Opinion
2 CA-CR 2021-0121
12-21-2022
The State of Arizona, Appellee, v. Robert Dayton Reid, Appellant.
Mark Brnovich, Arizona Attorney General Alice Jones, Acting Deputy Solicitor General/Chief of Criminal Appeals By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee Megan Page, Pima County Public Defender By Michael J. Miller, Assistant Public Defender, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pima County No. CR20211308 The Honorable Catherine M. Woods, Judge
Mark Brnovich, Arizona Attorney General Alice Jones, Acting Deputy Solicitor General/Chief of Criminal Appeals By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee
Megan Page, Pima County Public Defender By Michael J. Miller, Assistant Public Defender, Tucson Counsel for Appellant
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Eppich and Vice Chief Judge Staring concurred.
MEMORANDUM DECISION
BREARCLIFFE, JUDGE
¶1 Appellant Robert Reid appeals his conviction and sentence for aggravated assault with a deadly weapon or dangerous instrument. Reid contends that there was insufficient evidence he committed aggravated assault and that the trial court abused its discretion by admitting Reid's post-arrest statements as evidence at trial. For the following reasons, we affirm.
Factual and Procedural Background
¶2 "On appeal, we view the facts in the light most favorable to upholding the verdict and resolve all inferences against the defendant." State v. Klokic, 219 Ariz. 241, n.1 (App. 2008). On April 12, 2021, A.S. was walking near the intersection of I-10 and Valencia Road, pulling a wagon with her belongings and her dog in it, when she passed Reid. A.S. testified that she had not spoken to Reid, but when she passed him, he "yelled at [her]" and said that "he was going to kill [her] and [her] dog." A.S. continued to walk away, and Reid got up and followed her.
¶3 A.S. crossed the street, and Reid continued to follow her. When Reid caught up to A.S., he "came at [her] with [a] knife," and told her "he was going to slice [her] and [her] dog's throat." Reid reached toward A.S.'s wagon, and she believed he was reaching for her dog, so she "tapped his hand with [her] baseball bat." At that point, Reid "backed up," and A.S. testified that she had grabbed her dog and wagon and left in the opposite direction.
¶4 Multiple people witnessed the incident and called 9-1-1. A sheriff's deputy was the first law enforcement officer to arrive. The deputy was directed toward a bridge where someone said Reid had gone.
¶5 The deputy found two men under the bridge, identified himself, and said he was looking for a man who had been chasing a woman with a knife. Reid told the deputy that he had been "with a woman just recently," and "freely admitted that he was involved in the incident" the deputy was investigating. The deputy detained him and removed a knife that Reid had on him. Officers from Tucson Police Department arrived and took over the investigation.
¶6 When an officer and a detective spoke with Reid, he claimed he had used the knife in self-defense, telling the officer that a man with A.S. had punched him in the jaw, then telling the detective that A.S.'s boyfriend had hit him in the head with a bike chain. Reid had no injuries, and no witness saw anyone other than Reid and A.S. Reid acknowledged to the detective "that he possibly had crossed the street toward [A.S.]." After Reid was in custody, he made post-Miranda statements, including that he was "going to shove [his] knife in [A.S.'s] God damn throat" and that "he was going to break [A.S.'s] nose when he gets out."
¶7 Reid was indicted on one count of aggravated assault with a deadly weapon or dangerous instrument. Following a four-day jury trial, Reid was convicted and sentenced to a "slightly mitigated" term of six years imprisonment. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Analysis
Sufficiency of the Evidence
¶8 Reid argues that there was insufficient evidence to support a conviction of aggravated assault with a deadly weapon. We review whether evidence is sufficient to support a conviction de novo. State v. Denson, 241 Ariz. 6, ¶ 17 (App. 2016).
