Opinion
1 CA-CR 11-0581
05-16-2013
STATE OF ARIZONA, Appellee, v. MORGAN LAMBERT NICHOLS, Appellant.
Thomas C. Horne, Attorney General By Joseph T. Maziarz, Acting Chief Counsel Criminal Appeals Section and Melissa M. Swearingen, Assistant Attorney General Attorneys for Appellee Jill L. Evans, Mohave County Appellate Defender Attorney 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(Not for Publication -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 Mohave County
Cause No. S8015CR201000831
The Honorable Lee Frank Jantzen, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Joseph T. Maziarz, Acting Chief Counsel
Criminal Appeals Section
and Melissa M. Swearingen, Assistant Attorney General
Attorneys for Appellee
Phoenix Jill L. Evans, Mohave County Appellate Defender
Attorney for Appellant
Kingman KESSLER, Judge ¶1 Defendant, Morgan Lambert Nichols, appeals from his conviction for two counts of disorderly conduct with a weapon, each a class 6 dangerous felony (Counts 1 and 2), with Count 2 being a domestic violence offense. Nichols claims that there was insufficient evidence to support his convictions for disorderly conduct with a weapon as a lesser included offense of aggravated assault and, alternatively, that the trial evidence did not warrant an instruction on the lesser included offense. For reasons set forth below, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the evidence in the light most favorable to sustaining the convictions and resolve all reasonable inferences against the defendant. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005).
¶2 In January 2009, Nichols engaged in an altercation with his girlfriend, Crystal, while at the home of his mother, Shirley, in Kingman, Arizona. During the altercation, Nichols retrieved two knives from Shirley's kitchen. Crystal's and Shirley's testimony conflicted regarding Nichols's action. Shirley testified that Nichols "gesture[ed]" with the knives in his hands and was "very, very upset." Crystal testified that Nichols was "going berserk" with the knives, held the knives close to Crystal's throat, and threatened to kill both women. ¶3 The State charged Nichols with two counts of aggravated assault with a deadly weapon or a dangerous instrument, each a class 3 dangerous felony, with the charge against Shirley (Count 2) designated a domestic violence offense. At defense counsel's request, the trial court instructed the jury on the lesser included offense of simple assault. At the State's request and over defense counsel's objection, the court also instructed the jury on the lesser included offense of disorderly conduct with a weapon. After a two-day trial, the jury found Nichols guilty of Count 1, disorderly conduct with a weapon involving Crystal, a class 6 dangerous offense; and Count 2, disorderly conduct with a weapon by domestic violence involving Shirley, a class 6 dangerous offense. ¶4 The trial court sentenced Nichols to a "slightly mitigated" term of two years in prison on Count 1 and a "substantially mitigated" sentence of one and one half years in prison on Count 2 and ordered the sentences to be served consecutively. Nichols timely appealed. This Court has jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1)(2003), 13-4031 (2010) and -4033(A)(1) (2010).
DISCUSSION
I. Insufficient Evidence of Disorderly Conduct with a Weapon
¶5 Nichols argues that there was insufficient evidence to support the jury's guilty verdict for disorderly conduct with a weapon involving his mother Shirley (Count 2). In support of his argument, he points to the fact that Shirley testified at trial that she was not frightened by Nichols's holding the knives and that she never felt threatened by him while he was holding them. Nichols also contends that because Shirley stated that she was upset when Nichols came into her house while arguing with Crystal, her peace would already have been disturbed at that point and there was "no additional evidence" that his display of the knives also upset her or disturbed her. He therefore reasons that because the jury rejected the aggravated assault charges, it necessarily rejected Crystal's version of events, and thus, there is insufficient evidence that his mother's peace was disturbed by his holding the kitchen knives. We do not agree. ¶6 A conviction will be reversed for insufficient evidence only if it is not supported by substantial evidence. State v. Henry, 205 Ariz. 229, 232, ¶ 11, 68 P.3d 455, 458 (App. 2003). "Substantial evidence is more than a mere scintilla and is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Ellison, 213 Ariz. 116, 134, ¶ 65, 140 P.3d 899, 917 (2006) (citation omitted). ¶7 When reviewing a sufficiency of the evidence claim, we do not reevaluate the evidence to determine whether we would have convicted the defendant on the evidence presented at trial, State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989), nor do we determine its sufficiency based on the credibility of the witnesses at trial, which is a matter for the jury to resolve, State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). Instead, we view the evidence in the light most favorable to sustaining the verdict and resolve all reasonable inferences against Nichols. Guerra, 161 Ariz, at 293, 778 P.2d at 1189. If any conflicts in the evidence exist, we resolve these also in favor of sustaining the jury's verdicts. State v. Salman, 182 Ariz. 359, 361, 897 P.2d 661, 663 (App. 1994). ¶8 "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." Soto-Fong, 187 Ariz, at 200, 928 P.2d at 624 (citation omitted). Thus, for this Court "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, 746 P.2d 484, 486 (1987). That is not the situation in