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State v. Harvey

Court of Appeals of Arizona, First Division

December 19, 2013

STATE OF ARIZONA, Appellee
v.
COREY HARVEY, Appellant.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court.

Appeal from the Superior Court in Maricopa County CR2012-113139-001 The Honorable Shellie F. Smith, Judge.

COUNSEL

Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee.

Maricopa County Public Defender's Office, Phoenix By Jeffrey L. Force Counsel for Appellant.

Judge John C. Gemmill delivered the decision of the Court, in which Presiding Judge Patricia K. Norris and Judge Michael J. Brown joined.

MEMORANDUM DECISION

GEMMILL, Judge.

¶1 Corey Harvey appeals from his conviction for aggravated domestic violence, a class 5 felony. Harvey's counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), stating that he has searched the record, and finding no arguable question of law, he asks this court examine the record for fundamental error. Harvey was afforded the opportunity to file a pro se supplemental brief, and he has done so. See State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). For the following reasons, we affirm.

BACKGROUND

¶2 In August 2012, Harvey was convicted for Aggravated Domestic Violence, a class 5 felony, in violation of Arizona Revised Statutes ("A.R.S.") §§ 13-1203, -3601, and -3601.02 At trial, the State presented evidence that on February 29, 2012, M.H., who was the victim as well as Harvey's wife, drove with Harvey to pick up her sister, C.S., from work. According to M.H., when they arrived home, Harvey said something that upset her.

¶3 As conversation between Harvey and M.H. continued, M.H. became angry and punched a hole into the wall. M.H. testified that as her family came down the stairs, M.H. and Harvey started to argue, and she grabbed an iron and swung it at Harvey. M.H. testified that she hit Harvey on the arm with the iron and received scratches on her neck when Harvey grabbed her neck to brace himself. M.H. also testified that C.S. was standing next to her when she swung the iron at Harvey. M.H. testified that C.S. called the police, and when they arrived, M.H. told them she did not want to talk. Finally, M.H. indicated that she did not tell the police at the scene about the iron, but tried to tell them at a later date.

¶4 C.S. testified that she did not remember whether M.H. grabbed the iron when she took her children outside. C.S. also said that she never saw Harvey touch M.H. during the argument. Both of C.S.'s children, T.S. and D.S., testified that they remembered the argument but did not see Harvey or M.H. touch each other. Both T.S. and D.S. did not remember specific statements they independently made to police.

¶5 Officer Molenkamp, who interviewed the witnesses at the scene, testified that C.S. told him that, during the argument, Harvey's arm was fully extended with his hand around M.H.'s throat. Officer Molenkamp also recounted that C.S. told him that Harvey slammed M.H. into the wall several times while she repeated, "Let me go. Let me go." Officer Molenkamp testified that both children, D.S. and T.S., corroborated that story at the scene, but T.S. told the officer that Harvey had two hands around M.H.'s neck. At trial, the State introduced into evidence two previous domestic violence convictions that occurred in 2008. Subsequently, the jury found Harvey guilty of aggravated domestic violence.

¶6 After the jury found Harvey guilty, the trial court conducted a hearing on aggravating circumstances. The jury found two aggravating circumstances proven beyond a reasonable doubt: physical, emotional, or financial harm to the victim, and domestic violence committed in the presence of a child. Based on the guilty verdict, the court found ...


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