Opinion
No. 1 CA-CR 18-0124
05-21-2019
STATE OF ARIZONA, Appellee, v. TROY KEVIN YAZZIE, SR., Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee The Hopkins Law Office, PC, Tucson By Cedric Martin Hopkins Counsel for 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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 Maricopa County
No. CR2016-107131-001
The Honorable Christopher A. Coury, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
The Hopkins Law Office, PC, Tucson
By Cedric Martin Hopkins
Counsel for Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge James B. Morse Jr. and Judge Jon W. Thompson joined.
SWANN, Judge:
¶1 Troy Kevin Yazzie, Sr., appeals his convictions and sentences for kidnapping and aggravated assault. He contends that the jury's verdicts were not supported by substantial evidence because the state presented no evidence identifying Yazzie as the assailant. We disagree, and therefore affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On February 13, 2016, at around 2:30 in the morning, Officer Fessler of the Phoenix Police Department was doing paperwork in his police car along with his partner, Officer Brookins. They were parked in a dirt lot west of 17th Avenue in Phoenix. The officers saw Yazzie, wearing a light-blue jogging outfit, running diagonally across the Goodwill parking lot. They then observed another man (the "Good Samaritan") walking quickly after Yazzie while holding a piece of wood. The officers stopped the Good Samaritan, who seemed to be out of breath and upset. The Good Samaritan was yelling and told the officers that the person he was pursuing had raped a woman (the "Victim") in an alley behind the Goodwill.
¶3 The officers told the Good Samaritan to stay in the parking lot, and they drove in the direction that Yazzie ran. They eventually caught up with Yazzie and took him into custody. The officers then went back to the alley behind the Goodwill, where they found the Victim, who was intoxicated and visibly upset. Officer Fessler noticed that the back of her shirt was dirty and that she was in the process of pulling up her pants; there was a puddle of urine around her. Victim told the police that her assailant was a young Hispanic male, between the ages of 24 and 28, approximately 5'8" tall, around 170 pounds, with short hair. She indicated that he was wearing short sleeves and Levi's or other blue jeans.
¶4 The officers went back to locate the Good Samaritan but could not find him even after additional officers were called to search the area. Officer Fessler asked Victim if she would go to the Family Advocacy Center
for an examination and she agreed. At the Center, Detective Ellen Bach inspected Victim and noted that she was "timid and tearful," and did not seem to be intoxicated at that time, though she admitted to being intoxicated at the time of the attack. Victim told Detective Bach that the assailant was in his late 30s to early 40s. When the detective asked if Victim thought she could pick her attacker out of a photo lineup, she said no; and when she later was presented with a lineup, she was unable to pick him out. Victim said that the assailant tried to pull her pants down and that she thought she had lost consciousness at some point. She was examined by Nurse Jessica Coats. Victim told Nurse Coats that she had been strangled by the assailant and that she suffered loss of consciousness, coughing, headache, light-headedness, dizziness, and difficulty breathing as a result. Victim did not complete a genital exam because she told the nurse that her pants had not been taken down. Nurse Coats documented 20 injuries, including contusions (bruises), petechiae ("purple dots used from extreme pressure or force to the venous capillaries"), abrasions (superficial scratches), erythema (redness of the skin), and lacerations (tears of the skin).
¶5 Nurse Coats took swabs from Victim's neck and hands, and scraped underneath her fingernails. She also collected Victim's clothing and turned it over to the police along with the swabs. Detective Bach then obtained a warrant to obtain swabs and clothing from Yazzie. In the meantime, a crime scene specialist collected several items from the scene of the attack, including "toilet paper, unused tampon packages, dental floss picks, a black Bic stick pen, a pair of eyeglasses with the lenses popped out, and a hair tie, some earrings."
¶6 Detective Bach discovered that Yazzie lived in Mesa, about 20 miles away from the scene of the attack. She also located a photograph of Yazzie from a prior date in which he was wearing glasses identical to the ones found at the crime scene. Yazzie had not been wearing glasses when he was arrested that night.
