Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County No. CR2012-103613-001 The Honorable Jerry Bernstein, Judge
Arizona Attorney General's Office, Adriana M. Zick Counsel for Appellee
Maricopa County Public Defender's Office, Mikel P. Steinfeld Counsel for Appellant
Presiding Judge Maurice Portley and Judge John C. Gemmill joined.
Kent E. Cattani, Judge
¶1 Matthew T. Hurley appeals from his convictions and sentences for aggravated assault and resisting arrest. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 The incident that gave rise to these charges began when Phoenix Police Officer Damian Baynes stopped Hurley at night after observing him bicycling the wrong way and failing to stop at a stop sign. After responding to preliminary questions, Hurley agreed to let Officer Baynes search his pockets. When Officer Baynes felt what he believed to be drugs in Hurley's shirt pocket, he asked what was in the pocket. Hurley responded, "Oh, shit, " and struck the officer's arm. Hurley pulled his jacket over his shirt pocket, then pushed Officer Baynes in the chest twice and started moving away from him notwithstanding the officer's commands to stop.
¶3 Officer Baynes radioed for help and finally succeeded in getting Hurley face down on the ground. Hurley continued to struggle, however, ignoring commands to put his hands behind his back, and repeatedly pulling his arms away from the officer. During the struggle, Hurley appeared to be trying to remove something from his shirt pocket.
¶4 Officer Baynes finally placed Hurley in a headlock until two additional officers arrived to assist in handcuffing him and taking him into custody. Officers were unable to find anything in Hurley's pocket or in the surrounding area.
¶5 At trial, Hurley denied that he had consented to a search, that he possessed drugs, or that he hit or pushed the officer. Hurley testified that after he told Officer Baynes he did not have drugs in his pocket, the officer "threw a combination of about ten punches, kicks, " hitting his eye, ear, and ribs, then forced him face down on the ground and placed him in choke hold. Hurley testified that he resisted only in an attempt to breathe. He also testified that other officers similarly hit or kicked him after they arrived at the scene. Hurley sustained a black eye and a bloody nose, and he claimed to have lost a tooth. Hurley admitted having three prior felony convictions.
¶6 The jury convicted Hurley of the charged offenses, and the court sentenced him to 4.75 years in prison. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") ...