Opinion
No. 1 CA-CR 13-0306 No. 1 CA-CR 13-0801
06-04-2015
STATE OF ARIZONA, Appellee, v. LASHAUNA COLEMAN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Myles A. Braccio Counsel for Appellee Lashauna Coleman, Safford Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2012-135642-001
The Honorable Margaret R. Mahoney, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Myles A. Braccio
Counsel for Appellee
Lashauna Coleman, Safford
Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined. SWANN, Judge:
¶1 Lashauna Coleman appeals her conviction and probation for disorderly conduct, a domestic violence offense. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 A grand jury indicted Coleman for several domestic violence offenses: aggravated assault, a class 3 dangerous felony (Count 1); disorderly conduct, a class 6 dangerous felony (Count 2); and assault, a class 3 misdemeanor (Count 3). Coleman pled not guilty and the matter proceeded to a jury trial.
¶3 At trial, Coleman's former daughter-in-law testified that Coleman had threatened her at gunpoint as she was trying to retrieve her infant son's car seat so the two could move out of Coleman's apartment. The victim testified that Coleman had been yelling at her to get out, and threatened to get a gun when the victim said that her mother was coming to pick her up. The victim responded that she would call her mother and tell her not to come, but a few minutes later, Coleman pointed a handgun at the victim and threatened to shoot her. Coleman testified that she had "flashed" a gun at the victim to make the point that she was serious about not having the victim's parents come to the apartment.
¶4 The superior court denied Coleman's motion for a judgment of acquittal, and all three counts were submitted to the jury. The jury acquitted Coleman of the assaults charged in Counts 1 and 3, but convicted her of the disorderly conduct charged in Count 2 and found it was a domestic violence offense but not a dangerous offense. The court suspended the imposition of sentence and placed Coleman on two years of supervised probation. The court left the offense open, subject to designation as a misdemeanor upon successful completion of probation. Coleman timely filed a notice of appeal from the conviction and probation term.
Coleman later filed a separate notice of appeal from postjudgment orders entered on August 26, 2013, and October 14, 2013, and we consolidated the appeals. We previously concluded that we have no jurisdiction to review the August 26 order because the notice of appeal was untimely as to that order. We now hold that we need not address the October 14 order because Coleman has not raised any specific issues with respect to that order.
DISCUSSION
¶5 Coleman raises numerous issues on appeal. We address each in turn. I. SUFFICIENCY OF EVIDENCE
¶6 Coleman first contends that insufficient evidence supported her conviction for disorderly conduct. We review the sufficiency of the evidence de novo. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). Sufficient evidence may be either direct or circumstantial. State v. Anaya, 165 Ariz. 535, 543 (App. 1990). "[T]he relevant question is 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." West, 226 Ariz. at 562, ¶ 16 (citation omitted). We do not reweigh the evidence or determine the credibility of witnesses, State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004), and we must resolve all conflicts in the evidence against Coleman, State v. Girdler, 138 Ariz. 482, 488 (1983). "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." State v. Arredondo, 155 Ariz. 314, 316 (1987).
¶7 Coleman argues that the evidence was insufficient to support her conviction because the handgun was not loaded. Disorderly conduct as charged in this case required proof that Coleman, "with intent to disturb the peace or quiet of a . . . person, or with knowledge of doing so, . . . [r]ecklessly handle[d], display[ed] or discharge[d] a deadly weapon." A.R.S. § 13-2904(A)(6). It was immaterial for purposes of this offense whether the handgun was loaded or unloaded. See A.R.S. § 13-105(15) (defining a "deadly weapon" as "anything designed for lethal use, including a firearm"), (19) (defining a "firearm," in pertinent part, as "any loaded or unloaded handgun"), (10)(c) (providing that a person acts "recklessly" if, "with respect to a result or to a circumstance described by a statute defining an offense, . . . a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists"). Evidence that Coleman was aware of and consciously disregarded the substantial and unjustifiable risk that handling or displaying the handgun would disturb the victim's peace or quiet, coupled with her intent to disturb the victim's peace or quiet or knowledge that she was doing so, was all that was required to prove the offense. The evidence at trial, viewed in the light most favorable to supporting the conviction, demonstrated that Coleman intentionally pointed the handgun at the victim not only to disturb her peace, but to scare her. The victim testified that Coleman pointed the gun at her and threatened to shoot her, causing her to fear for her life and that of her infant son. And Coleman admitted that she "flashed" the gun at the victim. This evidence was more than sufficient to show that Coleman acted recklessly in handling or displaying the handgun. See A.R.S. § 13-202(C) ("If acting recklessly suffices to establish an element [of an offense], that element also is established if a person acts intentionally or knowingly."); State v. Valentini, 231 Ariz. 579, 583, ¶ 12 (App. 2013) ("[I]f the state proves a defendant acted intentionally, by definition, it has proved the defendant acted knowingly and recklessly.").
