State v. Johnson ( 2019 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
GARY JOHNSON, JR., Appellant.
No. 1 CA-CR 18-0380
FILED 2-5-2019
Appeal from the Superior Court in Maricopa County
No. CR 2016-149433-001
The Honorable Michael D. Gordon, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
The Hopkins Law Office PC, Tucson
By Cedric M. Hopkins
Counsel for Appellant
STATE v. JOHNSON
Decision of the Court
MEMORANDUM DECISION
Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge James P. Beene and Judge James B. Morse Jr. joined.
B R O W N, Judge:
¶1 This appeal is presented to us pursuant to Anders v. California,
386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969). Defense counsel
has searched the record on appeal and advised us there are no meritorious
grounds for reversal. Defendant Gary Johnson was given the opportunity
to file a supplemental brief but did not do so. Our obligation is to review
the entire record for reversible error, State v. Clark, 196 Ariz. 530, 537, ¶ 30
(App. 1999), viewing the evidence in the light most favorable to sustaining
the conviction and resolving all reasonable inferences against Johnson, State
v. Guerra, 161 Ariz. 289, 293 (1989).
¶2 A grand jury indicted Johnson for (1) aggravated assault, a
class 5 felony; (2) indecent exposure, a class 6 felony; and (3) indecent
exposure, a class 1 misdemeanor. Count one required proof that Johnson
committed an assault while “knowing or having reason to know that the
victim [was] . . . a peace officer.” Ariz. Rev. Stat. (“A.R.S.”)
§ 13-1204(A)(8)(a); see also A.R.S. § 13-1203(A)(2) (defining assault as
“[i]ntentionally placing another person in a reasonable apprehension of
imminent physical injury”). Counts two and three required proof that
Johnson exposed his genitals while another person was present and “was
reckless about whether the other person, as a reasonable person, would be
offended or alarmed by the act.” A.R.S. § 13-1402(A). Count two also
required a finding that the victim was under the age of 15. A.R.S. § 13-
1402(C). The following evidence was presented at trial.
¶3 On October 17, 2016, A.T. was driving her elderly mother to
an office. S.V., A.T.’s then nine-year-old daughter, was riding in the
backseat of the car. A.T. saw Johnson when she stopped at an intersection
and looked to her right. Johnson made eye contact with A.T. as he rolled
the top of his shorts down, exposing his penis. S.V. also witnessed Johnson
rolling his shorts down and it made her “uncomfortable,” although she
could not remember seeing “anything when he actually pulled them
down.” A.T. drove away and her mother, who did not see Johnson’s act,
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STATE v. JOHNSON
Decision of the Court
had the office call the police. When police arrived, Johnson was no longer
in the area and could not be located.
¶4 The next day, A.T. saw Johnson and called the police again.
Officer D.M. responded to her call; when he arrived, A.T. informed him
about the incident and identified Johnson as he left a store. D.M. attempted
to approach Johnson in his marked patrol car, but Johnson evaded his
approach by zig-zagging across the road numerous times. Eventually,
D.M., who was wearing his police uniform, tried to stop Johnson by exiting
his patrol vehicle, sticking his arm out to block Johnson from walking past
him, and saying “Hey, I need to talk to you.” Johnson responded by telling
D.M. not to touch him and attempted to walk past him again. D.M. grabbed
Johnson in an attempt to stop him. Johnson became violent, grabbing the
inside of D.M.’s vest, striking his chest, and struggling with D.M. into the
south lanes of a busy road. Once in the road, D.M. separated himself from
Johnson and deployed his Taser twice. D.M. testified that he felt
“endangered” during this encounter because of “the struggling, traffic, . . .
and fear for weapons or things that I could not see under [Johnson’s] belt
or . . . shirt.”
¶5 The jury found Johnson guilty as charged. At sentencing, the
court placed Johnson on supervised probation for 3 years as to count one,
10 years as to count two, and 3 years as to count three.1 Johnson timely
appealed.
¶6 After a thorough review of the record, we find no reversible
error. Clark, 196 Ariz. at 541, ¶ 50. The record reflects Johnson was
represented by counsel at all critical stages of the proceedings.2 The
evidence presented supports the convictions, and the suspended sentences
fall within the range permitted by law. As far as the record reveals, these
proceedings were conducted in compliance with the Arizona Rules of
Criminal Procedure and Johnson’s constitutional and statutory rights.
Therefore, we affirm Johnson’s convictions and the resulting probationary
terms.
1 The State sought sex offender registration as a condition of probation
for count two, but the court deferred ruling on that issue for one year.
2 Johnson waived his presence at many pretrial proceedings by
refusing transport, see Ariz. R. Crim. P. 9.1, and forfeited his right to be
present during much of the trial proceedings by engaging in disruptive
conduct, see Ariz. R. Crim. P. 9.2.
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STATE v. JOHNSON
Decision of the Court
¶7 Unless defense counsel finds an issue that may be
appropriately submitted to the Arizona Supreme Court, his obligations are
fulfilled once he informs Johnson of the appeal’s outcome and his future
options. State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Johnson has 30 days
from the date of this decision to proceed, if he wishes, with a pro per motion
for reconsideration or petition for review.
AMY M. WOOD • Clerk of the Court
FILED: AA
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