Opinion
No. 1 CA-CR 17-0389
06-05-2018
STATE OF ARIZONA, Appellee, v. JASON DOUGLAS NIEDERMEYER, Appellant.
COUNSEL Nicole Countryman, Attorney at Law, Phoenix By Nicole T. Countryman Counsel for Appellant Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee
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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Yavapai County
No. P1300CR201500885
The Honorable Tina R. Ainley, Judge
AFFIRMED
COUNSEL Nicole Countryman, Attorney at Law, Phoenix
By Nicole T. Countryman
Counsel for Appellant Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge Randall M. Howe and Judge Kenton D. Jones joined. MORSE, Judge:
¶1 Jason Douglas Niedermeyer appeals his conviction and sentence for one count of aggravated assault, a class three dangerous felony. After searching the entire record, Niedermeyer's defense counsel identified no arguable question of law. Therefore, in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), defense counsel asks this court to search the record for fundamental error. Niedermeyer filed a supplemental brief in propria persona in which he asserts that the superior court erred in admitting certain evidence and in sentencing. Finding no reversible error, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 On July 9, 2015, Niedermeyer and his father fired guns at the victim, a volunteer with the Yavapai County Sheriff's Office. The victim had entered property on which Niedermeyer and his father resided when Niedermeyer's father fired multiple times, hit the victim once in the hip, and caused serious injuries. The victim retreated to his patrol vehicle and fled the property. After the victim began to drive away, Niedermeyer discharged at least one shot in the direction of the victim. Law enforcement officers later returned in force and Niedermeyer surrendered to police without incident.
"We view the facts in the light most favorable to sustaining the convictions with all reasonable inferences resolved against the defendant." State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citation omitted).
¶3 Niedermeyer was indicted on 10 felony counts and pled not guilty to the charges. Prior to trial, the State voluntarily dismissed all but three counts: (1) attempted first degree murder; (2) aggravated assault causing injury to a law enforcement officer; and (3) aggravated assault with a deadly weapon. Trial began on March 30, 2017, and concluded on April 14, 2017. After the State rested, the trial court granted Niedermeyer's motion under Ariz. R. Crim. P. 20 and dismissed the count involving aggravated assault causing injury to a law enforcement officer because the evidence showed that Niedermeyer's father had caused the injury.
¶4 The defense presented its case, which included testimony from Niedermeyer about his relationship with his father and his father's sovereign-citizen beliefs. During his testimony, Niedermeyer admitted that he had fired a gun during the incident with the victim but claimed that he only fired the gun because he was afraid of his father. Further, Niedermeyer told the jury he intentionally "shot to miss" the victim and did not fire until the victim had returned to his car and was driving away. Niedermeyer admitted, however, that the victim heard the shots fired and was in apprehension because of the gunfire.
¶5 The jury found Niedermeyer not guilty of attempted first-degree murder and guilty of aggravated assault with a deadly weapon. During his testimony, Niedermeyer admitted that he had previously been convicted in Yavapai County Superior Court of felony burglary with a date of offense of June 29, 2009, and felony theft of a firearm with a date of offense of June 24, 2009. He also admitted that he had absconded from probation for those convictions. After trial, Niedermeyer further waived a jury and admitted that he was on release from a separate Coconino County felony prosecution when he committed this offense.
¶6 On May 15, 2017, the court sentenced Niedermeyer for aggravated assault with two historical prior felony convictions and imposed a sentence of 15 years flat time in the Department of Corrections.
DISCUSSION
¶7 In his supplemental brief, Niedermeyer raises five challenges to the proceedings in the superior court. First, he argues that he did not have two historical prior felony convictions because his prior convictions resulted from a single plea agreement and were not dangerous offenses. Niedermeyer is incorrect about the characterization of his prior convictions. Because there were separate dates of offense for each conviction, they count as separate historical prior convictions. See Ariz. Rev. Stat. ("A.R.S.") §§ 13-105(22), 13-703(L). Moreover, the trial court did not sentence Niedermeyer using the sentencing range applicable for two historical prior dangerous convictions under A.R.S. § 13-704(E). Instead, the court used the lower sentencing range applicable for two non-dangerous historical prior convictions under A.R.S. § 13-703(J). There was no error. See State v. Trujillo, 227 Ariz. 314, 321, ¶¶ 30-33 (App. 2011).
