State v. Nelson

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ROGER NELSON, Appellant.
No. 1 CA-CR 14-0260
FILED 1-19-2016
Appeal from the Superior Court in Maricopa County
No. CR2011-145186-001
The Honorable John R. Ditsworth, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Terry Reid
Counsel for Appellant
STATE v. NELSON
Decision of the Court
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined.
K E S S L E R, Judge:
¶1 Roger Nelson filed this appeal in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
following his conviction of one count of leaving the scene of a damage
accident, one count of disorderly conduct, one count of armed robbery,
three counts of aggravated assault, and one count of attempted second
degree murder. Finding no arguable issues to raise, Nelson’s counsel
requested that this Court search the record for fundamental error. Nelson
was given the opportunity to, but did not submit a pro per supplemental
brief. For the reasons that follow, we affirm Nelson’s convictions and
sentences.
FACTUAL AND PROCEDURAL HISTORY
¶2 ND and his wife, CD, were leaving Arizona Mills Mall when
they saw another car speeding toward them, driving the wrong way on a
one-way street. The car hit a curb and crashed into a tree. A man, identified
as Nelson, exited the car and began walking quickly toward them. At
approximately ten feet from ND and his wife, Nelson pointed a small silver
handgun at their windshield. Nelson pointed the gun at them for fifteen to
thirty seconds before heading toward the mall. ND and CD called 911 to
report the incident to the police.
¶3 Officers arrived at the mall, aware that Nelson had left the
accident scene and was armed. Officer B. was walking through the parking
lot in the direction Nelson was described as heading, when a man abruptly
stopped his vehicle to tell him that Nelson had pointed a gun at him, and
then entered the mall. Officer B., with the help of additional officers, began
searching the mall for suspects.
¶4 Nelson had proceeded to Famous Footwear, where he
grabbed two boxes of shoes and walked over to the cash register. AM, a
Famous Footwear employee, testified that Nelson became visibly upset
when she asked him for his driver’s license or name in order to register him
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STATE v. NELSON
Decision of the Court
for rewards, and he pulled a small silver gun out from his shorts and
pointed it at her stomach. Nelson instructed AM to put the shoes in a bag,
and she complied. Nelson then took the bag of shoes and walked calmly
out of the store. The incident was recorded by a security camera, and AM
later identified Nelson once he was in custody.
¶5 Officer K. arrived on the scene and helped in conducting a
perimeter to keep the suspect detained in the area. He soon saw Nelson,
who fit the description of the suspect, and decided to stop and identify him.
Officer K. told Nelson he needed to talk to him, and stated he needed to pat
him down first to make sure he was not carrying any weapons. Officer K.
testified that Nelson became irritated, began to back away, and said “whoa,
whoa, I’m a citizen.” When Officer K. advanced, Nelson pointed the silver
handgun at the officer’s chest, and Officer K. reacted by grabbing the gun
and pushing it away. Nelson tried to swing the gun back toward Officer
K., repeatedly stating “I’m going to kill you.” The two struggled over the
gun. When the gun failed to fire, Officer K. wrestled with Nelson, gaining
possession of the weapon, which he tossed behind himself. Officer K. then
took a few steps back before subduing Nelson with a Taser. Nelson was
arrested and taken into custody.
¶6 Officer A. Mirandized1 and interviewed Nelson at the scene.
Nelson admitted to crashing his car into a tree, possessing a loaded gun,
and pointing the gun at both AM and Officer K.
¶7 Detective O. Mirandized and interviewed Nelson at three in
the morning the following day. During the interview, Nelson admitted that
he wrecked his grandfather’s car and was in possession of a loaded weapon.
He stated that after the accident he tried to stop a couple by pointing his
gun at them, and then ran into the mall to hide. Once inside the mall,
Nelson admitted to robbing Famous Footwear, but minimized the
encounter claiming he only showed AM the gun and tapped it on the
counter so she would know it was real. Nelson further admitted to waving
the gun around in the mall and trying to carjack a man in the parking lot by
trying to shoot out the vehicle’s window. When the gun did not fire, Nelson
took the magazine and chambered bullet out of the gun, cleaned it,
reinserted the magazine into the gun, and walked away. Finally, Nelson
admitted that he knew Officer K. was a uniformed police officer, that he
told Officer K. to back off or he would shoot him, and that he pointed the
gun at the officer’s chest.