¶9 Evidence is insufficient if there is no substantial evidence presented to support a conviction. State v. Rodriguez, 251 Ariz. 90, ¶ 16 (App. 2021). "Substantial evidence is more than a mere scintilla and is such proof that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." Id. (quoting State v. Mathers, 165 Ariz. 64, 67 (1990)). Evidence is considered sufficient even if "reasonable minds can differ on inferences to be drawn therefrom." Id. (quoting State v. Landrigan, 176 Ariz. 1, 4 (1993)). The evidence supporting a conviction may be direct or circumstantial. Denson, 241 Ariz. 6, ¶ 17. The sufficiency of the evidence is tested against the "statutorily required elements of the offense." State v. Pena, 209 Ariz. 503, ¶ 8 (App. 2005).
¶10 At the close of the state's case, Reid brought a motion for judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P. He claimed the state had failed to prove beyond a reasonable doubt that A.S. was placed in reasonable apprehension of death or serious physical injury. The trial court denied the motion, relying on evidence that Reid had "aggressively followed] after . . . [A.S.] who was screaming trying to get people's attention, calling for help, and telling [Reid] to get away." It also cited A.S.'s testimony that Reid had been following her with a knife and had threatened her and her dog, as well as A.S.'s statement "that she was scared for herself and her dog's safety."
¶11 On appeal, Reid argues that there was insufficient evidence that he "intentionally placed [A.S.] in imminent apprehension of physical harm with the use of his knife while they were walking across the street." Reid argues that, at most, "the evidence showed that Reid reached towards her dog with the hand carrying the knife," but, because that occurred once they had crossed the street, it was not part of the act the state was charging. We disagree.
After Reid asked the trial court to order the state to elect a unit of prosecution, the state elected to prosecute Reid having followed A.S. across the street as the aggravated assault, not the interaction that occurred once the two had reached the other side of the street.
¶12 We determine sufficiency by testing the evidence against the elements of the offense. See Pena, 209 Ariz. 503, ¶ 8. Under A.R.S. §§ 13-1203 and 13-1204, as relevant here, one commits aggravated assault by "[intentionally placing another person in reasonable apprehension of imminent physical injury," while using a deadly weapon or dangerous instrument. §§ 13-1203(A)(2), 13-1204(A)(2). Reid does not dispute that there was sufficient evidence to show he used a deadly weapon or dangerous instrument (the knife), nor does he argue absence of the intent required in § 13-1203(A)(2). Reid only argues that evidence was insufficient to show A.S. reasonably apprehended imminent physical injury. Reid claims that, because he was twenty feet behind A.S. and was walking, not running, and because no evidence showed "that he had ever swung his knife at [A.S.]," there was insufficient evidence to prove A.S. was "in imminent apprehension of physical harm with the use of [Reid's] knife while they were walking across the street."
¶13 Regardless of the speed or distance at which Reid followed A.S. across the street, testimony from witnesses and the victim established that A.S. had a reasonable apprehension of imminent physical harm. At trial, multiple witnesses testified that they had seen a woman walking across traffic looking "frantic" and yelling for help and for the man to get away. They saw a man following her, holding a knife, and looking "angry." Furthermore, A.S. testified that she had been scared for her and her dog's safety. Evidence of how far Reid was behind A.S. and the speed at which he followed her are facts to be weighed and considered by the jury, not by the trial court or this court. See State v. Fuentes, 247 Ariz. 516 , ¶ 38 (App. 2019). And the mere fact that Reid presented evidence in support of the defense does not render contrary evidence presented by the state insufficient to support a conviction. See State v. Garfield, 208 Ariz. 275, ¶ 9 (App. 2004). Reasonable persons could accept the evidence as that of aggravated assault with a dangerous weapon. We cannot say, therefore, that the evidence here was insufficient to support a conviction.
Post-Arrest Statements
¶14 Reid, as he did below, also argues that the trial court erred by admitting his post-arrest statements to the police as "other act" evidence under Rule 404, Ariz. R. Evid. In its response, the state argues that "as the court found, the statements were admissible pursuant to . . . [Rule] 404(b)." "We review a trial court's ruling on the admissibility of evidence for an abuse of discretion." State v. Slover, 220 Ariz. 239, ¶ 15 (App. 2009).