¶8 Second, Niedermeyer claims that he should not have been convicted for aggravated assault, because that count had been dismissed before trial began. Niedermeyer is mistaken—neither the trial court nor the State dismissed the count of aggravated assault with a deadly weapon. The offense of conviction was originally indicted as count 11. At a hearing in February 2017, the court granted Niedermeyer's motion to dismiss the "peace officer allegation" for count 11. After the peace officer allegation was dismissed, count 11 remained but was now reduced to a class three felony. Compare A.R.S. §§ 13-1204(E) (aggravated assault with a deadly weapon is a class three felony) with 13-1204(F) (aggravated assault with a deadly weapon committed on a peace officer is a class two felony). Subsequently, the State dismissed many of the remaining counts, but did not dismiss count 11, which was renumbered as count 3 for trial.
¶9 Niedermeyer's third complaint is that the State violated a court order when it asked a witness about Niedermeyer's involvement in a prior confrontation with law enforcement. We have reviewed the transcript of the questioned testimony and fail to see any violation of the court's orders regarding the challenged testimony. However, even if there were a violation, Niedermeyer is not entitled to relief because there was no objection and certainly no fundamental error that impacted "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) (quotation marks omitted).
¶10 Fourth, Niedermeyer argues that he did not place the victim in reasonable apprehension by shooting at the victim, because "[i]t is probable the victim placed himself in apprehension" by pursuing Niedermeyer onto the property. This argument is frivolous. See State v. Clark, 196 Ariz. 530, 539, ¶¶ 39-40 (App. 1999) (rejecting claims raised in pro per appeal that are meritless considering the record below). Regardless of what the victim may have done before the shooting, Niedermeyer admitted during his testimony that he fired his gun after his father had already shot the victim and the victim was trying to drive away.
¶11 In his final claim, Niedermeyer asserts that evidence introduced at trial was "contaminated" because witness testimony about the evidence conflicted with law enforcement reports about how the evidence was obtained. Any claim of a conflict between the testimony and the reports is insufficient to merit any relief. See State v. McCray, 218 Ariz. 252, 257, ¶ 15 (2008) (finding that when testimony about the collection of fluid samples "was incomplete or conflicted with testimony by other witnesses, these concerns go to the weight rather than the admissibility of the evidence"). Moreover, there was no objection and certainly no fundamental error.
Niedermeyer also attached a copy of a document entitled "INTERNATIONAL REPORT ON TRAFFICKING OF PERSONS AND HUMAN TRAFFICKING BY THE UNITED STATES" to his brief and claims that the document is newly discovered evidence "relevant to [his] liberty." The document purports to be issued by "The office of the Secretary of State" of "The Government of The United States of America," and asserts that the United States of America is a private "Federal Corporation" that does not have authority to levy taxes. Niedermeyer fails to cite legal authority to explain how the document has any bearing on an aggravated assault prosecution by the State of Arizona. Accordingly, whatever argument he is trying to make has been waived and we will not address it. See State v. Nirschel, 155 Ariz. 206, 208 (1987) (emphasizing that each contention by the appellant must be supported by legal authority in the opening brief); see also Cullum v. Cullum, 215 Ariz. 352, 355 n.5, ¶ 14 (App. 2007) (noting that appellate courts "will not consider arguments posited without authority."). --------
¶12 In addition to evaluating the arguments raised in Niedermeyer's supplemental brief, we have conducted an independent review of the record. Our review also reveals no fundamental error. See Leon, 104 Ariz. at 300 ("An exhaustive search of the record has failed to produce any prejudicial error."). The proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure. The record reveals that Niedermeyer was represented by counsel and present at all critical stages of the proceedings. See State v. Conner, 163 Ariz. 97, 104 (1990) (right to counsel at critical stages); State v. Bohn, 116 Ariz. at 500, 503 (1977) (right to be present at critical stages). The jury was properly comprised of twelve jurors and the record shows no evidence of juror misconduct. See A.R.S. § 21-102(A); Ariz. R. Crim. P. 18.1. The trial court properly granted in part, and rejected in part, Niedermeyer's motion for a directed verdict of acquittal, see Ariz. R. Crim. P. 20(a)(1), and instructed the jury on the elements of the charged offenses, the State's burden of proof, the necessity of a unanimous verdict, and the presumption of innocence. The trial court properly found Niedermeyer's prior convictions, probation and release status based on his admissions, and imposed an appropriate sentence within the statutory limits. See A.R.S. §§ 13-703(J), 13-708(A) and (D).
CONCLUSION
¶13 Niedermeyer's conviction and sentence are affirmed. Defense counsel's obligations pertaining to Niedermeyer's representation in this appeal have ended. Defense counsel need do no more than inform Niedermeyer of the outcome of this appeal and his future options, unless, upon review, counsel finds an issue appropriate to submit to our supreme court for further review. State v. Shattuck, 140 Ariz. 582, 584-85 (1984).
¶14 Niedermeyer has thirty days from the date of this decision to proceed, if he wishes, with an in propria persona motion for reconsideration or petition for review.