Opinion
No. 1 CA-CR 14-0811
07-28-2015
STATE OF ARIZONA, Appellee, v. SENECA JUNE GOLDING, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Yuma County Public Defender's Office, Yuma By Edward F. McGee Counsel for Appellant Seneca June Golding, Goodyear 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Yuma County
No. S1400CR201300719
The Honorable Lawrence C. Kenworthy, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Yuma County Public Defender's Office, Yuma
By Edward F. McGee
Counsel for Appellant
Seneca June Golding, Goodyear
Appellant
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, in which Judge Samuel A. Thumma and Judge Donn Kessler joined. WINTHROP, Presiding Judge:
¶1 Seneca June Golding ("Appellant") appeals her conviction and sentence for aggravated assault on a police officer, a class two felony and dangerous offense. Appellant's counsel has filed a brief in accordance with Smith v. Robbins, 528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record on appeal and found no question of law that is not frivolous. Appellant's counsel therefore requests that we review the record for fundamental error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999) (stating that this court reviews the entire record for reversible error). This court allowed Appellant to file a supplemental brief in propria persona and she has done so, raising several issues. Additionally, Appellant has raised issues through counsel that we address.
¶2 We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and 13-4033(A). Finding no reversible error, we affirm.
We cite the current version of the applicable statutes because no revisions material to this decision have occurred since the date of the offense.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against Appellant. See State v. Kiper, 181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994). --------
¶3 A grand jury indicted Appellant for Count I, aggravated assault using a deadly weapon or dangerous instrument on a police officer engaged in the execution of his official duties, a class two felony, and Count II, criminal damage in an amount of one thousand dollars or more but less than two thousand dollars, designated as a class two misdemeanor. See A.R.S. §§ 13-1203, -1204(A)(2), (E), -1602(A)(1). During trial, after the State presented its case-in-chief, the court granted Appellant's motion for judgment of acquittal on Count II. See Ariz. R. Crim. P. 20.
¶4 Also at trial, the State presented the following evidence: On the night of June 19, 2013, Officer Elkins of the Yuma Police Department responded to a call of a disturbance at the San Carlos Hotel. The officer observed a woman, later identified as Appellant, walking away from the hotel with blood on her hands, forearm, and stomach. Officer Elkins asked Appellant to sit on the street curb near the hotel, but she refused to comply and began walking into the intersection.
¶5 The officer continued to instruct Appellant to sit on the curb to receive help. Appellant refused and eventually stopped in the center of the intersection. When the officer again asked Appellant to sit on the curb, Appellant threw a "handful of blood" in the officer's face. As Officer Elkins wiped the blood from his eyes, he noticed Appellant holding a screwdriver with the "silver part" pointed toward him while Appellant faced him in a defensive stance. Officer Elkins drew his gun and aimed it at Appellant while repeatedly commanding Appellant to drop the screwdriver. Appellant did not comply and stepped toward the officer with the screwdriver still pointing at him. The officer stepped back while continuing to shout commands.
¶6 Finally, after ten to thirty seconds, Appellant dropped the screwdriver and went down on her knees. Shortly after that, Officer Probert of the Yuma Police Department arrived and handcuffed Appellant. The officers carried her out of the intersection to wait for paramedics from the fire department to arrive. During this time, Appellant was yelling and screaming incoherently. The paramedics arrived, tended to Appellant's injuries, and took her to the hospital. After Appellant had been taken to the hospital, Officer Probert found a screwdriver with what appeared to be blood on it and placed it in evidence.
¶7 Appellant presented several witnesses in her defense. S.P. testified that she had been outside the San Carlos Hotel on the night of June 19, 2013, and saw Appellant get upset. Appellant began throwing rocks at the hotel. As S.P. went inside to call the police, she saw Appellant break the window of the hotel lobby. A police officer arrived shortly after S.P. called 911, followed closely by several more police cars and an ambulance. S.P. saw Appellant screaming and pacing around in the intersection but did not remember seeing Appellant holding a screwdriver. S.P. acknowledged, however, that Appellant and the police officer disappeared from her view for a period of time, and she was not close enough to them to see if the officer had a gun or if any police officers drew their weapons. She spoke with police officers that night.
¶8 A.S. testified that he had been with S.P. outside the San Carlos Hotel on June 19, 2013, when he saw Appellant punch the lobby window with a clenched fist approximately three times before it shattered. A.S. did not remember seeing Appellant with a screwdriver. From his position outside the hotel, he could not hear what the officer said to Appellant or see what happened between Appellant and the officer in the middle of the street. He spoke with police officers that night.
¶9 W.B. testified that he resided on the fourth floor of the San Carlos Hotel on June 19, 2013. While in the hotel lobby, he saw Appellant break the lobby window by putting her arm through it. After returning to his fourth floor apartment, he saw Appellant and police officers in the intersection near the hotel. He did not see Appellant hold a screwdriver, but heard police officers yell, "Drop or we're going to shoot." W.B. did not speak to an officer about the event.
¶10 Appellant chose not to testify at trial. The jury found Appellant guilty of aggravated assault and found the offense was a dangerous offense. Before sentencing, the court denied Appellant's motions for a new trial and for an order allowing Appellant to petition for clemency. See A.R.S. § 13-603(L). The court sentenced Appellant to a minimum term of seven years' imprisonment, with credit for 485 days of presentence incarceration.
ANALYSIS
¶11 Appellant raises several arguments through counsel and in her supplemental brief. We address each in turn.
