Opinion
1 CA-CR 24-0051
10-29-2024
STATE OF ARIZONA, Appellee, v. DAVID RAY HUTCHINSON, Appellant.
Arizona Attorney General's Office, Phoenix By Alice Jones Counsel for Appellee Janelle A. McEachern Attorney at Law Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Mohave County No. S8015CR202300277 The Honorable Billy K. Sipe, Jr., Judge Pro Tempore
Arizona Attorney General's Office, Phoenix By Alice Jones Counsel for Appellee
Janelle A. McEachern Attorney at Law Counsel for Appellant
Judge Paul J. McMurdie delivered the Court's decision, in which Presiding Judge Jennifer B. Campbell and Judge Kent E. Cattani joined.
MEMORANDUM DECISION
McMURDIE, JUDGE
¶1 David Ray Hutchinson appeals his convictions for two counts of aggravated assault and the resulting sentences. Hutchinson's counsel filed a brief per Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), certifying that, after a diligent search of the record, she found no arguable question of law that was not frivolous. Hutchinson was allowed to file a supplemental brief but did not do so. Counsel asks this court to search the record for arguable issues. See Penson v. Ohio, 488 U.S. 75 (1988); State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999). After reviewing the record, we find none and affirm Hutchinson's convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to sustaining the judgment. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2018).
¶2 Hutchinson's son, Darrin, had been dating Gary and Lisa Dixon's daughter for several years. In January 2023, the Dixons' daughter called Darrin and asked him to pick her up. Hutchinson, accompanied by his wife, drove Darrin to the Dixon residence. Upon seeing Darrin exit the vehicle and approach her home, Lisa told him to leave. Darrin refused and hit Lisa above her eye, knocking her to the ground. Gary emerged from the garage and tried to separate Darrin and Lisa. Darrin punched Gary, knocking him to the ground. David Hutchinson exited the vehicle and kicked Gary in the head.
We use pseudonyms to protect the victims' identity.
¶3 Lisa's mother called the police, and the Hutchinson family fled the scene in their vehicle. Gary suffered serious injuries to his eye, including broken bones and vision problems. During an investigation over the following weeks, the police made several unsuccessful attempts to contact the Hutchinsons. The Mojave County Sheriff's Office issued an "attempt to locate" David and Darrin Hutchinson.
¶4 Once police located David Hutchinson, they arrested and charged him with three counts of aggravated assault. See A.R.S. §§ 13-1203(A)(1), -1204(A)(1), (A)(4). Count One arose from the serious physical injury to Gary. Count Two arose from David's assault on Lisa while she was restrained, or her capacity to resist was substantially impaired. Count Three arose from David's assault on Gary while he was restrained, or his capacity to resist was substantially impaired.
¶5 The trial was scheduled to start on November 14, 2023, but the court continued the trial until December 12, 2023, because of Hutchinson's hospitalization. Following the State's case in chief, the defense moved for a directed verdict on Count Two, aggravated assault against Lisa Dixon. The State conceded it did not present evidence that Lisa was restrained or that her capacity to resist was substantially impaired and requested that the court amend the charge to simple assault. The superior court, finding no evidence that David Hutchinson assaulted Lisa, dismissed the charge. Before the defense presented its case, the court read a revised indictment to the jury, instructing them to consider the evidence only for Counts One and Three.
¶6 The jury found Hutchinson guilty of two counts of aggravated assault and found the victim's physical, emotional, or financial harm as an aggravating factor for both counts. The State had alleged that Hutchinson had three prior felony convictions from California but chose not to prove them, given the sentencing range for Count One. See A.R.S. §§ 13-701(C), (D)(9), -704(A).
¶7 For Count One, Hutchinson received a mitigated sentence of six and a half years' imprisonment with 29 days of presentence incarceration credit. For Count Three, Hutchinson received the minimum sentence of six months' imprisonment, to be served concurrently with Count One. Hutchinson objected to the amount of restitution requested but waived his presence at any hearing on the claim. Hutchinson was ordered to pay $4,406 in restitution, with credit received for any payments made by the co-defendant, his son Darrin. Hutchinson appealed. We have jurisdiction under Article 6, Section 9 of the Arizona Constitution and Arizona Revised Statutes §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
DISCUSSION
¶8 We have read and considered counsel's brief and have reviewed the record for any arguable issues. See Leon, 104 Ariz. at 300. We find no arguable issues.
¶9 Hutchinson was present and represented by counsel at all stages of the proceedings against him except for when he was absent on the original day the trial was set to start and the restitution hearing. Hutchinson failed to appear at the initial November 2023 trial date because he was hospitalized. The court continued the case to December 2023 and directed Hutchinson to appear then. Hutchinson also failed to appear at the contested restitution hearing, but the court proceeded in his absence, finding that he had waived his presence.
¶10 The record reflects that the superior court afforded Hutchinson all his constitutional and statutory rights and conducted the proceedings following the Arizona Rules of Criminal Procedure. The court held appropriate pretrial hearings, and the evidence presented at trial and summarized above was sufficient to support the convictions and the superior court's sentencing decision. Hutchinson's sentences fall within the range prescribed by law. A.R.S. §§ 13-702(D), -704(A). And the superior court gave Hutchinson appropriate presentence incarceration credit.
¶11 Despite Hutchinson's objection to a flight instruction and the alternative explanation for his flight, the court's decision to give the instruction was correct. State v. Parker, 231 Ariz. 391, 403, ¶ 44 (2013) (A flight instruction is appropriate when "the [S]tate presents evidence from which jurors may infer 'consciousness of guilt.'" (quoting State v. Edwards, 136 Ariz. 177, 184 (1983))); State v. Hunter, 136 Ariz. 45, 49 (1983) (An alternative explanation for flight does not make a flight instruction improper.). After the incident, but before police arrived, Hutchinson left the victims' residence at a high speed and drove to his friend's house. Hutchinson testified that he had planned to go to his friend's house before the incident. Law enforcement could not locate Hutchinson for several weeks despite multiple attempts to contact him at home. Thus, the court did not err by giving a flight instruction because a jury could infer consciousness of guilt from the evidence. See Parker, 231 Ariz. at 403, ¶ 44.
CONCLUSION
¶12 Hutchinson's convictions and sentences are affirmed. After the filing of this decision, defense counsel's obligations pertaining to Hutchinson's representation in this appeal will end after informing Hutchinson of the outcome of this appeal and his future options unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984).