Opinion
No. 1 CA-CR 13-0678
09-23-2014
STATE OF ARIZONA, Appellee, v. JEREMIAH DOUGLAS WROCK, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Colby Mills Counsel for Appellee Law Offices of Neal W. Bassett, Phoenix By Neal W. Bassett Counsel for Appellant
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
No. CR2011-153303-001
The Honorable Christine E. Mulleneaux, Commissioner
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Colby Mills
Counsel for Appellee
Law Offices of Neal W. Bassett, Phoenix
By Neal W. Bassett
Counsel for Appellant
MEMORANDUM DECISION
Judge Donn Kessler delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Kent E. Cattani joined. KESSLER, Judge:
¶1 Jeremiah Wrock ("Defendant") appeals his conviction and resulting sentence for disorderly conduct. He argues insufficient evidence supports his conviction, and he contends the trial court improperly permitted a police officer to testify that Defendant was guilty of the offense. Defendant also challenges the constitutionality of our supreme court's administrative order that he asserts requires imposition of an application fee for e-filing in this Court.
BACKGROUND
We review the facts in the light most favorable to sustaining the verdict. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
¶2 At approximately 4:15 a.m., TG was standing on a public sidewalk taking a cigarette break from his job when he heard "the cycling action of a 12-gauge shotgun." TG observed the silhouette of Defendant standing on a lit condominium patio across the street holding a pump-action shotgun and heard Defendant "rack" the weapon again. While facing TG, Defendant raised the shotgun and waived it. Feeling threatened and afraid he would be shot, TG returned to work, and Defendant yelled, "Yeah, that's right." TG reported the incident to Detective MD, who was working in an off-duty capacity, assisting the security at TG's workplace with an unrelated situation.
According to trial testimony, "[t]he racking action of a shotgun . . . [indicates] a round [has been put] into the chamber of that weapon to use."
¶3 After speaking to TG, Detective MD proceeded outside to investigate and observed Defendant standing in the patio area of the condominium unit holding a pump-action shotgun. Detective MD radioed for assistance from local law enforcement.
¶4 Scottsdale police arrived at the scene and made contact with Defendant. Defendant was "belligerent, . . . refus[ed] to come out," and said "[t]hings to the effect of f[] you, go away, this is my property, leave me alone." An officer employed his Taser to subdue Defendant, and Defendant was arrested.
¶5 The State charged Defendant with disorderly conduct, a class 6 felony, and alleged the offense was dangerous based on Defendant's threatening exhibition of the shotgun. The jury found Defendant guilty as charged, and the court imposed a mitigated one-and-a-half year prison term. This timely appeal followed, and we have jurisdiction under Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2003), 13-4031 (2010), and -4033(A)(1) (2010).
DISCUSSION
I. Sufficiency of Evidence
¶6 Defendant first argues insufficient evidence supports his conviction. Our review of the sufficiency of evidence is limited to whether substantial evidence exists to support the verdict. State v. Scott, 177 Ariz. 131, 138, 865 P.2d 792, 799 (1993); see also Ariz. R. Crim. P. 20(a) (directing courts to enter judgment of acquittal "if there is no substantial evidence to warrant a conviction."). Substantial evidence is such proof that "reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980)). When addressing a sufficiency of evidence argument, "[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, 967 P.2d 106, 111 (1998). We "draw all reasonable inferences that support the verdict," State v. Fulminante, 193 Ariz. 485, 494, ¶ 27, 975 P.2d 75, 84 (1999), and we resolve any conflict in the evidence in favor of sustaining the verdict, State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). We will reverse only if a complete absence of probative facts supports the conviction. State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976).
¶7 "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).
¶8 Defendant argues the trial evidence is insufficient to show his conduct vis-à-vis TG was reckless primarily because no testimony was presented that Defendant actually pointed the shotgun at anyone. Defendant also contends there was no evidence that the item he handled or displayed was a deadly weapon. As for the latter contention, Defendant points to examples of TG's and Detective MD's testimony where they purportedly equivocated at the time of the incident as to whether Defendant was handling a real shotgun as opposed to a toy one.
¶9 We are not persuaded. First, TG testified that Defendant racked and waived a shotgun in his direction and threateningly yelled, "Yeah, that's right" when TG left the scene to return to work. This evidence reasonably infers Defendant intentionally handled and displayed the shotgun in order to threaten TG. Accordingly, the evidence necessarily supports a conclusion Defendant recklessly handled the firearm. See A.R.S. § 13-202(C) (2010) ("If acting recklessly suffices to establish an element, that element also is established if a person acts intentionally or knowingly."). And Defendant points to no authority that requires pointing a firearm at a victim to constitute reckless handling of the weapon in the context of a disorderly conduct conviction. Cf. State v. Bur dick, 211 Ariz. 583, 584, ¶¶ 2-3, 125 P.3d 1039, 1040 (App. 2005) (affirming convictions on four counts of disorderly conduct when defendant removed a gun from his pocket, waved it in the direction of the victims and began banging on and shaking apartment door).