¶8 Coleman also argues that the jury's determination that the offense was not a dangerous offense demonstrates that she did not recklessly handle or display the firearm. Under A.R.S. § 13-105(13), an offense is "dangerous" if it involves the "discharge, use or threatening exhibition of a deadly weapon." There is, therefore, inconsistency in the jury's findings. But inconsistent verdicts do not automatically require reversal. See State v. Zakhar, 105 Ariz. 31, 32-33 (1969); State v. DiGiulio, 172 Ariz. 156, 162 (App. 1992). The evidence supported the conviction, so we discern no reversible error. II. FAILURE TO PROVE GREATER OFFENSE
¶9 Coleman next contends that her acquittal on Count 1, which charged aggravated assault with a deadly weapon, "exposes resounding deficiencies in the guilty verdict for [the] necessarily included offense of reckless [disorderly] conduct" in Count 2.
¶10 As charged, Count 1 required proof that Coleman, using a deadly weapon, intentionally placed the victim in reasonable apprehension of imminent physical injury. See A.R.S. §§ 13-1203(A)(2) ("A person commits assault by . . . [i]ntentionally placing another person in reasonable apprehension of imminent physical injury."), -1204(A)(2) ("A person commits aggravated assault if the person commits assault . . . [and] uses a deadly weapon."). The jury reasonably could have found that Coleman intended to disturb the victim's peace and quiet (as required for disorderly conduct), and did so, but did not intentionally place the victim in reasonable apprehension of imminent physical injury. The jury's acquittal of Coleman on Count 1 has no impact on its guilty verdict on Count 2. III. MULTIPLICITOUS CHARGES
¶11 Coleman next contends that the indictment violated her constitutional right to protection against double jeopardy because it was multiplicitous, charging a single offense in more than one count: specifically, aggravated assault with a deadly weapon, in Count 1, and disorderly conduct by reckless handling or displaying of a firearm, in Count 2. Because Coleman's attorney failed to raise the multiplicity issue at trial, we review this argument for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). Fundamental error is error that goes to the foundation of the case and deprives the defendant of a fair trial. Id. To prevail on appeal, a defendant must establish both that fundamental error exists and that it caused him prejudice. Id. at ¶ 20.
Coleman contends that her counsel was ineffective for failing to raise this and other issues at trial. Her claims of ineffective assistance of counsel are not cognizable in this direct appeal. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002) (holding that "ineffective assistance of counsel claims are to be brought in Rule 32 proceedings").
¶12 Charges are considered multiplicitous if "they charge a single offense in multiple counts." Merlina v. Jejna, 208 Ariz. 1, 4, ¶ 12 (App. 2004). We determine multiplicity by examining the elements of the crimes and determining whether each offense "requires proof of an additional fact which the other does not." State v. Eagle, 196 Ariz. 188, 190, ¶ 6 (2000) (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). Here, disorderly conduct as charged in Count 2 was a lesser included offense of aggravated assault as charged in Count 1. State v. Miranda, 200 Ariz. 67, 68, ¶ 3 (2001). The charges were therefore multiplicitous. See Brown v. Ohio, 432 U.S. 161, 166 n.6 (1977) ("[W]e conclude today that a lesser included and a greater offense are the same under Blockburger . . . .").