1 Miranda v. Arizona, 384 U.S. 436 (1966).
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STATE v. NELSON
Decision of the Court
¶8 A criminalist with the Arizona Department of Public Safety
testified that the gun worked, but not well. He concluded the bullet failed
to fire during the struggle with Officer K. because the firing pin struck the
periphery, rather than the center of the primer.
¶9 Nelson was convicted of Count 1: Leaving the Scene of a
Damage Accident; Count 2: Disorderly Conduct; Count 3: Armed Robbery;
Count 4: Aggravated Assault; Count 5 Amended: Attempted Second
Degree Murder; Count 6: Aggravated Assault; and Count 7: Aggravated
Assault. Nelson was sentenced to a twenty-six year term of imprisonment2
and awarded 948 days of presentence incarceration credit.
¶10 Nelson timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, as well as Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and -
4033(A)(1) (2010).
STANDARD OF REVIEW
¶11 In an Anders appeal, this Court must review the entire record
for fundamental error. See State v. Banicki, 188 Ariz. 114, 117 (App. 1997).
Fundamental error is “error going to the foundation of the case, error that
takes from the defendant a right essential to his defense, and error of such
magnitude that the defendant could not possibly have received a fair trial.”
State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (quoting State v. Hunter,
142 Ariz. 88, 90 (1984)). To obtain a reversal, the defendant must also
demonstrate that the error caused prejudice. Id. at ¶ 20.
DISCUSSION
¶12 After careful review of the record, we find no grounds for
reversal of Nelson’s convictions or sentences. The record reflects Nelson
had a fair trial and all proceedings were conducted in accordance with the
Arizona Rules of Criminal Procedure. Nelson was present and represented
by counsel at all critical stages of trial, had the opportunity to speak at
sentencing, and the sentences imposed were within the range for Nelson’s
offenses.
2 Nelson was sentenced to one day for Count 1, three years for Count 2,
twenty-one years for Counts 3-5, and five years for Counts 6-7. Counts 1-5
were ordered to be served concurrently, with Counts 6-7 to be served upon
release from Counts 1-5.
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STATE v. NELSON
Decision of the Court
¶13 In reviewing the sufficiency of evidence at trial, “[w]e
construe the evidence in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.” State v. Greene,
192 Ariz. 431, 436, ¶ 12 (1998). “Reversible error based on insufficiency of
the evidence occurs only where there is a complete absence of probative
facts to support the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200 (1996)
(quoting State v. Scott, 113 Ariz. 423, 424-25 (1976)).
¶14 First, there is evidence in the record to support the jury’s
conviction of Nelson for the crime of leaving the scene of a damage
accident. Pursuant to A.R.S. § 28-662 (Supp. 2015), if after a vehicular
accident there is damage to a vehicle, the driver is required to stop or
immediately return to the scene of the accident, remain at the scene until all
legal requirements are fulfilled, and make the stop without obstructing
traffic. As explained above, two witnesses saw Nelson crash his car and
leave the scene, and Nelson admitted doing so during his interrogation. See
supra ¶¶ 2, 7. Based on the record, there is sufficient evidence to support
Nelson’s conviction of leaving the scene of a damage accident.
¶15 There is also sufficient evidence in the record to support the
jury’s conviction of Nelson for the crime of disorderly conduct. “A person
commits disorderly conduct if, with intent to disturb the peace or quiet of a
neighborhood, family or person, or with knowledge of doing so, such
person . . . [r]ecklessly handles, displays or discharges a deadly weapon or
dangerous instrument.” A.R.S. § 13-2904(A)(6) (2010). During his
interview with detectives, Nelson admitted to possessing a loaded gun, to
“waving it around like an idiot,” and that guns can be used as a tool to
terrify people with.