¶15 Before trial, Reid filed a motion in limine to preclude, among other evidence, the following statement he had made post-arrest about A.S.: "Next time I see her, I'm gonna shove my knife down her goddamn throat." In his motion, Reid argued this statement was irrelevant and, even if it were relevant, its probative value was substantially outweighed by the danger of unfair prejudice and should be precluded. He also argued that the statement was improper other-act evidence and therefore did "not fall within an exception under Rule 404(b)(2)[, Ariz. R. Evid.]" In response, the state argued that the statement was relevant and went "to [Reid's] state of mind for the crime that is currently being investigated." It further claimed that the statement's probative value was not substantially outweighed by any prejudice to Reid. And it asserted that the statement was not improper other-act evidence because it was evidence of the current crime and went toward "his state of mind for this particular incident."
This was the only statement Reid sought to preclude in his motion in limine. Reid also made a statement to another officer, saying he would break A.S.'s nose "when he gets out." It is unclear whether Reid objected to testimony about that statement at trial; in a later objection, it appears he was arguing only that testimony as to his demeanor was inadmissible, not the statement about breaking A.S.'s nose. Even if Reid had objected to that statement below, thereby preserving the argument on appeal, he does not appear to argue in his opening brief that that statement was erroneously admitted. Because we will not address arguments not made on appeal, we only address Reid's argument as to the statement regarding the knife. See State v. Moody, 208 Ariz. 424, n.9 (2004).
Reid and the state agree that the trial court erred to the extent it determined the statements were intrinsic evidence. Evidence is intrinsic if it directly proves the charged act, or if it "directly facilitate[d] commission of the charged act." State v. Ferrero, 229 Ariz. 239, ¶ 20 (2012). Although we agree that Reid's statements are not intrinsic evidence, the court's decision was legally correct for the reasons discussed herein, and we therefore do not need to address this issue. See State v. Herrera, 232 Ariz. 536, ¶ 17 (App. 2013) ("[T]his court will affirm a trial court's ruling if the result is correct for any reason.").
¶16 Following oral arguments on the first day of trial, and contrary to both side's characterization of its ruling, the trial court concluded that the post-arrest statement was not a crime, wrong, or act "within the meaning of Rule 404," and therefore was not precluded by Rule 404. The court also determined that the statement was "relevant to things such as motive, opportunity, intent, absence of mistake or accident" and that such relevance was not "substantially outweighed by the danger of unfair prejudice." Despite the court concluding that his statements, including the one at issue on appeal, were "not 'other crimes, wrongs or acts'" at all under Rule 404(b), Reid first argues that his statements were not admitted for a proper purpose under Rule 404(b). The state, for its part in response, similarly presupposes that Rule 404 applies, although arguing that the admission of the statement was proper. Rule 404(b)(1) prohibits evidence of "other crimes, wrongs, or acts . . . to prove the character of a person in order to show action in conformity therewith." We agree with the court that these statements are not Rule 404(b) other-act evidence. See State v. Huerstel, 206 Ariz. 93, ¶ 69 (2003) (defendant's statement of intent to commit crime is not conduct for purposes of Rule 404(b)). Because the statements here are not Rule 404(b) other-act evidence, the court only had to find relevance and absence of unfair prejudice. See State v. Togar, 248 Ariz. 567, ¶¶ 19, 22 (App. 2020) (evidence that is not other-act evidence is evaluated for relevance and prejudice).
