Opinion
2 CA-CR 2023-0058
10-05-2023
The State of Arizona, Appellee, v. David P. Word, Appellant.
Rosemary Gordon Panuco, Tucson Counsel for Appellant
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CR202102130 The Honorable Daniel A. Washburn, Judge
Rosemary Gordon Panuco, Tucson Counsel for Appellant
Vice Chief Judge Staring authored the decision of the Court, in which Judge Sklar and Judge Brearcliffe concurred.
MEMORANDUM DECISION
STARING, VICE CHIEF JUDGE
¶1 Appellant David Word was found guilty of aggravated assault and threatening or intimidating. The trial court suspended the imposition of sentence and placed him on three years' probation.
There was a jury trial on both offenses, but the jury could not reach a verdict on the charge of threatening or intimidating. The parties later agreed the trial court could render a verdict for that offense based on the evidence presented at the jury trial. See Derendal v. Griffith, 209 Ariz. 416, ¶¶ 36-37 (2005) (establishing two-step analysis for eligibility for jury trials of misdemeanor offenses).
¶2 On appeal, counsel has filed a brief pursuant to Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530 (App. 1999), asserting she has reviewed the record and was "unable to find any unresolved non-frivolous issue to raise." Counsel has, nevertheless, identified two issues she suggests "might arguably support the appeal": a misnumbered verdict form and the trial court's rendering of a verdict based on evidence presented during a jury trial. Anders, 386 U.S. at 744. Consistent with Clark, 196 Ariz. 530, ¶ 30, counsel has provided "a detailed factual and procedural history of the case, with citations to the record," and has asked this court to search the record for reversible error.
¶3 As a preliminary matter, we lack jurisdiction to review the trial court's verdict for threatening or intimidating. Pursuant to A.R.S. § 13-4033(A)(1), a defendant may appeal a "final judgment of conviction." Although the court pronounced Word guilty of the offense in December 2022, it failed to include threatening or intimidating in its judgment pursuant to Rule 26.10, Ariz. R. Crim. P. See Ariz. R. Crim. P. 26.10(a) ("In pronouncing judgment on any noncapital count, the court must indicate whether the defendant's conviction is pursuant to a plea or trial, the offense for which the defendant was convicted, and whether the offense falls in the categories of dangerous, non-dangerous, repetitive, or non-repetitive offenses."). The court did not mention that offense at sentencing, and only the aggravated assault conviction is listed in the sentencing minute entry.Because there has been no entry of judgment, we do not have jurisdiction. See State v. Perez, 172 Ariz. 290, 292 (App. 1992).
Although the sentencing minute entry indicates that the trial court granted the state's motion to dismiss "any remaining counts contained in the Indictment," the state does not appear to have made any such motion. The indictment listed only one count of aggravated assault and one count of threatening or intimidating. Moreover, although the trial court did not orally mention the aggravated assault conviction, its classification, or that it was entered pursuant to a trial, technical violations of Rule 26.10 do not necessarily prejudice the defendant. See State v. Maddasion, 24 Ariz.App. 492, 496 (1975). In this case, we fail to see how Word was prejudiced. The details required under Rule 26.10(a) were included in the sentencing minute entry. Both Word and his counsel were given an opportunity to address the court before it rendered the sentence. See Lee v. State, 27 Ariz. 52, 67 (1924) (purpose of requiring court to discuss nature of conviction is to accord defendant final opportunity to address sentence). And Word did not raise this issue below or on appeal. See State v. Hanson, 138 Ariz. 296, 304 (App. 1983) ("The lack of ambiguity in the court's action is indicated by the fact that this issue was not raised by anyone present at the sentencing ....").
¶4 Turning to Word's aggravated assault conviction, we view the evidence in the light most favorable to affirming the jury's verdict. See State v. Holle, 240 Ariz. 300, ¶ 2 (2016). The evidence was sufficient here. See A.R.S. §§ 13-1203(A)(2), 13-1204(A)(8)(a). In October 2021, officers responded to Word's neighborhood after he had an altercation with a neighbor. A uniformed deputy found Word aggressively walking down the street with what appeared to be a club. Despite repeated requests, Word refused to stop or drop the weapon, tried to push past the deputy, and raised the club-which was later determined to be a sheathed bayonet- above his head before the deputy-who feared Word was going to club him-used his taser to stop Word.
¶5 The term of probation is within the statutory range. See A.R.S. §§ 13-901, 13-902(A)(4), 13-1204(F). We have reviewed the arguments counsel identified in her opening brief and have concluded neither are arguable issues requiring further briefing. See State v. Thompson, 229 Ariz. 43, ¶ 3 (App. 2012) ("In Arizona, we do not require defense counsel to list non-meritorious arguments in an Anders brief to alert us to issues that 'might arguably support the appeal.'" (quoting Anders, 386 U.S. at 744)).
¶6 Pursuant to our obligation under Anders, we have searched the record for reversible error and have found none. See State v. Fuller, 143 Ariz. 571, 575 (1985). Accordingly, we affirm Word's conviction for aggravated assault and term of probation. However, we dismiss Word's attempt to appeal from the finding of guilt for threatening or intimidating.