickly back up his car and radio his location for other officers to block off the area. A civilian vehicle then pulled up next to Rowan's patrol car, causing him to turn away from Valencia and draw his weapon and point it
at the other vehicle, fearing he was being flanked. That vehicle's driver, however, had approached to tell Rowan that Valencia's gun could not be fired because it had a trigger lock. Just then, Rowan heard the rifle fire. He immediately radioed that Valencia had fired the gun; within minutes, another officer arrived and drove into Valencia with his patrol car, ending the confrontation.
¶5 The state filed numerous charges against Valencia, including the aggravated assault of Officer Rowan. Prior to trial, Valencia moved to dismiss that charge as "insufficient as a matter of law," arguing Valencia "never threatened to shoot Officer Rowan, never aimed the firearm at Officer Rowan, and Officer Rowan never perceived imminent physical injury to himself from the rifle." In that motion, Valencia quoted from interviews with the officer in which he had stated he was not afraid for his own safety during the encounter and thought Valencia "wanted to commit suicide more than anything else." The trial court deferred its ruling until the motion for directed verdict during trial, at which point the court denied the motion. The jury found Valencia guilty of the aggravated assault of Officer Rowan, in addition to the other crimes identified above, the court sentenced him as previously described, and we have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Aggravated Assault
¶6 On appeal, Valencia argues the state presented insufficient evidence to support his conviction for aggravated assault against Officer Rowan, arguing "there was no evidence that the officer was placed in reasonable apprehension of immediate physical harm." "Th[e] question of sufficiency of the evidence is one of law, subject to de novo review." State v. West, 226 Ariz. 559, ¶ 15 (2011). We must determine whether, "after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." Id. ¶ 16, quoting State v. Mathers, 165 Ariz. 64, 66 (1990) (emphasis in Mathers). It is not the role of the appellate court to reweigh the evidence or to reevaluate the credibility of witnesses. See Fimbres, 222 Ariz. 293, ¶ 4.
¶7 Section 13-1204(A)(2), A.R.S., under which Valencia was convicted, states, "A person commits aggravated assault if the person commits assault as prescribed by § 13-1203 . . . [and] the person uses a deadly weapon or dangerous instrument." Pursuant to A.R.S. § 13-1203(A)(2), "[a] person commits assault by . . . [i]ntentionally placing another person in reasonable apprehension of imminent physical injury."
¶8 Valencia argues there was insufficient evidence of apprehension because of Officer Rowan's testimony when impeached with his pretrial interviews that he was "not frightened because it doesn't hit you until you're done. . . . That's when it hits you. Not in the scenario," and "I wasn't frightened. I was frightened for my team." Valencia also elicited testimony that the prosecutor had told the officer shortly before trial that if he was not afraid for his life at the time of the incident, the state was going to drop the aggravated assault charge.
¶9 Officer Rowan, however, also testified that his assessment of the situation changed once Valencia fired the gun, as he was then faced with "a threat to [the] civilian population and [him]self," plus the other officers who would be arriving on the scene. Moreover, when asked if he was scared, the officer testified, "If I tell you I'm not afraid, I'd be lying to you. You don't know behind that door what's going to happen next. You always have some [amount] of fear." Finally, Rowan also stated that, even if he did not feel fear in the moment, he did believe, at the time, that there was a "[v]ery good possibility" Valencia might use the weapon against him.
¶10 In State v. Wood, 180 Ariz. 53, 66 (1994), our supreme court expressly rejected the argument that there was insufficient evidence to support aggravated assault convictions "because neither police officer testified to a subjective fear of imminent physical harm." The court noted, "Either direct or circumstantial evidence may prove the victim's apprehension. There is no requirement that the victim testify to actual fright." Id. Although Valencia argues that Officer Rowan's testimony established he "was not afraid—or apprehensive—for himself during the encounter," he ignores the officer's express testimony that "[i]f I tell you I'm not afraid, I'd be lying." It was the jury's role to assess Rowan's credibility, and we do not reweigh the evidence on appeal, even when the witness has been impeached with prior statements. See State v. Ortega, 220 Ariz. 320, ¶ 34 (App. 2008).
¶11 Valencia additionally cites State v. Baldenegro, 188 Ariz. 10, 13-14 (App. 1996), wherein the defendant's conviction for aggravated assault was reversed because there was no evidence that the victim, who did not testify, had seen the gun or the resulting "bursts of flame" from the shooting, or had "reacted to the shooting, either by trying to maneuver to avoid getting shot or by crying out." Id. But we agree with the state that Baldenegro is not analogous to this case. Officer Rowan not only saw the gun, but he knew Valencia had fired it and believed Valencia might use it against him.
¶12 Valencia also argues Officer Rowan's actions during the encounter "demonstrate that the officer did not feel any apprehension of immediate physical harm." We disagree. As an initial matter, Valencia focuses on the interaction prior to his shooting the gun. But Rowan testified that his assessment of the situation changed "[i]mmediately" once the gun was fired. Valencia's assertion that the officer "did not react in a way that a trained officer would react, such as by shooting back or taking cover," lacks any support, and we reject the suggestion that an experienced police officer who remains level-headed in the face of danger must not have been apprehensive. The jury could infer from the officer's testimony that he was in reasonable apprehension of imminent physical harm, and we will not disturb that conclusion on appeal. See Ortega, 220 Ariz. 320, ¶ 34.
¶13 Valencia also asserts "the surrounding circumstances are insufficient to show that a reasonable person in the officer's position would be placed in reasonable apprehension of immediate physical harm." We have already concluded the state introduced sufficient evidence to support the aggravated assault conviction in this case, and we cannot say as a matter of law that no reasonable person would feel apprehensive when interacting with an armed man who has pointed the gun at himself and then fired it into the air.
¶14 Finally, Valencia argues his conduct did not "support an inference that he intended to place the officer in reasonable apprehension of immediate physical harm." Valencia cites the fact that he "had the rifle pointed at himself, then removed it and fired in the air, then returned to pointing the rifle at himself," arguing "[a]t most, his conduct was reckless insofar as the rifle swept over the officer's patrol car as he raised it to fire." Again, we disagree. Intent can be demonstrated through circumstantial evidence. See State v. Taylor, 25 Ariz. App. 497, 499 (1976). In this case, the jury reasonably could have found Valencia intended to put Officer Rowan in apprehension of imminent harm by firing the gun and briefly pointing it at the officer's patrol car, as shown on the dash cam video introduced into evidence. See West, 226 Ariz. 559, ¶ 16.
Disposition
¶15 For all of the foregoing reasons, Valencia's convictions and sentences are affirmed.