Court of Appeals of Arizona, First Division, Department E
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Yavapai County Cause No. V1300CR201180102 The Honorable Michael R. Bluff, Judge
Thomas C. Horne, Attorney General by Joseph T. Maziarz, Chief Counsel, Criminal Appeals/Capital Litigation Division and Andrew Reilly, Assistant Attorney General Attorneys for Appellee
C. Kenneth Ray II, P.C., By C. Kenneth Ray II Attorney for Appellant
JOHN C. GEMMILL, Judge
¶1 Defendant, Tyler Wiliam Fetterhoff, appeals from the trial court's findings of dangerousness and aggravating circumstances relevant to his convictions and sentences on two counts of aggravated assault, each a Class 3 dangerous felony, and two counts of misdemeanor DUI. He raises the following arguments on appeal: (1) the trial court erred in permitting the state to present medical evidence concerning the victims' injuries; (2) the trial court erred in finding Defendant's vehicle was a "dangerous instrument" for purposes of the aggravated assault charges; (3) the trial court erred in denying defendant's motion for judgment of acquittal and subsequent motion for new trial; and (4) the trial court improperly retained jurisdiction over Defendant's case for the purpose of determining restitution. For the following reasons, we affirm the trial court's judgments and sentences.
FACTS AND PROCEDURAL HISTORY
¶2 The State charged Defendant with Count I, aggravated assault of Jerri Lynn H.,  a Class 3 dangerous felony; Count II, aggravated assault of Carmelita H., a Class 3 dangerous felony; Count III, extreme driving under the influence, with a blood alcohol level ("BAC") of 0.20 or more within two hours of driving, a Class 1 misdemeanor; Count IV,  driving under the influence with a blood alcohol level of 0.08 or more within two hours of driving, a Class 1 misdemeanor; and Count 5, driving while under the influence of intoxicating liquor and impaired to the slightest degree, a Class 1 misdemeanor. The charges arise out of an incident that occurred in February 2011 when Defendant, who was driving with a BAC of 0.278, drove his vehicle into the rear of the victims' Chevy Trailblazer while both vehicles were travelling southbound on Interstate 17.
¶3 Prior to trial, the State filed an "Allegation of Dangerousness" alleging that the aggravated assault offenses involved the use of a deadly weapon or dangerous instrument, a car, as well as an "Allegation of Aggravating Circumstances, " alleging the following aggravating circumstances: (1) the infliction or threatened infliction of serious physical injury; (2) the use, threatened use or possession of a deadly weapon or dangerous instrument during the commission of the crime; (3) the value of the property taken or damaged; and (4) the physical, emotional, or financial harm suffered by the victims.
¶4 Defendant entered into a stipulated agreement with the State in which he agreed to plead guilty to the charges (Counts I, II, III, and V) while preserving his right to contest the State's allegations of dangerousness and aggravating factors. With regard to the allegation of dangerousness, he stipulated that the State "may present evidence in a trial to a jury or to the Court" regarding (1) his "alcohol impairment, blood and breath alcohol levels, retrograde of alcohol levels to the time of the accident, and the universal blood alcohol level of impairment, " and (2) "the nature, extent and seriousness of the injuries suffered by the victims." Defendant also signed a waiver of a jury trial.
¶5 At a hearing in January 2012, the trial court accepted the stipulated agreement, Defendant's guilty plea, and Defendant's waiver of jury trial, and set the matter for a bench trial on the dangerousness and aggravating circumstances allegations. At the conclusion of a three-day trial during which the trial court accepted evidence and heard testimony, the court directed defense counsel and the prosecutor to file memoranda of law regarding the issue of dangerousness and took matters under advisement. On May 4, 2012, the trial court issued its ruling finding the State had proven its allegation of the dangerousness of the aggravated assault charges "either by the use of the Defendant's vehicle [as a deadly instrument] or [Defendant's] intentional or knowing infliction of serious physical injury. . ." It also found the State had proven two aggravating circumstances: (1) Defendant's actions caused significant property damage to the victims' vehicle and (2) each victim suffered significant emotional harm. The court specifically stated it did not find the infliction of serious physical injury to be an aggravating factor.
¶6 On July 9, 2012, the trial court sentenced Defendant to concurrent, slightly mitigated terms of 6.5 years in prison on each of the aggravated assault charges as Class 3 dangerous felonies (Counts I and II) and to concurrent, six-month jail terms for the misdemeanor DUI offenses with credit for six months served. Defendant timely appealed. This court has jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (1992), 13-4031 and 13-4033 (2010).
Erroneous Admission of Medical Evidence ...