¶13 Multiplicitous charges, however, do not violate double jeopardy so long as multiple punishments are not imposed. Merlina, 208 Ariz. at 4, ¶ 14. Because the jury convicted Coleman only of the lesser included offense of disorderly conduct, she was neither convicted nor sentenced in violation of the prohibition against double jeopardy. Nor was the state barred from submitting both charges to the jury, because the offenses did not contain identical elements or involve identical proof. See id. at 5, ¶ 17. Moreover, any potential prejudice was avoided by the instruction to the jury that that it must address each charge separately. The jury exhibited its ability to follow these instructions by acquitting Coleman of aggravated assault, but convicting her of the lesser included offense of disorderly conduct. IV. DOMESTIC VIOLENCE INSTRUCTIONS AND EVIDENCE
¶14 Coleman next contends that faulty jury instructions and insufficient evidence require reversal of the jury's finding that the disorderly conduct offense was a domestic violence offense.
¶15 A domestic violence offense is statutorily defined, in pertinent part, as "an offense prescribed in § . . . 13-1203 [assault], 13-1204 [aggravated assault] . . . or . . . § 13-2904, subsection A, paragraph . . . 6 [disorderly conduct for recklessly handling, displaying, or discharging a deadly weapon]. . . if . . . [t]he relationship between the victim and the defendant is one . . . of persons residing or having resided in the same household." A.R.S. § 13-3601(A)(1). Without objection, the superior court instructed the jury: "The Defendant commits a domestic violence offense if the Defendant commits aggravated assault, disorderly conduct, or assault and the Defendant and the victim reside in the same household or the Defendant and the victim resided in the same household." Because defense counsel failed to object to this instruction at trial, we review it for fundamental error. See Henderson, 210 Ariz. at 567, ¶ 19. We find no error, much less fundamental error. The instruction was derived from section 36.01 of the Revised Arizona Jury Instructions (Criminal), and tracked the statutory language.
¶16 Further, the evidence was sufficient to support the jury's determination that the disorderly conduct offense was a domestic violence offense. The victim and Coleman both testified that at the time of the incident that gave rise to the charges, the victim resided in the same household as Coleman. V. INTRODUCTION AND USE OF COERCED STATEMENTS
¶17 Coleman next contends that the superior court erred by failing to hold a hearing to ascertain whether her statements to police were voluntary and whether she had waived her rights under Miranda v. Arizona, 384 U.S. 436 (1966). Because defense counsel failed to raise this issue at trial, we review this argument for fundamental error. See Henderson, 210 Ariz. at 567, ¶ 19.
¶18 We find no error in the absence of a hearing to determine that Coleman's statements were voluntary before admitting them at trial. Arizona law requires only that, before a statement from a defendant is admitted, the trial court determine "any issue as to voluntariness." A.R.S. § 13-3988(A) (emphasis added). The defendant has the burden of raising an issue of voluntariness. State v. Alvarado, 121 Ariz. 485, 487 (1979). Absent a request by the defendant, the trial court need not conduct a hearing to determine voluntariness, Alvarado, 121 Ariz. at 487 (citing Wainwright v. Sykes, 433 U.S. 72 (1977)), and the state has no burden to prove voluntariness of a statement if the defendant does not place the issue before the court, State v. Wilson, 164 Ariz. 406, 407 (App. 1990). Because Coleman failed to raise any issue as to the voluntariness of her statements before or at trial, the trial court did not err by failing to sua sponte determine that her statements were voluntary before admitting them at trial.
¶19 Moreover, no evidence presented at trial raised any issue as to the voluntariness of Coleman's statements or her waiver of her Miranda rights. A statement is not involuntary unless there exists "both coercive police behavior and a causal relation between the coercive behavior and defendant's overborne will." State v. Boggs, 218 Ariz. 325, 336, ¶ 44 (2008) (citation omitted). The evidence demonstrated that Coleman initially gave the responding police officer a brief statement in which she denied having threatened the victim with a gun. When the officer returned after hearing what the victim had to say, Coleman waived her Miranda rights and eventually admitted that she had "flashed" a gun at the victim. Coleman never asked for an attorney and never refused to answer questions. Though Coleman testified that she was handcuffed outdoors for over two hours and that one of the officers tried to "[s]pin things around, confuse [her]," and "put words in [her] mouth," she never suggested that her will was overborne.
