from the Superior Court in Pima County No. CR20153351001 The
Honorable Danelle B. Liwski, Judge.
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel, Phoenix By Tanja K. Kelly, Assistant Attorney
General, Tucson Counsel for Appellee
E. Peltz, Tucson In Propria Persona
Vásquez authored the opinion of the Court, in which
Presiding Judge Howard and Chief Judge Eckerstrom concurred.
After a jury trial, Vernon Peltz was convicted of aggravated
assault causing temporary but substantial disfigurement-a
lesser-included offense of aggravated assault causing serious
physical injury-and assault-a lesser-included offense of
aggravated assault with a dangerous instrument. The trial
court suspended the imposition of sentence and placed him on
concurrent terms of probation, the longer of which is three
years. On appeal, Peltz contends the prosecutor committed
misconduct by charging him with aggravated assault causing
serious physical injury and the court erred by denying his
motion for a judgment of acquittal on that charge because
there was only evidence of minor injuries. He also argues the
court erred by admitting lay witness opinion testimony and by
denying his motions to suppress. For the reasons that follow,
and Procedural Background
We view the facts in the light most favorable to sustaining
Peltz's convictions. See State v. Molina, 211
Ariz. 130, ¶ 2, 118 P.3d 1094, 1096 (App. 2005). In
December 2012, Arizona Department of Public Safety Trooper
Saleem Abdullah responded to a motor vehicle accident on
Oracle Road in Pima County. Abdullah's investigation
revealed that a pickup truck "had left the roadway going
northbound, crossed through the center line of the road
across opposing traffic, " traveled along the dirt
shoulder into and out of a ditch, and ultimately crashed into
a sign. He observed blood on the driver's side of the
vehicle, specifically, on the inside and outside of the door,
the seat, the floorboard, and the steering wheel. There was
no blood on the passenger's side. He saw emergency
medical technicians treating Peltz and Peltz s mother, J.K.
Peltz had a cut above his left eye that was bleeding, and he
had blood on his hands. J.K. did not have any open cuts or
blood on her, but she "complained of numerous pains to
Abdullah also noticed that Peltz had "red, watery eyes,
[a] flushed face[, ] . . . ptosis, which is a drooping of the
eyelids, " and "an upper body sway." When
Abdullah asked Peltz what had happened, Peltz stated that
"there was a crash and that, honestly, he had a few
Medical technicians transported Peltz and J.K. to nearby
hospitals. Abdullah followed Peltz to continue his
investigation. Once at the hospital, a nurse informed
Abdullah that they would be drawing Peltz's blood for
medical purposes, and Abdullah requested a sample. Abdullah
waited in a common area by the nurses' station outside of
Peltz's room. As he did so, Abdullah overheard Peltz
talking on his cell phone. Peltz stated he had been leaving a
restaurant, where he consumed "a few alcoholic drinks,
" and he had been driving. Abdullah also heard Peltz
confirm to medical personnel that he had been drinking
Subsequent testing of Peltz's blood sample revealed a
.142 alcohol content. Officers discovered that the truck was
registered to Peltz and that J.K.'s driver license had
been suspended. J.K.'s injuries included a lacerated
spleen and fractures to her spine and eye socket.
A grand jury indicted Peltz for aggravated assault causing
serious physical injury to J.K. and aggravated assault of
J.K. using a deadly weapon or dangerous instrument (the motor
vehicle). As noted above, the jury convicted him of
lesser-included offenses for each charge: aggravated assault
causing temporary but substantial disfigurement and assault.
This appeal followed. We have jurisdiction pursuant to A.R.S.
§§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Peltz first argues "the prosecutor committed misconduct
by charging aggravated assault with 'serious physical
injury' without any reasonable belief that any injuries
were serious." Although Peltz alleged prosecutorial
misconduct in charging him below, it was for different
reasons than he now raises on appeal. Specifically, he argued
the prosecutor "fail[ed] to adequately investigate the
easy to determine status of [his] driving record" or to
present to the grand jury "clearly exculpatory evidence
. . . that showed a witness observed the vehicle leaving
[his] house with [J.K.] driving." See State v.
Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683 (App.
2008) (objection on one ground does not preserve issue on
another). Accordingly, he has forfeited review for all but
fundamental, prejudicial error. See State v.
Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d
601, 607 (2005). However, because Peltz has failed to argue
the alleged error was fundamental, he has waived review of
this issue. See State v. Moreno-Medrano, 218 Ariz.
349, ¶ 17, 185 P.3d 135, 140 (App. 2008); see also
State v. Fernandez, 216 Ariz. 545, ¶ 32,
169 P.3d 641, 650 (App. 2007) (appellate court will
not ignore fundamental error if found).
Even assuming the argument had not been waived, Peltz cannot
establish fundamental error on his claim of prosecutorial
misconduct. See Henderson, 210 Ariz. 561,
¶¶ 19-20, 115 P.3d at 607. The prosecutor has broad
discretion in deciding both whether to charge and which
charges to file against a defendant. State v.
Hankins, 141 Ariz. 217, 221, 686 P.2d 740, 744 (1984).
Courts will not interfere with that discretion unless the
prosecutor is acting illegally or in excess of his or her
powers. State v. Murphy, 113 Ariz. 416, 418,
555 P.2d 1110, 1112 (1976). Here, Peltz did not
argue that the prosecutor failed to make a fair and impartial
presentation in the final remand to the grand jury, see
id., and the grand jury independently determined that
there was probable cause to indict Peltz for aggravated
assault involving serious physical injury, see State v.
Coconino Cty. Superior Court, 139 Ariz. 422, 424, 678
P.2d 1386, 1388 (1984). The prosecutor did not engage in
misconduct by seeking an indictment on that charge.
for a Judgment of Acquittal
In a somewhat related argument, Peltz contends the trial
court erred by denying his motion for a judgment of
acquittal, pursuant to Rule 20, Ariz. R. Crim. P., on the
charge of aggravated assault causing serious physical injury
because the state presented insufficient evidence that
J.K.'s injuries were serious. However, because Peltz was
not convicted of this offense, the issue is moot. See
Pointe Resorts, Inc. v. Culbertson, 158 Ariz. 137,
140-41, 761 P.2d 1041, 1044-45 (1988) (under mootness
doctrine, court should not address issues that no longer
exist because of change in factual circumstances). To the
extent Peltz believes that, if his Rule 20 motion on the
original charge had been granted, the trial court could not
have instructed the jury on lesser-included offenses, he is
mistaken. See State ex rel. Thomas v.
Duncan, 216 Ariz. 260, n.7, 165 P.3d 238, 243 n
.7 (App. 2007) (noting that, even if judgment of acquittal
granted on charged offense, "lesser included offense
would still be applicable"); State v. Miranda,
198 Ariz. 426, ¶ 9, 10 P.3d 1213, 1215 (App. 2000)
(instruction on lesser-included offense proper if supported
The trial court did not, in any event, err in denying
Peltz's Rule 20 motion because there was substantial
evidence that J.K. had suffered a "serious physical
injury." See State v. West, 226 Ariz. 559,
¶¶ 15-16, 250 P.3d 1188, 1191 (2011). "[I]n
ruling on a Rule 20 motion, . . . a trial court may not
re-weigh the facts or disregard inferences that might
reasonably be drawn from the evidence." Id.
¶ 18. "[T]he relevant question is whether, after
viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the
essential elements of the crime beyond a reasonable
doubt." Id. ¶ 16, quoting State v.
Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990).
"When reasonable minds may differ on inferences drawn
from the facts, the case must be submitted to the jury, and
the trial judge has no discretion to enter a judgment of
acquittal." State v. Lee, 189 Ariz. 590, 603,
944 P.2d 1204, 1217 (1997).
The physician who admitted J.K. to the intensive care unit of
the hospital testified that, due to the accident, J.K. had
suffered a laceration to her spleen, which carried a risk of
internal bleeding, a burst fracture of her spine, and an
orbital fracture with bruising. He also explained that,
because J.K. was eighty-three years old, she was at a greater
risk for complications and was less likely to function at the
same level of pre-injury independence. Upon her discharge
from the hospital several days later, J.K. was placed in a
skilled nursing facility. A reasonable jury could have
concluded that J.K.'s injuries "create[d] a
reasonable risk of death" or "cause[d] serious and
permanent disfigurement, serious impairment of health or loss
or protracted impairment of the function of any bodily organ
or limb." A.R.S. § 13-105(39); see State v.
Mwandishi, 229 Ariz. 570, ¶ 8, 278 P.3d 912, 913