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State v. Albritton

Court of Appeals of Arizona, Second Division

December 19, 2013

The State of Arizona, Appellee,
v.
Josh Alan Albritton, Appellant

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court.

Appeal from the Superior Court in Cochise County No. CR201100236 The Honorable James L. Conlogue, Judge

Thomas C. Horne, Arizona Attorney General, By Joseph T. Maziarz, Section Chief Counsel, Phoenix and Jonathan Bass, Assistant Attorney General, Tucson Counsel for Appellee

Lynn T. Hamilton, Mesa Counsel for Appellant

Chief Judge Howard authored the decision of the Court, in which Presiding Judge Vásquez and Judge Miller concurred.

MEMORANDUM DECISION

HOWARD, Chief Judge:

¶1 Following a jury trial, Joshua Albritton was convicted of three counts of aggravated assault and eight counts of misconduct involving weapons. On appeal, Albritton argues that insufficient evidence supported the jury verdicts on the weapons misconduct charges, that his cumulative eighty-year prison sentence for the weapons misconduct charges violates the Eighth Amendment's prohibition against cruel and unusual punishment, and that the prosecutor committed misconduct during closing arguments. For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to upholding the jury's verdicts. State v. Pena, 233 Ariz. 112, ¶ 4, 309 P.3d 936, 938 (App. 2013). In March 2011, a lending company sent L.M. to repossess Albritton's motorcycle because he had defaulted on the loan. L.M. arrived at Albritton's former wife's residence sometime between three and four in the morning and found Albritton in the driveway working on a truck. L.M. explained who he was and why he was there, but Albritton did not respond and instead began walking into the garage.

¶3 L.M. followed Albritton and stopped at the entrance of the garage. Albritton closed the garage door, trapping L.M.'s foot and hitting it with a hatchet, almost completely severing one of L.M.'s toes. Albritton then raised the garage door slightly, allowing L.M. to free his foot. L.M. returned to his work truck and called 9-1-1.

¶4 After police arrived, they obtained a warrant to search the house for evidence related to L.M.'s injuries. During the search, police found a hatchet that was consistent with the weapon used to injure L.M. Police also found two safes in the stairwell —a small combination safe and a larger safe that required a key to open. Albritton told the officers the combination to the smaller safe and explained that it contained the key to open the larger safe. The larger safe opened into a space underneath the stairs that reached up to the second story and contained eight firearms and a large amount of ammunition. Because Albritton was a convicted felon whose rights to possess a firearm had not been restored, officers seized the weapons and a portion of the ammunition.

¶5 Albritton was charged with and convicted of three counts of aggravated assault, eight counts of misconduct involving weapons by a prohibited possessor, and one count of refusing to provide his name to a police officer. He was sentenced to concurrent prison terms for the aggravated assault charges, the longest of which was ten years, and consecutive, presumptive ten-year prison terms for the weapons misconduct charges, totaling eighty years, to begin after the sentences for the aggravated assaults. We have jurisdiction over Albritton's appeal pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).

Sufficiency of the Evidence

¶6 Albritton first argues the trial court erred in denying his motion for a judgment of acquittal made pursuant to Rule 20, Ariz. R. Crim. P., because insufficient evidence supported the jury's verdicts for misconduct with weapons. He claims the state did not ...


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