Opinion
No. 2 CA-CR 2017-0320
06-28-2018
THE STATE OF ARIZONA, Appellee, v. PERRY THOMAS TAYLOR, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Mariette S. Ambri, Assistant Attorney General, Tucson Counsel for Appellee Rosemary Gordon Pánuco, 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NOT FOR PUBLICATION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 Pinal County
No. S1100CR201602822
The Honorable Lawrence M. Wharton, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Mariette S. Ambri, Assistant Attorney General, Tucson
Counsel for Appellee Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. ECKERSTROM, Chief Judge:
¶1 Perry Taylor appeals from his conviction and sentence for aggravated assault and resisting arrest, arguing the state did not produce sufficient evidence of the former charge. We affirm.
Factual and Procedural Background
¶2 In October 2016, an officer with the Maricopa City Police Department saw Taylor driving ten miles over the speed limit and failing to honor a stop sign. The officer activated his emergency lights, but Taylor continued driving, bypassing several places where he could have pulled over, until he stopped at a nearby gas station.
¶3 When the officer parked behind the car, both Taylor and the officer exited their vehicles and Taylor asked why he had been stopped. The officer asked Taylor for his license, registration, and proof of insurance. Taylor refused and began to walk away; the officer tried to detain him so he could issue a citation. Taylor began pulling away and screaming he was being assaulted, and a struggle ensued. During the struggle, Taylor began swinging at the officer with his elbows and kicking the officer's legs, causing both men to "slam[] into the concrete," injuring the officer's knee.
¶4 At the close of the state's case in chief, Taylor moved for judgment of acquittal. The court denied the motion and the jury convicted Taylor of aggravated assault and resisting arrest. The court suspended the imposition of sentence and imposed a three-year probation term, with a ten-day period of jail time as a condition of probation. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
Taylor does not contest his conviction and sentence for resisting arrest.
Sufficiency of the Evidence
¶5 Taylor claims the evidence was insufficient to convict him of aggravated assault. We review the sufficiency of the evidence de novo. State v. Pena, 235 Ariz. 277, ¶ 5 (2014). We will affirm if substantial evidence supports the verdict. State v. Scott, 177 Ariz. 131, 138 (1993). Substantial evidence 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. Mathers, 165 Ariz. 64, 67 (1990), quoting State v. Jones, 125 Ariz. 417, 419 (1980). In making this determination, we view the facts in the light most favorable to sustaining the jury's verdict. State v. Cox, 217 Ariz. 353, ¶ 22 (2007). We test the evidence against the statutory elements of the offense, but do not reweigh it. State v. Dodd, 244 Ariz. 182, ¶ 8 (App. 2017).
¶6 A person commits aggravated assault as charged here by "intentionally . . . or recklessly causing any physical injury to another person," A.R.S. § 13-1203(A)(1), while "knowing or having reason to know that the victim is . . . [a] peace officer," A.R.S. § 13-1204(A)(8)(a). "'Intentionally' . . . means, with respect to a result or to conduct described by a statute defining an offense, that a person's objective is to cause that result or to engage in that conduct." A.R.S. § 13-105(10)(a). "'Recklessly' means . . . that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists." A.R.S. § 13-105(10)(c). Further, "[t]he risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation." Id.
¶7 First, Taylor asserts the evidence was insufficient to convict him of aggravated assault because he was unaware that exiting his car created a substantial and unjustifiable risk that the officer would be injured. Second, he asserts that exiting his car was not the proximate cause of the officer's injury because that injury was not a foreseeable result of his conduct.
¶8 The assault, however, occurred not when Taylor exited his car but rather when he chose to swing at the officer with his elbows and kick the officer's legs. These actions during Taylor's struggle with the officer caused the officer to lose balance and fall to the pavement, injuring his knee. A reasonable jury could infer that Taylor was aware of the risk posed by his actions. See State v. McGill, 213 Ariz. 147, ¶ 19 (2006). Therefore, a reasonable jury could find that Taylor acted recklessly.
¶9 Second, Taylor argues the evidence was insufficient to show that he proximately caused the officer's injury. In criminal cases, the state must establish that the defendant's actions were both but-for and proximate cause. State v. Marty, 166 Ariz. 233, 236 (App. 1990). Proximate cause requires that the difference between the result intended by the defendant and the harm actually suffered by the victim "is not so extraordinary that it would be unfair to hold the defendant responsible for the result." Id. at 237.
Taylor does not contest but-for causation. --------
¶10 Here, when Taylor swung his elbow at the officer and kicked at his legs, it was foreseeable that the officer might fall and suffer an injury. Accordingly, it would not be unfair to hold Taylor responsible for the result. See id. Thus, the jury could reasonably find that Taylor proximately caused the officer's injury.
Disposition
¶11 Because sufficient evidence supports Taylor's conviction, we affirm.