Opinion
2 CA-CR 2024-0075
10-03-2024
The State of Arizona, Appellee, v. Brian Tavarace Walker, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee Janelle A. Mc Eachern, Chandler Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Mohave County No. CR202300456 The Honorable Billy K. Sipe Jr., Judge Pro Tempore
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee
Janelle A. Mc Eachern, Chandler Counsel for Appellant
Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Gard and Chief Judge Staring concurred.
MEMORANDUM DECISION
ECKERSTROM, JUDGE
¶1 Brian Walker appeals from his conviction and sentence for aggravated assault. For the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to sustaining the jury's verdicts, resolving all reasonable inferences against Walker. See State v. Fierro, 254 Ariz. 35, ¶ 2 (2022). In March 2022, while running an errand in an unfamiliar part of Golden Valley, R.H. took a wrong turn and found himself lost in the desert. He approached Walker to ask for directions, stopping his SUV and attached trailer on the dirt road near where Walker stood by a vehicle.
¶3 Walker looked "very adamantly mad." R.H. explained that he was responding to an advertisement, and Walker responded rudely, with disbelief. R.H. apologized, said he was going to leave, and "cautiously backed up," rolling his trailer into a dead creosote bush as he maneuvered through the turn. At that point, Walker "yelled and screamed," causing R.H. to stop mid-turn. Walker then ran toward R.H., screaming that R.H. was "running over his stuff." He ordered R.H. to shut off his SUV and hand over the keys, which R.H. declined to do.
¶4 Walker started yelling into his cell phone, at which point a young man appeared with a firearm. Walker repeatedly yelled at R.H., "You did it now," while telling the armed man what R.H. had done. Walker was standing near the front bumper of the SUV, making R.H. feel trapped. Fearful and "[a]lmost in tears," R.H. hid his head and repeatedly told the men he wanted to go home.
¶5 When Walker finally stepped away from the SUV, R.H. began to leave. While he drove away, R.H. heard the "tinking noises of bullets" hitting his vehicle. He was concerned the armed men would chase him, and he believed they were going to try to kill him. R.H. eventually reached a main road, by which time his SUV was overheating, was "riddled with bullet holes," and had two flat tires. R.H. then called the police. During interviews with law enforcement, Walker confirmed that R.H. had stopped his SUV in front of Walker's driveway and had run into a bush. Walker further confirmed that he had shot at R.H.'s SUV, intending to "destroy" the vehicle.
¶6 The state charged Walker with aggravated assault and disorderly conduct involving a weapon. During a two-day trial, a jury found him guilty on both counts. On the state's motion, the trial court dismissed the disorderly conduct count as a lesser-included offense of the aggravated assault. The jury further found that the state had proven two aggravating factors beyond a reasonable doubt: (a) the infliction or threatened infliction of serious physical injury; and (b) that R.H. had suffered physical, emotional, or financial harm. The court sentenced Walker to a presumptive prison term of 7.5 years. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1), (4).
The state also charged Walker with discharging a firearm at a structure. On the state's motion, that charge was dismissed without prejudice before trial.
Discussion
I. Substantial Evidence
¶7 Walker argues the jury's verdict was "not supported by substantial evidence." In particular, he maintains that his intent "was to destroy the vehicle, not to harm" R.H.
¶8 The "question of sufficiency of the evidence is one of law," which we review de novo. State v. West, 226 Ariz. 559, ¶ 15 (2011). We must decide whether the state presented evidence that "reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290 (1996). In so doing, we may not "reweigh evidence or reassess the witnesses' credibility." State v. Buccheri-Bianca, 233 Ariz. 324, ¶ 38 (App. 2013). If jurors could reasonably differ as to whether the evidence establishes the necessary facts, that evidence is sufficient as a matter of law. See State v. Davolt, 207 Ariz. 191, ¶ 87 (2004).
¶9 To show Walker committed aggravated assault under A.R.S. § 13-1203(A)(2) and as charged in the indictment, the state was required to prove that, while using "a deadly weapon or dangerous instrument," A.R.S. § 13-1204(A)(2), he intentionally placed R.H. "in reasonable apprehension of imminent physical injury." Intent, a state of mind, may be inferred from the circumstantial evidence, including "the circumstances of the doing of the act itself," State v. Rodriguez, 114 Ariz. 331, 333 (1977), as well as Walker's "conduct and comments," State v. Routhier, 137 Ariz. 90, 99 (1983). Instructively, our supreme court has concluded that the act of "shooting out" the tires of a police vehicle suffices as evidence of a defendant's intent to place a police officer in reasonable apprehension of imminent physical harm, notwithstanding the defendant's testimony that his intent was only to "shoot out the tires of the vehicle" to make it stop moving. In re Pima Cnty. Juv. Action No. J-78539-2 , 143 Ariz. 254, 256 (1984).
These statutes have recently been partially renumbered and amended. See 2024 Ariz. Sess. Laws, ch. 257, §§ 1-2. As these changes are not material for present purposes, this decision cites to the version as amended in 2024.