¶7 The next day, Detective Bach obtained surveillance video taken from the alley in which Victim was attacked. The camera was "motion-activated," so it only filmed when it detected motion in the alley and turned off when the motion disappeared. The video showed Victim walking southbound through the alley and a man wearing a jogging-style suit walking behind her. The man walking behind Victim began to speed up his pace as he approached her and then moved out of camera view just as he caught up to her. The camera footage then skipped forward nine minutes, showing the man running back up the alley. On the other side of
the alley wall, another individual, in dark clothing, can be seen running in the same direction as the first man and carrying something in his hands.
¶8 DNA analysis of Victim's clothing, neck, and hands, as well as Yazzie's hands, showed inconclusive results. The forensic analyst did not find a combination of Victim and Yazzie's DNA on any of the items tested. The analysis did reveal, however, that the DNA profile from the discarded eyeglasses was consistent with Yazzie's DNA.
¶9 At trial, Victim testified that on the night of the attack, she went to a bar in Phoenix with her partner. Toward the end of the night, Victim got separated from her partner and left after there was an altercation between her friends, and security removed them from the bar. She decided to walk home, which she had done on other occasions. She decided to walk in an ill-lit alley behind the stores on that street. Victim testified that she thought she was alone in the alley until she saw a shadow behind her, at which point she turned and a saw a man she did not know. She took a few steps back and fell as he leaned toward her, and soon he had his hands around her neck. She continued to struggle with him and felt like she was going to pass out; she was unable to see his face. She began to scream "rape" in the hope of someone hearing. She testified that she could not recall whether the man had managed to take off her pants, remembering only that she passed out and woke up to siren lights.
¶10 The jury found Yazzie guilty of kidnapping and aggravated assault, and not guilty of attempted sexual assault. The jury found three aggravating factors and the court found that Yazzie had two historical prior felony convictions. The court sentenced Yazzie to aggravated, concurrent sentences on both counts, for a total of 27 and 4.5 years respectively. Yazzie timely appeals.
DISCUSSION
¶11 Yazzie contends that the jury's verdicts are unsupported by substantial evidence because there is no evidence identifying him as the individual who assaulted Victim. Yazzie insinuates that the actual assailant was the Good Samaritan.
¶12 We review the sufficiency of the evidence de novo, State v. West, 226 Ariz. 559, 562, ¶ 15 (2011), and view the evidence in the light most favorable to upholding the verdict, State v. Girdler, 138 Ariz. 482, 488 (1983). We will not assess the credibility of witnesses because that is the jury's responsibility, State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App. 2004), and we
resolve any conflicting evidence in favor of sustaining the verdicts, State v. Bearup, 221 Ariz. 163, 167, ¶ 16 (2009).
¶13 Yazzie was convicted of kidnapping and aggravated assault. But the only issue on appeal is mistaken identity; therefore we assume all elements of kidnapping and aggravated assault have been met.
¶14 Contrary to Yazzie's contention, the state offered sufficient evidence to allow a reasonable jury to find that Yazzie was the assailant. Yazzie argues that there is no evidence showing he was the attacker. If we were to consider only Victim's testimony, the evidence might be insufficient to identify Yazzie as the perpetrator; Victim was intoxicated at the time of the assault, she was not able to recognize Yazzie as the assailant, and she gave conflicting descriptions of her attacker. The surveillance videotape combined with Officer Fessler's testimony, however, provided sufficient evidence to show that Yazzie was the perpetrator of the acts for which he was arrested and tried.
¶15 The surveillance tape shows a man in a jogging-style suit with rolled-up sleeves approach Victim and catch up to her just before going out of camera view. The man is then seen, nine minutes later, jogging back up the alley the same way he came. Officer Fessler testified that Yazzie was wearing a light-blue jogging outfit when he and his partner picked him up. The outfit Yazzie wore that night closely resembles the outfit of the man running away from the crime scene. Though Victim first described her attacker as having short sleeves, a reasonable juror easily could infer that the attacker's rolled-up sleeves were mistaken for short sleeves. Also, eyeglasses found at the crime scene were identical to those worn by Yazzie on a prior occasion and contained DNA evidence consistent with Yazzie. Therefore, we find the evidence sufficient to support the jury's determination that Yazzie was the assailant.
CONCLUSION
¶16 We affirm Yazzie's convictions and sentences.