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State v. Smith

Court of Appeals of Arizona, First Division

December 26, 2013


Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Coconino County No. CR S0300CR201100805 The Honorable Jacqueline Hatch, Judge

Attorney General's Office, Myles A. Braccio Counsel for Appellee

Coconino County Public Defender's Office, Flagstaff By Brad Bransky Counsel for Appellant

Presiding Judge Peter B. Swann and Judge Pro Tempore Sally S. Duncan joined.


Kenton D. Jones, Judge

¶1 Curtis Ray Smith Jr. (Defendant) appeals his convictions and sentences for aggravated assault, attempted armed robbery and criminal damage. He challenges the admissibility of two witnesses' trial testimony, and he asserts his trial was unfair due to prosecutorial misconduct. Defendant also argues the trial court improperly used a foreign prior felony conviction for sentencing purposes. We affirm.


¶2 The trial evidence reveals the following.[1] In the late evening of November 2, 2011, AB was waiting in her car in the parking lot of a rest area on eastbound I-40 when she observed a "young guy" wearing a black and red jacket follow another man from the restroom and attack him with an "eight to ten inches long . . . cylinder-type [flashlight]." AB could not see the assailant's face. The victim testified that the man following him demanded his wallet and then proceeded to hit him in the head and body with a "pipe, " knocking him to the ground. When AB turned on her headlights to illuminate the altercation, she observed the assailant hide nearby and eventually leave the scene in a dark vehicle bearing a gray-colored hood. AB called 9-1-1 to report the crime. The victim of the assault sustained multiple internal injuries as well as cuts and bruises to his face and head. During the assault, the victim grabbed and squeezed the attacker's jacket to "mark" him with the blood that was "all over [the victim's] hands [and] face and everything."

¶3 Approximately twenty minutes later, DPS Officer Gould arrived at the scene. He could not initially locate the described vehicle, but he soon found it parked "backwards" in a parking spot at the westbound rest area. The car's hood was warm to the touch. Officer Gould woke Defendant and a female who appeared to be sleeping under a blanket in the front passenger side of the vehicle. YM, the woman in the car, explained she and Defendant were driving her car home to Alabama from Las Vegas when they stopped at the rest area earlier in the day to ask travelers for gas money. She said she had fallen asleep in the car's passenger seat in the evening, and she woke up when Defendant returned to the vehicle and proceeded to "speed[] off" to the rest area on the other side of the freeway because, he explained, "there wasn't a whole lot of people" at the present location.

¶4 Officer Gould noticed Defendant was not wearing a jacket. Officer Gould found a blood-stained black and red jacket in a trash can located behind the vehicle. According to YM, Defendant was wearing a red, black and gray jacket that was not stained when they arrived at the eastbound rest area. YM further explained that, after she and Defendant changed location to the westbound rest stop, Defendant exited the car for three to four minutes and returned without his jacket. Subsequent forensic testing revealed that DNA and blood taken from the jacket Officer Gould located were "perfect match[es]" for Defendant and the victim, respectively.

¶5 Officer O'Farrell transported AB to the westbound rest area, and AB recognized the jacket that Officer Gould found in the trash can; she stated it "look[ed] like the same" one the attacker was wearing. AB also identified the car in which YM and Defendant were found sleeping as the one the attacker used to flee the crime scene. Officer O'Farrell observed what appeared to be blood on Defendant's pants and shoes.

¶6 Meanwhile, as Officer Gould talked to YM and described the weapon used in the assault as "club style, " YM disclosed that she kept a "tire checker" under the driver's seat.[2] YM offered to retrieve the tire checker for Officer Gould, and she located it under the passenger seat. YM explained to Gould that "as [Defendant] came in the vehicle, it felt like he was doing something underneath [the passenger] seat." Subsequent DNA testing revealed Defendant was a major contributor to DNA found on the tire checker's handle.

¶7 The evidence further revealed that while in pre-trial custody Defendant contacted YM multiple times requesting she not testify at trial. In a recorded telephone call ...

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