¶10 The state presented sufficient evidence here. R.H. testified that Walker repeatedly yelled "[y]ou did it now" at him, while apparently summoning another person, who wielded a gun. As R.H. drove away, he heard about ten bullets hitting his vehicle from the direction he had just left. R.H. stated that, in the immediate aftermath, he had two newly-flat tires. R.H. further testified that he was concerned he would be chased and that he believed Walker was going to try to kill him. In addition to R.H.'s testimony, the state presented evidence in the form of photographs and officer testimony indicating that R.H.'s SUV displayed damage consistent with having been "shot at."
¶11 This evidence is sufficient to support the jury's finding that Walker used a firearm and intentionally placed R.H. in reasonable apprehension of imminent physical injury. See §§ 13-1203(A)(2), 13-1204(A)(2); see also Pima Cnty. No. J-78539-2 , 143 Ariz. at 256. To the extent Walker presented evidence that he merely intended to damage the SUV, not harm R.H. or place him in fear of being harmed, that argument goes to the weight, not the sufficiency, of the evidence presented at trial. We will not reweigh the evidence on appeal. Buccheri-Bianca, 233 Ariz. 324, ¶ 38.
II. Sentencing Claim
¶12 Walker contends the trial court erred "when it remarked on the excessive nature of this sentence, yet failed to include language which would allow [him] to appeal to the Board of Executive Clemency in [the] future." We generally review a trial court's sentencing determinations for abuse of discretion. See State v. Yug, 252 Ariz. 203, ¶ 4 (App. 2021).
¶13 The trial court did not err in failing to enter language allowing Walker to petition the Board of Clemency. See A.R.S. § 13-603(L) (permitting sentencing court to enter special order and "specific reasons" for allowing petition to Board of Clemency for commutation if court finds legally required sentence "clearly excessive"). Although the court commented regarding the extent of its discretion in imposing sentences, it made no finding that the statutorily required sentence was excessive in this case. The court did generally express frustration about having repeatedly been forced to sentence "otherwise . . . law-abiding" people with "no criminal records" who had, on an isolated occasion, been "careless in the use of a weapon, and then they ha[d] to go to prison." But the court proceeded to tell Walker, "[A]s a sentencing judge, . . . I simply impose the sentences I believe are appropriate as a judge." The court observed that sometimes it was required to impose sentences that it "personally" believed to be "too lenient" and other times sentences it believed to be "too lengthy or too harsh." Importantly, the court did not expressly indicate whether it considered the sentence in this case to be "too lenient" or "too harsh." And, after opining that it did not "relish or enjoy imposing a prison sentence on" Walker, the court nonetheless found the aggravating and mitigating circumstances in balance and imposed the presumptive prison term, although it had the discretion to find that the mitigating circumstances outweighed the aggravating ones, and impose a mitigated term. See, e.g., State v. Olmstead, 213 Ariz. 534, ¶ 6 (App. 2006) (recognizing sentencing court's "broad discretion" in weighing mitigating and aggravating factors when determining sentence). On this record, we cannot agree with Walker that the court found the sentence "clearly excessive."
¶14 Finally, even if we agreed with Walker's characterization of the trial court's commentary, § 13-603(L) gives sentencing courts the discretion, not the duty, to include language allowing clemency petitions. Id. (if, at time of sentencing, "court is of the opinion that a sentence that the law requires the court to impose is clearly excessive," court "may enter a special order allowing the person sentenced to petition the board of executive clemency for a commutation of sentence," so long as court "set[s] forth in writing its specific reasons for concluding that the sentence is clearly excessive" and allows state and victim to comment) (emphasis added). On this record, the court's decision not to enter such language would have been within its discretion even had it expressly found the sentence clearly excessive.
¶15 Walker also asks that we exercise our power under A.R.S. § 13-4037(B) to "reduce the extent or duration of the punishment imposed" if we agree that "the conviction is proper, but the punishment imposed is greater than under the circumstances of the case ought to be inflicted." This power must be wielded "with great caution and exercised only when it clearly appears that the sentence is too severe." State v. Hunt, 9 Ariz.App. 484, 485 (1969); see also State v. Long, 207 Ariz. 140, ¶ 27 (App. 2004) (power conferred by § 13-4037 extends to court of appeals). Accordingly, we do not exercise our statutory authority to reduce a sentence as excessive unless warranted by "such extraordinary circumstances as to make the sentence inconsistent with statutory intent." State v. Berger, 209 Ariz. 386, ¶ 31 (App. 2004), vacated in part on other grounds, 212 Ariz. 473, ¶ 51 (2006).
¶16 Our legislature, elected by the citizens of Arizona to express their values, has determined that those who commit assault under the circumstances here, including using a firearm, should face the presumptive sentence. See A.R.S. §§ 13-702(A), 13-704(A), 13-1204(F). Notably, a defendant may face exposure to the same sentencing range by merely threatening a victim with a deadly weapon. See §§ 13-1203(A)(2), 13-1204(A)(2). Here, Walker went further and discharged a deadly weapon numerous times at a vehicle R.H. occupied. R.H.'s "terror" of being seriously injured-or killed-was reasonable in light of Walker's threats and the numerous bullets that hit R.H.'s vehicle as he drove away. Thus, neither the nature of crime, Walker's mental state in committing it, nor its impact on the victim, were extraordinarily mitigated. On this record, we decline to conclude the sentence was clearly excessive.
Disposition
¶17 For the foregoing reasons, we affirm Walker's conviction and sentence.