Appeal from the Superior Court in Mohave County No. S8015CR201100757 The Honorable Steven F. Conn, Judge
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee
Mohave County Appellate Defender's Office, Kingman By Jill L. Evans Counsel for Appellant
Judge Samuel A. Thumma delivered the opinion of the Court, in which Presiding Judge Randall M. Howe and Judge Diane M. Johnsen joined.
Samuel A. Thumma, Judge
¶1 Defendant Zane Dickinson appeals his conviction and sentence for attempted second degree murder. Dickinson argues fundamental, prejudicial error because a jury instruction allowed the jury to return a guilty verdict upon a showing that he "[k]new that his conduct would cause . . . serious physical injury, " rather than death. Concluding Dickinson has not met his burden to show prejudice from this fundamental error, his conviction and resulting sentence are affirmed.
FACTS AND PROCEDURAL HISTORY
¶2 For years, Dickinson and C.H., the victim, had been friends. In June 2011, they had a falling out when Dickinson failed to perform yard work he had agreed to do and refused to return tools to the victim. The two argued and Dickinson pulled a knife, but the victim fought back and was able to get away.
¶3 On July 2, 2011, while riding his bicycle, the victim saw Dickinson's truck at the house of a mutual friend. The victim then approached Dickinson, again asking for the return of his tools and asking that Dickinson refund money to a customer for whom Dickinson had failed to perform work. According to the victim, as he walked by the truck, Dickinson "pulls out this ax, and he's coming at me." After a scuffle, Dickinson told the victim "he's going to kill me, and all this stuff, you know, and he cussed me and called me names. So I was just trying . . . I got on my bike and rode away." Dickinson then apparently told the mutual friend "I'm going to run him over" and then left.
¶4 A short time later, while riding his bicycle near an alley, the victim saw Dickinson approaching in "a Ford Ranger, extended cab" truck. At trial, the victim testified:
I looked up and I seen him, and the last thing in my head is, he smiled. So next thing I know, he revved up his motor and he shot towards me. And I remember what happened. He hit the back of my bike, he had spun me all the way around about ten feet in the dirt. I landed on the dirt.
Still able to ride, the victim got back on his bicycle, "trying to get away." The victim thought he had lost Dickinson, but "all of a sudden I hear his motor revving up, and I look back and he's no more than maybe a foot from my bumper [of the bike], and he's laughing; so I realize what's going on." The victim again tried to get away, including riding toward a field, but "at the same time [Dickinson] turns his wheel and hit[s] my bike; and that's the last thing I remember, and I wake up in the hospital."
¶5 According to a witness, Dickinson "parked in this field, like he was waiting for [the victim], in his truck, with it running." The witness testified Dickinson ran the victim "down on his bicycle. [The victim] went up underneath the truck. . . . The bike collapsed, and [the victim] was drug underneath the truck." After running over the victim, Dickinson sped off. The victim sustained multiple injuries, including a concussion and head injuries resulting in 13 stitches, including across his eye; a broken ankle and his "funny bone was ripped out" from his elbow. The mutual friend testified that, after the incident, Dickinson returned and parked his truck at the friend's house, tossed the keys to the friend and said "that he had did it. That he done it."
¶6 The indictment charged Dickinson with attempted second degree murder, a class 2 dangerous felony, and other felony offenses. The State's theory of the case was that Dickinson tried to kill the victim. Dickinson did not testify and called no witnesses but asserted a defense of mistaken identity and claimed he had no involvement. Dickinson argued someone else ran over the victim and that he was being framed in an attempted insurance or prescription drug fraud. At no ...