¶20 Finally, the jury was instructed that it could not consider any statements Coleman made to police unless it determined beyond a reasonable doubt that they were voluntary, and did not result from her "will being overcome by a law enforcement officer's use of any sort of violence, coercion or threats or by any direct or implied promise, however slight." On this record, we conclude that the trial court did not err, much less fundamentally err to the defendant's prejudice, in admitting the defendant's statements at trial. VI. PROSECUTORIAL MISCONDUCT
¶21 Coleman next contends that the prosecutor engaged in misconduct by threatening to charge the victim with false reporting, by presenting the victim's "perjured" testimony at trial, by failing to request dismissal of the charges after the victim recanted, by failing to prosecute the victim for perjury and filing a false report, by alleging that the offense was a dangerous offense despite the absence of physical injury or a loaded firearm, by "stacking charges," and by retaliating in the sentencing recommendation. Because defense counsel failed to raise these claims of prosecutorial misconduct before the superior court, we review them for fundamental error. See Henderson, 210 Ariz. at 567, ¶ 19.
¶22 "Prosecutorial misconduct 'is not merely the result of legal error, negligence, mistake, or insignificant impropriety, but, taken as a whole, amounts to intentional conduct which the prosecutor knows to be improper and prejudicial and which he pursues for any improper purpose with indifference to a significant resulting danger of mistrial.'" State v. Aguilar, 217 Ariz. 235, 238-39, ¶ 11 (App. 2007) (quoting State v. Pool, 139 Ariz. 98, 108-09 (1984)). To constitute reversible error, the misconduct must be "so pronounced and persistent that it permeates the entire atmosphere of the trial," and "so infect[s] the trial with unfairness as to make the resulting conviction a denial of due process." State v. Morris, 215 Ariz. 324, 335, ¶ 46 (2007) (citations omitted). We view instances of prosecutorial misconduct cumulatively to determine whether reversal is required. State v. Roque, 213 Ariz. 193, 230, ¶ 164 (2006).
¶23 The victim testified at trial to the following facts. Before trial, the victim told the prosecutor that Coleman's son, her former husband, wanted her to drop the charges, and the prosecutor told her that was not possible. Soon thereafter, at Coleman's son's request, she contacted defense counsel and told him that she had lied when she claimed Coleman had pointed the gun at her. She then asked the prosecutor what would happen if she had lied about Coleman pointing the gun at her, and the prosecutor responded that she could face criminal false reporting charges. The victim explained that she had briefly recanted because Coleman's son, who had filed for divorce, had told her "he would get back together with me if I made this all just blow away. If I fixed everything and got rid of all the problems and his mom didn't go to jail, he would come back to me with open arms." The victim testified that Coleman had in fact pointed the gun at her.
¶24 On this record, we are not at all persuaded that the prosecutor engaged in misconduct by informing the victim of the penalty for making false allegations, by eliciting testimony from the victim at trial that she had lied when she recanted her allegations, by failing to dismiss the charges after the victim recanted, and by failing to prosecute the victim for perjury and false reporting. The prosecutor warned the victim that she would be prosecuted if she had lied about the allegations only after the victim told the prosecutor that her husband was pressuring her to obtain dismissal of the charges. The prosecutor's warning was not inappropriate under these circumstances.
¶25 Nor does the evidence support Coleman's claim that the victim perjured herself at trial by testifying that Coleman had pointed the gun at her. "Prosecutors have a duty to the court not to knowingly encourage or present false testimony." State v. Rivera, 210 Ariz. 188, 194, ¶ 28 (2005). The knowing use of perjury or false testimony to convict a defendant constitutes a denial of due process and is reversible error without a showing of prejudice. State v. Ferrari, 112 Ariz. 324, 334 (1975) (citing Mooney v. Holohan, 294 U.S. 103 (1935)). Perjury is not established, however, by the fact that a witness's "testimony is challenged by another witness or is inconsistent with prior statements." United States v. Payne, 940 F.2d 286, 291 (8th Cir. 1991). Absent a showing that testimony was false and that the prosecution was aware that it was false, witness credibility is for the jury to determine. Rivera, 210 Ariz. at 194, ¶ 28.
