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Not for Publication – Rule 111, Rules of the Arizona Supreme Court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 No. CR2011-137321-001 The Honorable Robert L. Gottsfield, Judge.
Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender Phoenix By Louise Stark, Deputy Public Defender Attorneys for Appellant.
RANDALL M. HOWE, Judge.
¶1 This appeal is filed in accordance with Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969) . Counsel for Sean Ray Semallie asks this Court to search the record for fundamental error. Semallie was given an opportunity to file a supplemental brief in propria persona. Semallie has not done so although he has requested counsel raise three issues in this appeal. After reviewing the record, we affirm Semallie's conviction and sentence for aggravated assault, a class five felony.
FACTS AND PROCEDURAL HISTORY
¶2 We view the facts in the light most favorable to sustaining the trial court's judgment and resolve all reasonable inferences against Semallie. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998).
¶3 On July 19, 2011, the general manager of a motel observed Semallie and another individual swimming naked in the pool after receiving a complaint from a guest. The manager told them to leave the pool because some of the motel's guests included children. The men seemed intoxicated and began "cursing and slurring." When they returned to their room, one of the men called the front desk making slurs and requesting new sheets. The manager took the new sheets to the room, and Semallie answered the door. Semallie cursed and slurred at the manager, took the sheets the manager gave him, hit the manager on the arm twice, and slammed the door in his face. The manager then told the men through the closed door that he was calling the police "to get you out of here."
¶4 When the officers arrived, the manager informed them of the situation and requested that they remove the men from the premises. The officers and the manager approached the room, knocked on the door, and announced their presence. When no one answered, the manager opened the door with a passkey and cut the security lock with bolt cutters. Inside, both men were still naked and refused to leave or get dressed. The officers then decided to arrest Semallie for assaulting the manager, and both officers had to restrain Semallie to put handcuffs on him. While Semallie was still in the room, the other individual spit at both officers, and the officers put a black spit mask on him and handcuffed him. Two more officers arrived, took Semallie outside, and attempted to put shorts on him. When one of the officers stood after pulling up the shorts, Semallie spit in his face. The spit covered the officer's face, eyes, nose, and mouth, which was open at the time. The officer immediately used a wipe on his face to kill bacteria and other biohazardous material. Another officer put a spit mask on Semallie.
¶5 The State charged Semallie with aggravated assault for spitting on the officer, a class five felony, and assault for striking the manager, a class three misdemeanor. During trial, the State admitted pictures of the officers as they looked on that night, and a picture of the other individual in the spit mask. The officer Semallie spit on testified about the treatment he received to ensure he did not contract a disease. The officer received medical attention and treatment including "blood tests, some other preventative—antiseptic topical stuff that I had to use; and then, over the course of a year, I ha[d] to go back over different periods of time—for blood tests." These treatments affected his job, his life and his family. Semallie testified, in his own defense, that he did not spit on the officer, but he did admit to a prior felony conviction. At the close of the evidence, the trial court properly instructed the jury on the elements of the offense. The jury found Semallie guilty of the aggravated assault charge, but not guilty of the assault charge.
¶6The trial court conducted the sentencing hearing in compliance with Semallie's constitutional rights and Rule 26 of the Arizona Rules of Criminal Procedure. The court considered the physical and emotion toll on the victim, the egregiousness of the act, and Semallie's prior felony conviction, which he had admitted during his testimony. The court did not consider that Semallie was H.I.V. positive at the time of the act because the State had not shown proof beyond a preponderance of the evidence. The trial court sentenced Semallie to 3 years' imprisonment with credit for 183 days presentence incarceration.
¶7 We review Semallie's conviction and sentence for fundamental error. See State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991). Counsel for Semallie has advised this Court that after a diligent search of the entire record, she has found no arguable question of law. However, Semallie has requested counsel raise three issues: insufficiency of the evidence; introduction of a photograph of his co-defendant who was not ...