Court of Appeals of Arizona, First Division, Department C
Not for Publication -Rule 111, Rules of the Arizona Supreme Court.
Appeal from the Superior Court in Maricopa County Cause Nos. CR2008-175582-001 CR2012-119764-001 The Honorable David B. Gass, Judge.
Thomas C. Horne, Arizona Attorney General Phoenix by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender Phoenix by Joel M. Glynn, Deputy Public Defender Attorneys for Appellant.
¶1 Defendant Wayne G. Carrethers appeals his convictions and sentences for attempted aggravated assault and for threatening or intimidating. This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Defendant's appellate counsel has searched the record on appeal and found no arguable nonfrivolous question of law, and asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Defendant was given the opportunity to file a supplemental brief in propria persona but did not do so.
¶2 We have searched the record for fundamental error and find none. Accordingly, we affirm.
FACTS AND PROCEDURAL HISTORY
¶3 In 2009, Defendant pled guilty to aggravated assault and was placed on probation for a term of four years. As a condition of his probation, Defendant was required to "[o]bey all laws." In 2012, Defendant's probation officer filed a petition to revoke probation after Defendant was arrested. Defendant was then indicted for the class 1 misdemeanor offenses of disorderly conduct and threatening or intimidating, and the class 6 felony of attempted aggravated assault. Defendant pled not guilty to all charges.
¶4 Before trial, Defendant entered a stipulation with the state by which he waived his right to a jury trial, admitted to two prior non-historical felony convictions, and admitted that he was on probation at the time of the charged offenses. In return, the state agreed to dismiss its allegation of historical prior felony convictions, and agreed that the sentencing range for a conviction on the attempted aggravated assault charge would be from 1 to 1.8 years. Later, the state asked for and obtained dismissal of the disorderly conduct charge.
¶5 At the bench trial, the state presented evidence of the following facts. On April 13, 2012, the Phoenix Police Department received a call about Defendant. Officer Derrick Minton, driving a marked patrol vehicle and wearing his full police uniform, responded to the call and encountered Defendant walking on a street. Defendant confirmed his name when Officer Minton asked but then stated that he was not going to talk. When Officer Minton exited his vehicle to continue the conversation with Defendant, Defendant yelled and swore at the officer, "throwing his arms around." Defendant also threw his cell phone and wallet onto the ground.
¶6 Concerned by Defendant's behavior, Officer Minton restrained him by handcuffing his hands behind his back. Officer Minton, along with another uniformed officer who had since arrived on the scene, then walked Defendant toward the patrol vehicle. When the group reached the vehicle, Defendant announced that he had a variety of weapons, including a bomb, and was going to blow up the officers. As Officer Minton began patting down Defendant's lower body to check for weapons, Defendant pulled away from the other officer, moved his head within about six inches of Officer Minton's face, stuck out his tongue, and stated that he was going to lick Officer Minton on the face. Officer Minton moved quickly to push Defendant's head away before Defendant's tongue reached him. Defendant then tried unsuccessfully several more times to lick Officer Minton, stating as he did so that he had HIV and was going to infect Officer Minton.
¶7 In an attempt to control Defendant's movements, the officers pushed Defendant's head into the back window of the patrol vehicle, causing him to sustain minor lacerations. Eventually, the officers were able to place Defendant in the backseat of the vehicle. Defendant refused medical treatment for his injuries.
¶8 At the conclusion of the state's case-in-chief, Defendant moved for judgments of acquittal. The court denied the motion. For his defense, Defendant testified that he had sworn at the officers and asked them to leave him alone. He also admitted having told the officers that he had an assault rifle, a hand grenade, and a bomb, but claimed that these statements were clearly sarcastic and the officers did not take them seriously. Defendant further admitted having flicked his tongue out while turning his head toward Officer Minton, but claimed that this was merely a gesture of anger and that he neither intended nor ...