¶26 The victim explained why she had recanted, and the testimony from contemporaneous witnesses supported her original claim. At the time of the incident, the victim was on the phone with Coleman's son, her then-husband, and he told police that she said that Coleman had gone into the house to get a gun and then pointed it at her. The police officer who responded to the scene testified that when she arrived, the victim was crying hysterically, almost to the point of hyperventilating, and it took the officer a couple of minutes to calm her down before getting her story. Coleman also admitted to the responding officer that she had "flashed" the gun at the victim because she wanted the victim to know that she was serious about not wanting the victim's family to come to the residence. On this record, we are not persuaded that the prosecutor engaged in misconduct by presenting the victim's testimony and failing to prosecute her for perjury or other crimes, or by failing to dismiss the charges based on her brief pretrial recantation.
¶27 Nor did the prosecutor engage in misconduct by charging that the offense was a dangerous offense, despite the lack of bullets in the gun and the absence of physical injury, or by "stacking charges." An offense is "dangerous" if it involves the "discharge, use or threatening exhibition of a deadly weapon." A.R.S. § 13-105(13). It is immaterial whether the handgun, a deadly weapon, was loaded or unloaded. See A.R.S. § 13-105(15) (defining a "deadly weapon" as "anything designed for lethal use, including a firearm"), (19) (defining a "firearm," in pertinent part, as "any loaded or unloaded handgun"). It was also permissible for the prosecutor to file multiplicitous charges. See Section III, supra. The prosecutor accordingly did not engage in any misconduct by her charging decisions.
¶28 Finally, we are not persuaded that the prosecutor engaged in misconduct by recommending that the court designate the offense as a felony based on Coleman's demeanor at trial. Imposition of a sentence based on a defendant's lack of remorse or failure to admit guilt may violate a defendant's Fifth Amendment right not to incriminate herself, and therefore may constitute fundamental, prejudicial error. See State v. Trujillo, 227 Ariz. 314, 318-19, ¶¶ 15- 21 (App. 2011). But in the circumstances of this case, the prosecutor's remarks about Coleman's demeanor at trial did not constitute misconduct -- the prosecutor's brief reference to Coleman's intent to appeal the verdict as indicating her failure to accept responsibility was improper, but does not require reversal. Further, we are not persuaded that the prosecutor engaged in misconduct by recommending that the court designate the offense as a felony based on dangerousness inherent in the offense, despite the absence of a jury finding that the offense was a dangerous offense. Coleman admitted at trial that she "flashed" a gun at the victim with the intent to force the victim to realize that she was serious. VII. DEFERRAL OF MISDEMEANOR DESIGNATION
¶29 Coleman next contends that the court violated her right to a jury trial under the Sixth Amendment by refraining from designating the disorderly conduct conviction as a misdemeanor under A.R.S. § 13-604(A) until successful completion of probation. Coleman also contends that § 13-604(A) is unconstitutionally overbroad in that it allows the court to engage in "post acquittal fact finding in conflict with the sixth amendment right to a jury trial also in conflict with the verdict of acquittal." Again, because defense counsel failed to raise either of these claims at trial, we review them for fundamental error. See Henderson, 210 Ariz. at 567, ¶ 19.
¶30 A.R.S. § 13-604(A) provides that
if a person is convicted of any class 6 felony not involving a dangerous offense and if the court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that it would be unduly harsh to sentence the defendant for a felony, the court may enter judgment of conviction for a class 1 misdemeanor and make disposition accordingly or may place the defendant on probation in accordance with chapter 9 of this title and refrain from designating the offense as a felony or misdemeanor until the probation is terminated.Coleman's argument appears to be that the court's discretion under § 13-604(A) to rely on "the nature and circumstances of the crime" and the "history and character of the defendant" in determining whether and when to designate a nondangerous class 6 felony as a misdemeanor violates the Sixth Amendment guarantee that "[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt." Blakely v. Washington, 542 U.S. 296, 301 (2004) (quoting Apprendi v. New Jersey, 530 U.S 466, 490 (2000).). But § 13-604(A) does not "increase the penalty for a crime beyond the prescribed statutory maximum" -- it instead allows the court discretion to reduce the conviction from a class 6 felony to a misdemeanor. Blakely has no applicability to § 13-604(A).
