State v. Brabham ( 2014 )

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
TERRY JUNIOR LYNELL BRABHAM, JR., Appellant.
No. 1 CA-CR 13-0217
FILED 09-25-2014
Appeal from the Superior Court in Maricopa County
No. CR2011-115294-002
The Honorable Robert L. Gottsfield, Judge
AFFIRMED AS MODIFIED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Andrew Reilly
Counsel for Appellee
Janelle A. McEachern, Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
STATE v. BRABHAM
Decision of the Court
MEMORANDUM DECISION
Judge Andrew W. Gould delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Samuel A. Thumma
joined.
G O U L D, Judge:
¶1 Terry Junior Lynell Brabham, Jr. (“Brabham”) appeals his
convictions for aggravated assault and drive-by shooting on the grounds
there is insufficient evidence to support his convictions. For the reasons
discussed below, we affirm Brabham’s convictions, and also affirm his
sentences as modified.
DISCUSSION
¶2 “We review the sufficiency of the evidence presented at trial
only to determine if substantial evidence exists to support” the verdict.
State v. Stroud, 209 Ariz. 410, 411, ¶ 6, 103 P.3d 912, 913 (2005). “Substantial
evidence is proof that reasonable persons could accept as sufficient to
support a conclusion of a defendant’s guilt beyond a reasonable doubt.”
State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996). Substantial
evidence required for a conviction may be either circumstantial or direct.
State v. Pena, 209 Ariz. 503, 505, ¶ 7, 104 P.3d 873, 875 (App. 2005). We view
the evidence “in the light most favorable to sustaining the jury verdict, and
resolve all inferences against” the defendant. Stroud, 209 Ariz. at 411, ¶ 6,
103 P.3d at 913.
¶3 A defendant commits the crime of drive-by shooting by
“intentionally discharging a weapon from a motor vehicle at a person,
another occupied motor vehicle or an occupied structure.” Ariz. Rev. Stat.
(“A.R.S.”) § 13-1209(A) (West 2014).1 As applicable here, the crime of
aggravated assault required the State to prove Brabham intentionally,
knowingly, or recklessly caused any physical injury to another using a
deadly weapon or dangerous instrument. A.R.S. §§ 13-1203(A)(1) and
-1204(A)(2).
1 We cite to the current version of the applicable statutes in this
decision, unless revisions material to this decision have since occurred.
2
STATE v. BRABHAM
Decision of the Court
¶4 Our review of the record shows there is substantial evidence
supporting Brabham’s convictions for drive-by shooting and aggravated
assault. Shortly before the shooting, a confrontation occurred between the
victim and Brabham as the victim left his apartment complex. Brabham,
while sitting in the front passenger seat of the vehicle, threatened the victim
by flashing a gang sign and stating, “What’s up, blood?” Brabham’s vehicle
then followed the victim as he walked along Central Avenue.
¶5 Immediately prior to the shooting, the victim observed
Brabham sitting in the front passenger seat of the vehicle. The victim then
saw shots being fired from the passenger side of the vehicle. The victim
attempted to run, but was struck in the back by a bullet.
¶6 The vehicle then drove away, was pursued by law
enforcement, and ultimately crashed during the pursuit. Brabham fled the
vehicle on foot. Officers subsequently found Brabham hiding in a nearby
vacant lot.
¶7 After his arrest, Brabham was present when officers discussed
their intention to test him for gunshot residue (“GSR”). Brabham then spit
on his hand in an apparent attempt to conceal any gunshot residue. Despite
Brabham’s efforts at concealment, the GSR tests were “highly specific,” and
showed that Brabham had either discharged a weapon, was in the vicinity
when a weapon was discharged, or handled an item that had GSR on it.
¶8 Officers later searched Brabham’s vehicle and found two
firearms and a bullet on the passenger side floorboard. One of the guns, an
Uzi, was loaded and had a bullet in the chamber of the gun. Brabham
admitted to owning the Uzi and placing it on the floor next to where he was
sitting.
¶9 Based on the evidence in this case, a reasonable juror could
have concluded that Brabham was guilty of aggravated assault and drive-
by shooting. Accordingly, we find no error.
DNA Testing Fee
¶10 The trial court also ordered Brabham to submit to DNA
testing and to “pay the applicable fee for the cost of that testing in
accordance with A.R.S. § 13-610.” This court recently held that A.R.S. § 13-
610 does not require a convicted defendant to pay for the costs of his DNA
testing. State v. Reyes, 232 Ariz. 468, 472, ¶¶ 11-13, 307 P.3d 35, 39 (App.
2013). We therefore vacate the order requiring Brabham to pay for the cost
of DNA testing.
3
STATE v. BRABHAM
Decision of the Court
CONCLUSION
¶11 For the foregoing reasons, we affirm Brabham’s convictions.
We also affirm Brabham’s sentences as modified.
:gsh
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