¶16 There is sufficient evidence in the record to support the jury’s
conviction of Nelson for the count of armed robbery. “A person commits
robbery if in the course of taking any property of another from his person
or immediate presence and against his will, such person threatens or uses
force against any person with intent either to coerce surrender of property
or to prevent resistance to such person taking or retaining property.” A.R.S.
§ 13-1902(A) (2010). A person commits armed robbery if, during the
commission of robbery, the person “[i]s armed with a deadly weapon or a
simulated deadly weapon . . . .” A.R.S. § 13-1904(A)(1) (2010). As discussed
above, the evidence of Nelson’s use of his handgun to steal two pairs of
shoes from Famous Footwear is sufficient to prove armed robbery. See
supra ¶ 4, 7.
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STATE v. NELSON
Decision of the Court
¶17 There is sufficient evidence in the record to support the jury’s
conviction of Nelson for the count of aggravated assault as to Officer K. “A
person commits assault by . . . [i]ntentionally placing another person in
reasonable apprehension of imminent physical injury.” A.R.S. § 13-
1203(A)(3) (2010). “A person commits aggravated assault . . . [i]f the person
uses a deadly weapon or dangerous instrument,” A.R.S. § 13-1204(A)(2)
(Supp. 2015), or “commits the assault knowing or having reason to know
that the victim is . . . [a] peace officer, or a person summoned and directed
by the officer while engaged in the execution of any official duties or if the
assault results from the execution of the peace officer’s official duties,”
A.R.S. § 13-1204(A)(8)(a). There was testimony that Nelson possessed a
loaded weapon, that he knew Officer K. was a police officer, that he told
Officer K. to back off or he would shoot him, and that he pointed the gun at
Officer K.’s chest. Officer K. further testified that while Nelson was pointing
the gun at him, he thought he was going to die.
¶18 There is sufficient evidence in the record to support the jury’s
conviction of Nelson for attempted second degree murder. A person
commits attempted second degree murder if he intentionally does
anything, which under the circumstances as the person believes them to be,
is a step in a course of conduct planned to culminate in the intentional death
of another person. A.R.S. §§ 13-1001 (2010) (attempt), 13-1104 (2010)
(second degree murder). The evidence of aggravated assault as to Officer
K. is also sufficient to prove all the elements of attempted second degree
murder. There was further testimony that there were two indentations on
the primer of the gun’s bullet indicating that the trigger had been pulled
twice, and the bullet failed to fire because the firing pin struck the periphery
rather than the center of the primer. Because Nelson admitted to trying to
carjack a man in the parking lot by trying to shoot out the vehicle’s window,
the jury could infer that the second indentation on the bullet occurred when
Nelson and Officer K. were struggling for control over the weapon.
¶19 Finally, there is sufficient evidence in the record to support
the jury’s conviction of Nelson for two counts of aggravated assault as to
ND and CD. “A person commits assault by . . . [i]ntentionally placing
another person in reasonable apprehension of imminent physical injury,”
A.R.S. § 13-1203, and “[a] person commits aggravated assault . . . [i]f the
person uses a deadly weapon or dangerous instrument,” A.R.S. § 13-
1204(A)(2). Here, ND and CD both testified that Nelson pointed a gun at
them and they feared for their lives. See supra ¶ 2. In addition, during the
interrogation, Nelson admitted that after the accident he tried to stop a
couple by pointing his gun at them before running into the mall to hide.
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STATE v. NELSON
Decision of the Court
¶20 In comparing the evidence in the record to the elements listed
in the statutes, we find there was sufficient evidence to support the jury’s
conviction of Nelson for leaving the scene of a damage accident, disorderly
conduct, armed robbery, three counts of aggravated assault, and attempted
second degree murder.
CONCLUSION
¶21 For the foregoing reasons, we affirm Nelson’s convictions and
sentences. Upon the filing of this decision, defense counsel shall inform
Nelson of the status of his appeal and his future appellate options. Defense
counsel has no further obligations, unless, upon review, counsel finds an
issue appropriate for submission to the Arizona Supreme Court by petition
for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Upon the
Court’s own motion, Nelson shall have thirty days from the date of this
decision to proceed, if he so desires, with a pro per motion for
reconsideration or petition for review.
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