¶31 Nor are we persuaded that the court abused its discretion by deferring designation of the offense until successful completion of probation, or that the court relied on "acquitted conduct" (i.e., the jury acquittal on the aggravated assault charge and its finding that the disorderly conduct offense was not dangerous) in sentencing Coleman. In reaching its guilty verdict on the disorderly conduct count, the jury necessarily found that Coleman recklessly handled or displayed a gun with the intent to disturb the victim's peace. The court accordingly did not abuse its discretion, by relying on the evidence that Coleman had pointed the gun at the victim, to defer designation of the offense pending successful completion of supervised probation, "to show to the Court that you actually have gotten the message about this being inappropriate, such that I'm confident you won't repeat it again." VIII. VIOLATION OF FIFTH AMENDMENT IN PRESENTENCING REPORT
¶32 Coleman next contends that her Fifth Amendment right not to incriminate herself was violated by her attorney's failure to advise her that she did not have to respond to questions about the offense during the presentencing interview, by her attorney's failure to object to the resulting report, and by the court's reliance on the report. Again, because these claims were not raised at trial, we review them for fundamental error. See Henderson, 210 Ariz. at 567, ¶ 19. Moreover, to the extent that Coleman is claiming ineffective assistance of counsel based on a failure to advise or object, the claim is not cognizable in this direct appeal. See Spreitz, 202 Ariz. at 3, ¶ 9.
¶33 Coleman has cited no evidence indicating that she was compelled to respond to the presentence-report writer's questions, or that her responses were not voluntary. Her failure to assert her Fifth Amendment right when speaking to the presentence-report writer waived the privilege. See Brown v. United States, 356 U.S. 148, 155-56 (1958). Further, Coleman does not cite any authority for her argument that the trial court improperly relied on the presentence report in the absence of objection by her counsel. She has therefore waived this argument. See State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101 (2004) (failure to present "significant arguments, supported by authority" in opening brief waives issue (citation omitted)). Moreover, the statements attributed to Coleman in the presentence report were no different from those that she made when she testified at trial, and Coleman has failed to cite to any specific statement in the report that was incorrect, beyond repeating her claim that the victim lied at trial and that the evidence failed to show that she pointed the gun at the victim. IX. LACK OF AUTHORITY TO IMPOSE DOMESTIC VIOLENCE CONDITIONS
¶34 Coleman next contends that the court had no authority under A.R.S. § 13-3601.01 or implementing regulations to order her to complete a domestic-violence-offender treatment program, and that the state has "no legitimate interest" in ordering persons convicted of nonrepetitive, nondangerous offenses to pay for mental health counseling "without evidence that mental issues contributed to the alleged offense." Again, because defense counsel failed to raise these claims at trial, we review them for fundamental error. See Henderson, 210 Ariz. at 567, ¶ 19.
¶35 As an initial matter, Coleman's counsel arguably invited any "error" by asking the court to designate the offense a misdemeanor and place Coleman on unsupervised probation "so that she can participate in the mandatory domestic violence offender treatment program pursuant to 13-3601.01. This is obligated by the Court." See State v. Lucero, 223 Ariz. 129, 138, ¶ 31 (App. 2009) (invited error doctrine applies "if the party complaining on appeal affirmatively and independently initiated the error"). Moreover, the imposition of the domestic violence treatment as a condition of probation was not error. The court has authority to impose conditions of probation "as the law requires and the court deems appropriate." A.R.S. § 13-901(A). Although A.R.S. § 13-3601.01 mandates domestic violence treatment only for misdemeanor domestic violence offenses, the court had discretion under A.R.S. § 13-901(A) to order the treatment for an undesignated offense if it deemed such treatment appropriate. The trial judge, after having observed Coleman's demeanor and heard her testimony and remarks at trial and sentencing, stated that she was not convinced that Coleman would not do the same thing again. In these circumstances, the imposition of a condition that Coleman submit to domestic violence treatment was not an abuse of discretion, much less fundamental, prejudicial error. X. FAILURE TO PROVIDE NOTICE IN IMPOSING PROBATION CONDITIONS
¶36 Coleman next contends that the superior court violated the rules of criminal procedure and her due process rights because it did not provide her with a copy of the probation conditions before sentencing or an explanation of all of the conditions during sentencing. Because defense counsel failed to raise this issue at trial, we review this argument for fundamental error. See Henderson, 210 Ariz. at 567, ¶ 19.