this case. ¶9 The State charged that Nichols committed the aggravated assaults by intentionally placing his mother and Crystal in "reasonable apprehension of imminent physical injury . . . us[ing] a deadly weapon or dangerous instrument." A person commits disorderly conduct with a weapon if, "with intent to disturb the peace or quiet of a . . . person, or with knowledge of doing so, such person . . . [r]ecklessly handles, displays or discharges a deadly weapon or dangerous instrument." A.R.S. § 13-2904 (A)(6) (2010). ¶10 Our supreme court has held that a disorderly conduct with a weapon instruction is appropriate in such aggravated assault cases if the facts support both instructions. State v. Miranda, 200 Ariz. 67, 68, ¶ 3, 22 P.3d 506, 507 (2001). That is because "one cannot place a person in reasonable apprehension of imminent physical danger without in fact also disturbing [his or her] peace"; thus, "all elements of disorderly conduct by reckless display of a firearm are in fact elements of aggravated assault" with a weapon. Id. ¶11 The evidence at trial clearly supports the jury's finding that Nichols committed disorderly conduct involving his mother. The evidence was undisputed that Nichols was "very, very upset" and "resentful" when he entered her house and was "belligerent" throughout the incident. According to Shirley, "[w]hen he really got upset he stormed into the kitchen" and returned holding and displaying the two knives. Shirley described Nichols's action with the knives as "an evolving gesture"; Crystal testified that Nichols went "berserk" and "nuts" while he was holding them. ¶12 Shirley testified that Nichols never threatened her and that she was never afraid that he would harm her or Crystal. However, she also testified that, after Nichols reappeared from the kitchen with the knives, she first walked into her bedroom, where she conceded she had initially dialed 9-1-1. She then "changed [her] mind" and decided to go outside of her house to diffuse the situation, testifying that she had thought "maybe if I walk outside . . . they will cool off, and . . . it will be all right." Shirley testified that she had been "upset" and angered by the incident, having looked forward to an otherwise "peaceful afternoon." This testimony alone is sufficient to sustain the jury's finding that Nichols was guilty of disorderly conduct with a weapon with regard to his mother. Moreover, Crystal testified that Shirley pleaded with Nichols to stop, told him that he was scaring her, and that she was "having a hard time breathing." ¶13 Nichols's arguments on appeal focus on the fact that Shirley testified, contrary to Crystal's testimony, that Nichols never threatened her with the knives and that she was never frightened that he would physically hurt her or anyone with them. However, the statutory language does not require the State to prove that a defendant actually disturbed a victim's peace, only that a defendant acted "with intent to disturb the peace" or quiet of a person or "with [the] knowledge of doing so." Id. at 69, ¶ 5, 22 P.3d at 508. Even if the jury disregarded Crystal's testimony, as Nichols argues, Shirley's testimony alone, that Nichols's conduct in obtaining and displaying the two knives spurred her to call 9-1-1 and then to exit her home, supports the inference that he acted with the "intent" and/or "knowledge" of disturbing her peace. See State v. Parker, 121 Ariz. 172, 174, 589 P.2d 46, 48 (App. 1978) ("Intent may be inferred from circumstances such as the relationship between the parties and their conduct before and after the offense."); see also State v. Routhier, 137 Ariz. 90, 99, 669 P.2d 68, 77 (1983) (stating that a defendant's conduct and comments are evidence of his state of mind); State v. Greene, 192 Ariz. 431, 440, ¶ 39, 967 P.2d 106, 115 (1998) (stating that a jury may infer state of mind from defendant's behavior at or near time of offense). ¶14 We note that our supreme court held in In re Julio L. that when a specific victim is named in a charge of disturbing the peace, the court may not apply an objective standard of whether peace was disturbed in lieu of requiring actual proof regarding the effect on a specific person; rather, Julio L. required the State to prove that the victim's peace was actually disturbed. 197 Ariz. 1, 3, ¶ 8, 3 P.3d 383, 385 (2000). Even if Shirley's testimony did not support a finding that her peace was actually disturbed, we find that Crystal's testimony coupled with the fact that Shirley called 9-1-1 in response to Nichols's conduct was sufficient for the jury to have found Shirley's peace was disturbed. We do not agree with Nichols that the jury necessarily rejected Crystal's testimony because it did not find him guilty of aggravated assault. See infra ¶ 19. ¶15 Furthermore, our supreme court in Miranda, although not explicitly, seems to have retreated from the part of its holding in Julio L. that requires proof that the victim's peace was actually disturbed. 200 Ariz, at 69, ¶ 5, 22 P.3d at 508. Miranda held that "the statute defining disorderly conduct does not require that one actually disturb the peace of another through certain acts. Rather, the statute requires the commission of certain acts 'with intent to disturb the peace . . . or with knowledge of doing so.'" Id. (citing A.R.S. § 13-2904(A) (2001)). Miranda makes it clear that the State did not need to prove that Shirley's peace was actually disturbed, but only that Nichols intended to disturb her peace. In any event, under either interpretation, there is enough evidence on this record to support the jury's finding that Nichols was guilty of disorderly conduct with a weapon by domestic violence involving his mother.
