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State v. Davis

Court of Appeals of Arizona, First Division

October 6, 2015

STATE OF ARIZONA, Appellee,
v.
NICOLE ANN DAVIS, Appellant.

Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Maricopa County No. CR 2013-448616-003 The Honorable Christopher T. Whitten, Judge

Arizona Attorney General's Office, Phoenix By Chris DeRose Counsel for Appellee

Ballecer & Segal, Phoenix By Natalee E. Segal Counsel for Appellant

Presiding Judge Margaret H. Downie delivered the decision of the Court, in which Judge Patricia A. Orozco and Judge Maurice Portley joined.

MEMORANDUM DECISION

DOWNIE, JUDGE.

¶1 Nicole Ann Davis appeals her conviction for child abuse. For the following reasons, we affirm.

FACTS AND PRCEDURAL HISTORY

¶2 Davis, her husband, mother-in-law, and seven-year-old daughter, S.P., were sitting in a Jehovah's Witness Kingdom Hall courtyard. Hall elders began receiving complaints that Davis' husband was causing a disturbance. The elders contacted Scottsdale Police and requested assistance. Officers arrived and asked the family to leave the property several times, but they refused. Davis' husband stated only "Jehovah" could make them leave and "it would be war" if the officers tried to make them leave. The officers again warned the family they were trespassing and asked them to leave; they again refused. A Hall elder also told the family they were trespassing and asked them to leave.

¶3 Officers decided to take Davis' husband into custody and attempted to separate him from the rest of the family. Lieutenant Rasmussen placed himself between the husband and other family members. Davis then punched Lieutenant Rasmussen in his neck. Lieutenant Rasmussen grabbed Davis by the arm, attempted to take her to the ground, and both of them fell to the ground. Davis continued to fight, punching and kicking Lieutenant Rasmussen as he tried to gain control of her arms. Lieutenant Rasmussen told Davis to stop resisting, but she did not comply and was "screaming at the top of her lungs." Lieutenant Rasmussen eventually pinned Davis, holding her down until another officer could assist with handcuffing her. Davis continued resisting and trying to kick the officers.

¶4 S.P. appeared "extremely upset" during the incident, and Davis yelled "[l]ots of times" for the child to hit Lieutenant Rasmussen. S.P. was screaming "not to hurt her mommy." Davis continued yelling at S.P. to hit Lieutenant Rasmussen, whereupon S.P. began hitting him in the face, head, and shoulders. Lieutenant Rasmussen asked S.P., "[w]ould you please stop hitting me[?]" and S.P. complied. The officers gained control of the situation and placed the three adults in handcuffs. When officers attempted to put S.P. in a patrol car, Davis and her husband again yelled at the child several times to "fight" the officers. S.P. did not comply this time and got into the patrol car.

¶5 Davis was charged with one count of aggravated assault, a class five felony in violation of Arizona Revised Statutes ("A.R.S.") sections 13-1203(A)(3), -1204(A)(8)(a); one count of resisting arrest, a class six felony, in violation of A.R.S. § 13-2508(A)(1); and child abuse, a class four felony, in violation of A.R.S. § 13-3623(B)(1).[1] A four-day jury trial ensued. At the close of the State's case-in-chief, Davis moved for a judgment of acquittal on the child abuse count, which the court denied. The jury found Davis guilty of resisting arrest and child abuse but not guilty of aggravated assault. The court sentenced her to two years' probation for each count, to run concurrently.

¶6 Davis timely appealed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), ...


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