¶37 At sentencing, the court advised Coleman that it was imposing a two-year supervised probation term, and specified fees and assessments, domestic violence terms and special conditions, and "other terms and conditions . . . all important," which "I have not covered . . . with you all just now, but they all do appear in writing in [the] records -- the documents you'll receive and sign today." The judge signed the document ordering the specific conditions of probation "[b]ased upon the defendant's agreement to abide by the Conditions of Supervision set forth," and Coleman signed the document, acknowledging receipt of the conditions of probation and the special conditions of probation and her understanding that the court could sentence her in accordance with the law if she failed to abide by the conditions.
¶38 The court's oral recitation of the financial terms and the special domestic violence conditions, and its admonition that the written terms and conditions were "all important," along with the judge's signature on the document ordering these conditions, and Coleman's signature that same date acknowledging she received the written terms and conditions, satisfied the requirement that the court explain the terms of probation at sentencing. See Ariz. R. Crim. P. 26.10(b)(3) ("The Court shall . . . [e]xplain to the defendant the terms of the sentence or probation."). We therefore find no error. We further note that under Ariz. R. Crim. P. 27.3, "[a] probationer . . . at any time prior to absolute discharge, may request the court to modify or clarify any condition or regulation." This rule provided Coleman an adequate remedy to seek post-sentencing modification of any conditions that she came to believe were arbitrary or unreasonable. XI. IMPOSITION OF ILLEGAL PROBATION CONDITIONS
¶39 Coleman next contends that the court's imposition of domestic violence conditions gave her probation officers authority to exercise discretion in an arbitrary, abusive, and unnecessary manner. She also argues that the domestic violence conditions and the general conditions were not related to the offense of conviction, were overbroad, and violated her constitutional rights. Again, because defense counsel failed to raise these issues at sentencing, we review these arguments for fundamental error. See Henderson, 210 Ariz. at 567, ¶ 19; see also State v. Smith, 129 Ariz. 28, 31 (App. 1981) ("The appropriate time to consider any objections which a defendant might have to the terms of his probation is the time of imposition of those terms.").
¶40 The court has authority to impose conditions of probation "as the law requires and the court deems appropriate." A.R.S. § 13-901(A). The court "may impose on a probationer such conditions as will promote rehabilitation. In addition, the appropriate probation officer . . . may impose on the probationer regulations which are necessary to implement the conditions imposed by the court and not inconsistent with them." Ariz. R. Crim. P. 27.1.
¶41 Probation "is not a matter of right but a matter of grace," and the constitutional rights of probationers may be restricted by conditions that "bear a reasonable relationship to the goals of probation." State v. Kessler, 199 Ariz. 83, 88, ¶¶ 20-21 (App. 2000) (citations omitted). "Of necessity, the trial court must be given substantial latitude in such matters in light of the uncertainty as to how rehabilitation is actually accomplished." State v. Donovan, 116 Ariz. 209, 212 (App. 1977). "A defendant can always reject the terms of probation and ask to be incarcerated instead if he finds the terms and conditions of probation too harsh." State v. Davis, 119 Ariz. 140, 142 (App. 1978). We will not "strike down conditions of release, even if they implicate fundamental rights, if such conditions are reasonably related to the ends of rehabilitation and protection of the public from recidivism." Kessler, 199 Ariz. at 88, ¶ 21 (citation omitted).
¶42 The jury convicted Coleman of disorderly conduct for reckless handling or display of a weapon with intent to disturb the peace, and found that the offense was a domestic violence offense. Coleman has failed to meet her burden on fundamental error review to demonstrate that the probation conditions were not reasonably related to her rehabilitation and the protection of the public, that they violated her constitutional rights, or that the probation officers exercised their authority in an arbitrary manner. The court accordingly did not err, much less fundamentally err, in imposing the conditions. XII. FELONY CONVICTION
¶43 Coleman finally contends that she could not be convicted of a felony because the jury failed to find the offense "dangerous." We reject this argument. Coleman was convicted of violation of A.R.S. § 13-2904(A)(6). Section 13-2904(B) provides that "[d]isorderly conduct under subsection A, paragraph 6 is a class 6 felony." The failure of the jury to find the offense "dangerous" did not affect the classification of the offense of conviction.
CONCLUSION
¶44 For the foregoing reasons, we affirm Coleman's conviction and probation.