Although she testified that she didn't remember making the call at trial, she noted that the police report stated that police received a 9-1-1 hang up call from her.
Although the statute requires the State to prove only that a defendant had the intent to disturb one's peace, the jury was instructed that it had to find that Nichols "intentionally or knowingly disturb[ed] a person's peace." As discussed above, we find the evidence supports the jury's findings.
Nichols also maintains that the trial court erred when it denied his motion for judgment of acquittal pursuant to Rule 20 of the Arizona Rules of Criminal Procedure on this charge because there was insufficient evidence that his "brandishing" the knives disturbed his mother's peace. However, Nichols's Rule 20 motion at trial was based solely on insufficient evidence of the charge of aggravated assault against Shirley, not disorderly conduct, which had not been discussed as a lesser included at the time. The trial court properly denied the motion. See State v. Landrigan, 176 Ariz. 1, 4, 859 P.2d 111, 114 (1993) (stating that if reasonable minds could differ on the inferences to be drawn from the evidence, a Rule 20 motion should be denied and the matter should be submitted to the jury). In any case, the issue is now moot because the jury acquitted Nichols of the aggravated assault charge against his mother and, as discussed, the evidence supports its guilty finding for disorderly conduct.
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II. Error in Instructing on Disorderly Conduct with a Weapon
¶16 At trial, Nichols requested a lesser included offense instruction on simple assault but objected to the State's request for a lesser included instruction on disorderly conduct with a weapon. He argued that a disorderly conduct instruction was not warranted because: (1) unlike this case, the cases cited by the State involved the discharge of a firearm; and (2) there was insufficient evidence of disorderly conduct because, if Crystal's testimony was believed, the jury could only find him guilty of aggravated assault. ¶17 On appeal, Nichols argues that the trial court erred in instructing the jury on the lesser included offense of disorderly conduct with a weapon because the charge was not supported by sufficient evidence at trial. His argument is based on his contention that Crystal's trial testimony that he actually threatened to kill them both with the knives could only support an "all or nothing" guilty finding for the offense of aggravated assault, depending upon whether or not the jury believed her version of the events. For these reasons, he maintains that we must vacate his convictions on both counts of disorderly conduct, including Count 1 involving Crystal. ¶18 The issue of whether an offense is a lesser included offense is a question of law we review de novo. State v. Cheramie, 218 Ariz. 447, 448, ¶ 8, 189 P.3d 374, 375 (2008). We review a trial court's decision to give a particular instruction for an abuse of discretion. State v. Johnson, 205 Ariz. 413, 417, ¶ 10, 72 P.3d 343, 347 (App. 2003). A party is entitled to an instruction on any theory reasonably supported by the evidence. Id. ¶19 First, as we noted above, our supreme court in Miranda held that instructions regarding disorderly conduct with a weapon are appropriate in aggravated assault cases so long as the facts support both instructions. 200 Ariz, at 68, ¶ 3, 22 P.2d at 507. Relying on Miranda, the trial court determined that the facts in this case merited the instruction because it found that the facts presented at trial could be interpreted by the jury in a number of ways depending on "who they believe, who they don't believe." We agree, finding, as noted above, that the facts supported the conviction on Count 2. ¶20 The undisputed evidence was that Nichols obtained two knives and displayed them in the presence of the two victims. The only disputed issue was whether in so doing he intended to place the two victims in "reasonable apprehension of imminent physical injury" or merely to "disturb" or frighten them. See State v. Burdick, 211 Ariz. 583, 586, ¶ 9, 125 P.3d 1039, 1042 (App. 2005) (stating that the distinguishing element between aggravated assault and disorderly conduct with weapon is "the intent to place the victim in reasonable apprehension of imminent physical injury"). That was an issue for the jury to resolve based upon its interpretation of the evidence and its evaluation of Shirley's and Crystal's testimony, as the trial court noted. See Miranda, 200 Ariz, at 69, ¶ 7, 22 P.3d at 508 (holding that conflicting evidence does not preclude lesser included instruction). Even if the jury believed Crystal's testimony that Nichols held the knife to her throat and threatened harm to her and Shirley, it could also have believed his mother's testimony that he was simply upset with Crystal and irrational, but that he never intended to harm either one of them even though he knowingly or intentionally disturbed the peace by wielding two knives. Based on the facts in this case, the trial court committed no error in giving the lesser included instruction. ¶21 Contrary to Nichols's argument, Nichols was not entitled to an "all or nothing" defense. "[T]he State is entitled to lesser included instructions when the evidence so warrants." State v. Gipson, 229 Ariz. 484, 486, ¶ 11, 277 P.3d 189, 191 (2012). The trial evidence here supported a lesser included instruction on both charges, and the trial court, therefore, did not abuse its discretion in giving one at the prosecutor's request.
CONCLUSION
¶22 For the foregoing reasons, we affirm Nichols's convictions and sentences.
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DONN KESSLER, Judge
CONCURRING: _______________
JOHN C. GEMMILL, Acting Presiding Judge
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LAWRENCE W. WINTRHOP, Judge