¶17 Reid alternatively argues that his statements were irrelevant and that any probative value they had was substantially outweighed by the danger of unfair prejudice. We disagree. Relevant evidence-that is, evidence that "has any tendency to make a fact more or less probable," and is "of consequence in determining the action" - is admissible. Ariz. R. Evid. 401 & 402. Attitudes of aggression threatening violence - such as Reid's statements made about A.S. - are relevant to motive and intent. See State v. Williams, 183 Ariz. 368, 377 (1995) (prior acts of aggression toward victim's property are proper evidence of motive and intent because they show animosity toward victim); see also State v. Lee, 25 Ariz.App. 220, 228 (1975) ("Intent may be established by subsequent acts because . . . similar results do not usually occur through abnormal causes and . . . a recurrence of a particular act similarly tends to negate accident, inadvertence or other innocent mental state."). And whether made before or after the attack, they can nonetheless evidence Reid's intent to make A.S. reasonably apprehensive of imminent physical injury. See State v. May, 137 Ariz. 183, 188 (App. 1983) (subsequent threats "could be reasonably construed to reflect a continuing attitude on appellant's part to keep his wife in a state of fear of imminent physical injury").
¶18 Reid argues that, because he also made a statement that he would break A.S.'s nose, the statements "did not show that he had intent to use the knife." His statements, however, reasonably show an intent to place A.S. in reasonable apprehension of imminent physical injury; even if such injury is caused by other means. Therefore, Reid's post-arrest statement was relevant. And, in Reid's own words, albeit in the context of his Rule 404(b) argument on appeal, "[p]ost arrest emotional outbursts may have 'some tendency' to prove intent . . . which is a proper purpose." The trial court concluded that Reid's statements were relevant to "motive, opportunity, intent, [and] absence of mistake or accident." We cannot say the court erred in doing so.
¶19 Nonetheless, Reid argues that because this statement was made an hour or more after he was arrested, it more likely evidences his frustration at being arrested, rather than his intent at the time of the incident. However, any import as to the timing of his statement goes toward its weight, rather than its admissibility; such matters are subject to argument of counsel and are left to the jury as to the most reasonable inferences to be drawn from it. See State v. Jeffers, 135 Ariz. 404, 418 (1983) (" [T]he length of time is a factor to be considered by the jury in determining the weight of the evidence."); see also State v. Atwood, 171 Ariz. 576, 638 (1992) ("[W]e have consistently held that the remoteness of such statements is a factor going to the weight of the evidence, not its admissibility."). We will not reweigh evidence on appeal. Fuentes, 247 Ariz. 516, ¶ 38.
¶20 Nonetheless, relevant evidence may still be inadmissible "if its probative value is substantially outweighed by a danger of . . . unfair prejudice." Ariz. R. Evid. 403. Reid finally argues that, even if the statement was relevant, it was inadmissible under Rule 403. He claims that the statement here has "little probative value" and that it both "unfairly prejudice[ed] the jury against [him]" and "carried a great danger that the jury would render a decision based on emotion or sympathy for [A.S.]." We disagree.
¶21 For evidence to be unfairly prejudicial, it must have an "'undue tendency to suggest a decision on an improper basis' . . . such as emotion, sympathy or horror." State v. Schurz, 176 Ariz. 46, 52 (1993) (quoting Fed.R.Evid. 403) (emphasis added). We do not see how this statement would have an undue tendency - especially given its probative value in showing motive and intent- to create such sympathy for A.S. as to influence the jury's verdict.
¶22 Regardless, even if the trial court had erred in admitting this evidence, any error in admissibility of his post-arrest statements is subject to harmless error review. See State v. Anthony, 218 Ariz. 439, ¶ 38 (2008) (when potential error is preserved on appeal, it is subject to harmless error review). An error "is harmless if we can say, beyond a reasonable doubt, that the error did not contribute to or affect the verdict." Id. ¶ 39 (quoting State v. Bible, 175 Ariz. 549, 588 (1993)). Here, the state presented several witnesses stating they had seen Reid following A.S. across the street with a knife. A.S. also testified that Reid had followed her across the street with a knife and that she had been scared for her and her dog's safety. Evidence was also presented that Reid had been found with a knife and that he had admitted he was involved. Considering the amount of evidence and testimony presented against Reid, even if the post-arrest statement were entered erroneously, such an error did not contribute to the verdict against Reid and thus was harmless.
Disposition
¶23 For the foregoing reasons, we affirm Reid's conviction and sentence.