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State v. Ingram

Court of Appeals of Arizona, Second Division

February 11, 2016

THE STATE OF ARIZONA, Appellee,
v.
ROCK KELLY INGRAM, Appellant

          Appeal from the Superior Court in Pinal County. No. S1100CR201300228. The Honorable Bradley M. Soos, Judge.

         Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Kathryn A. Damstra, Assistant Attorney General, Tucson, Counsel for Appellee.

         Rosemary Gordon Pá nuco, Tucson, Counsel for Appellant.

         Presiding Judge Vásquez authored the opinion of the Court, in which Chief Judge Eckerstrom and Judge Miller concurred.

          OPINION

Page 937

          VÁSQUEZ, Presiding Judge:

         [¶1] Following a jury trial, Rock Ingram was convicted of misconduct involving weapons. On appeal, he argues the trial court erred in denying his request for a peremptory change of judge pursuant to Rule 10.2, Ariz. R. Crim. P. In addressing this issue, we first must determine whether the court's ruling may be challenged on direct appeal or must be reviewed in a special action. Ingram also contends the state presented insufficient evidence to support his conviction. For the following reasons, we affirm.

         Factual and Procedural Background

         [¶2] We view the facts and all reasonable inferences therefrom in the light most favorable to upholding Ingram's conviction. See State v. Almaguer, 232 Ariz. 190, ¶ 2,

Page 938

303 P.3d 84, 86 (App. 2013). In August 2012, officers received information that Ingram, who had an outstanding felony arrest warrant from Wisconsin, was at a house in Maricopa. Because the U.S. Marshals Service had warned that Ingram was possibly armed with a .40-caliber pistol and " would use it to elude capture," the officers called for backup. They then entered the house, detained Ingram, and found a .40-caliber bullet in his front left pocket.

         [¶3] N.H., who was renting the house, told the officers that Ingram was staying there, along with N.B. and her children. N.B. informed the officers that there was a gun in the house, and N.H. consented to a search. With N.B.'s assistance, the officers found a .40-caliber semi-automatic pistol in a briefcase, which was located in an empty television box in the master-bedroom closet. The pistol had seven rounds in the magazine and one loaded in the chamber. The briefcase also contained a box of .40-caliber ammunition, a gun-cleaning kit, and an empty prescription pill bottle belonging to Ingram.

         [¶4] A grand jury indicted Ingram for one count of misconduct involving weapons by knowingly possessing a deadly weapon as a prohibited possessor. The week before trial, the case was reassigned to the trial judge by an " immediately distributed" order dated January 29, 2015. Ingram filed a notice of change of judge as a matter of right pursuant to Rule 10.2 on February 2, 2015, the day before trial. The court denied the notice as untimely.

         [¶5] Ingram was convicted as charged, and the trial court sentenced him to a presumptive term of imprisonment of 2.5 years.[1] We have jurisdiction pursuant to A.R.S. § § 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

         Change of Judge

         [¶6] Ingram contends the trial court erred by denying his request for a peremptory change of judge pursuant to Rule 10.2. The state responds that " this court lacks jurisdiction to consider [Ingram's] argument" because he should have challenged the court's ruling by special action.[2] We conclude that Ingram's challenge to the court's ruling is not reviewable on direct appeal.

         [¶7] Rule 10.2(a) provides: " In any criminal case, each side is entitled as a matter of right to a change of judge." To exercise this right, a party must file a notice of change of judge signed by counsel, avowing that the request is made in good faith. Ariz. R. Crim. P. 10.2(b). The rule provides time frames for filing the notice depending on the stage of the proceedings.[3] Ariz. R. Crim. P. 10.2(c). The question presented here is whether a ruling on a Rule 10.2 notice of ...


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