I. Appellant's Challenge to the Indictment
¶12 Appellant appears to challenge her indictment by challenging the evidence presented to the grand jury. An appellant generally may not challenge an indictment on appeal. See State v. Moody, 208 Ariz. 424, 439-40, ¶ 31, 94 P.3d 1119, 1134-35 (2004). Further, she does not explain how the evidence presented was insufficient or in any way improper. We find no error, much less fundamental error.
II. Alleged Contamination of the Jury Panel
¶13 Appellant argues that two potential jurors made comments during voir dire that potentially tainted the entire jury. One juror commented that she could not make a fair and impartial assessment because her husband worked in law enforcement and had been assaulted on duty. A second juror echoed her statement. Both jurors merely expressed their own personal bias and there is no indication their statements influenced other jurors. The trial court immediately excused both potential jurors for cause, and we will not presume error or prejudice. See State v. Doerr, 193 Ariz. 56, 61-62, ¶ 18, 969 P.2d 1168, 1173-74 (1998).
III. Alleged Police Prejudice
¶14 Appellant claims Officer Elkins was prejudiced against her as a Native American, never tried to help her, and would have shot her had witnesses not been present. The record provides no support for her claims, which appear to be mere speculation. Instead, the record indicates that A.S. testified Appellant had become upset during a phone call and punched the lobby window of the hotel until it shattered. A.S. testified he tried to calm down Appellant before the police arrived. S.P. remembered the police officers also tried to calm Appellant down, and Officer Elkins testified he saw her bleeding and attempted to assist her. The jury alone decides the credibility of the witnesses, including Officer Elkins. See State v. Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974). Moreover, Appellant does not show how any of the arresting officer's alleged prejudice toward her affected her at trial. We find no error, much less fundamental error.
IV. Evidence Not Created
¶15 Appellant next argues relevant evidence was not created, presented, or included on the record. We find no error.
¶16 Appellant claims the screwdriver entered into evidence was not processed for fingerprints, blood, or other bodily fluids, she was not tested for the presence of drugs or alcohol, and the police officers may have lost or destroyed possible evidence by failing to properly secure the crime scene, not using dashboard cameras and voice recorders, and not creating drawings or sketches of the crime scene. Appellant presented a portion of this argument in her motion for new trial, claiming the trial court should have issued a Willits instruction because the State failed to preserve evidence. See State v. Willits, 96 Ariz. 184, 191, 393 P.2d 274, 279 (1964). Willits only provides for a duty to preserve evidence, not create it, and such an instruction is not called for merely because a more exhaustive investigation could have been done. See generally State v. Walters, 155 Ariz. 548, 550-51, 748 P.2d 777, 779-80 (App. 1987). Moreover, Appellant has not argued or shown that any of the evidence she seeks would have been helpful to her defense. See State v. Miller, 108 Ariz. 441, 444, 501 P.2d 383, 386 (1972). We find no error, much less fundamental error.
V. Disputed Statements
¶17 Appellant next argues that the police officers' statements made at trial were inconsistent with one another and contradicted by other witnesses. Specifically, Appellant claims that witnesses testified they did not see Appellant with a screwdriver, and she claims this testimony contradicts Officer Elkins' testimony that Appellant had a screwdriver. Any inconsistencies in witness testimony go to credibility, and the jury determines credibility and the weight to give to evidence. See Clemons, 110 Ariz. at 556-57, 521 P.2d at 988-89. Further, the record shows no material inconsistencies in the officers' testimony, and Appellant's witnesses simply testified they did not see or remember a screwdriver, not that one was not present. On this record, we find no error, much less fundamental error.
VI. Alleged Prosecutorial Misconduct
¶18 Appellant claims the prosecutor intimidated her during trial, and the alleged intimidating behavior caused her to be in a distressed mental state during trial. She makes no claim as to how this alleged intimidation prejudiced her at trial, and, in any event, the record shows no evidence of prosecutorial misconduct. We find no error, much less fundamental error.
VII. Ineffective Assistance of Counsel
¶19 Appellant also makes several arguments suggesting her trial counsel was ineffective. She claims her counsel failed to introduce at trial additional witness statements made in municipal court after charges in that court were dropped and did not make a mental health defense on her behalf, despite her alleged medical condition. Appellant argues her counsel should have called either her or her mother to testify about her distressed mental state during trial. Appellant also claims her counsel did not offer the report from a defense psychiatrist during sentencing. All of these arguments constitute claims of ineffective assistance of counsel, which we do not address on appeal. See State v. Spreitz, 202 Ariz. 1, 3, ¶ 9, 39 P.3d 525, 527 (2002). Ineffective assistance of counsel claims may only be brought during Rule 32 proceedings. See id.
VIII. Other Issues
¶20 We have reviewed the entire record for reversible error and find none. See Leon, 104 Ariz. at 300, 451 P.2d at 881; Clark, 196 Ariz. at 537, ¶ 30, 2 P.3d at 96. The evidence presented at trial was substantial and supports the verdict, and the sentence was within the statutory limits. Appellant was represented by counsel at all stages of the proceedings and was given the opportunity to speak at sentencing. The proceedings were conducted in compliance with her constitutional and statutory rights and the Arizona Rules of Criminal Procedure.
¶21 After filing of this decision, defense counsel's obligations pertaining to Appellant's representation in this appeal have ended. Counsel need do no more than inform Appellant of the status of the appeal and of her future options, unless counsel's review reveals an issue appropriate for petition for review to the Arizona Supreme Court. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Appellant has thirty days from the date of this decision to proceed, if she desires, with a pro per motion for reconsideration or petition for review.
CONCLUSION
¶22 Appellant's conviction and sentence are affirmed.