¶10 Second, although Detective MD testified he could not positively ascertain whether Defendant was holding a "real" shotgun or a toy, he affirmed that the weapon appeared real, and Detective MD further stated he would have shot Defendant had Defendant pointed the shotgun at him. Detective MD also testified that a toy weapon does not make a metallic sound like a real shotgun does when it is racked. TG testified he knew Defendant was holding a real pump-action shotgun based on the sound the firearm made when Defendant racked it twice. Considering Detective MD's and TG's testimony together, substantial evidence establishes Defendant handled and displayed a real firearm to threaten TG. See State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995) (noting the finder-of-fact, not the appellate court, weighs the evidence and determines the credibility of witnesses). Accordingly, Defendant's insufficiency of evidence claim fails. II. Officer D's Testimony
TG testified he was a former police officer and had been trained and certified to use pump-action shotguns.
¶11 Defendant asserts Officer D, who was involved in confronting and arresting Defendant, improperly testified that Defendant was guilty of disorderly conduct. We disagree.
¶12 After defense counsel cross-examined Officer D, a juror posed the following question: "Is it against the law in Scottsdale to have a firearm on one's person on their own property?" Defense counsel requested the question be presented to Officer D, and the court did so over the State's objection. The following exchange then transpired:
THE WITNESS: It's kind of a double edged question, but, no.
THE COURT: Any follow-up questions by either counsel?
[PROSECUTOR]: Yes, Judge.
THE COURT: You may.
FURTHER EXAMINATION
[PROSECUTOR]:
Q. So, it's legal to possess a weapon on your own property?
A. If you have the right to do so, yes.
Q. Okay. And what if you take acts beyond simply holding a gun on your own property?
A. Then it becomes illegal.
Q. So, if -- if looking at somebody and racking the shotgun, would that be legal?
A. No.
Q. Okay. Waving it up in the air and yelling, "[Y]eah, that's right," would that be legal?
A. No.
Q. In your training and experience, have you had situations where there is about to be a fight and somebody displays a firearm?
A. Yes.
Q. Okay. Is that legal?
A. No.
Q. So, merely holding a gun on your property is fine?
A. Correct.
Q. But when you take additional steps beyond that, it can be illegal?
A. Yes.
[PROSECUTOR]: I have nothing further.
THE COURT: Any follow-up questions by defense?
[DEFENSE COUNSEL]: No.
¶13 Defendant characterizes this testimony as Officer D's "legal conclusion" and "ultimate opinion" regarding Defendant's guilt of the charged offense. Although Defendant properly points out that testimony regarding a belief in a criminal defendant's guilt is generally inadmissible, the challenged testimony here does not reflect Officer D's belief in Defendant's guilt of disorderly conduct. Instead, the testimony clarified Officer D's answer to the juror's question regarding the general legality of possessing a firearm on one's property, a topic defense counsel affirmatively requested. Thus, no error occurred.
See, e.g., State v. Williams, 133 Ariz. 220, 227-28, 650 P.2d 1202, 1209-10 (1982).
Based on this conclusion, we do not address—as the State affirmatively posits—whether Defendant invited the "error."
¶14 In any event, even if we concluded Officer D's testimony did improperly amount to an opinion regarding Defendant's guilt, defense counsel's lack of an objection to the State's follow-up questions would restrict our review to one for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (failure to object to alleged trial error results in fundamental error review). Defendant does not argue on appeal that the court committed fundamental error in failing sua sponte to take some corrective action; thus, Defendant has waived such an argument and we will not address it. See State v. Moreno-Medrano, 218 Ariz. 349, 354, ¶¶ 16-17, 185 P.3d 135, 140 (App. 2008) (declining to review for fundamental error when appellant failed to raise claim in trial court and failed on appeal to address whether alleged error was fundamental); see also State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989) (holding that the "failure to argue a claim usually constitutes abandonment and waiver of that claim" (citations omitted)). III. Constitutionality of AZTurboCourt Fee
¶15 Finally, Defendant challenges the Arizona Supreme Court's Administrative Order 2012-2 ("Administrative Order"), which he claims unlawfully imposes an AZTurboCourt filing fee on all defendants who appeal their criminal cases to this court. He requests that this court refund the application fee.
"'AZTurboCourt' means the Supreme Court-approved, Internet-based system for filing of documents in the trial and appellate courts of Arizona." Administrative Order at § 1.b (available at http://www.azcourts.gov/Portals/22/admorder/ordersl2/2012-02.pdf). The Administrative Order requires "all attorneys . . . to e-file documents through AZTurboCourt when filing into the Arizona Supreme Court and the Court of Appeals, Division One." Id.
Defendant bases his argument on Article 2, Section 24, of the Arizona Constitution, which states, in relevant part: "In criminal prosecutions, the accused shall have the right to . . . appeal in all cases; and in no instance shall any accused person before final judgment be compelled to advance money or fees to secure the rights herein guaranteed." Defendant also alludes to A.R.S. § 22-372 (2013), which reads:
A. Execution of the sentence shall not be stayed unless the defendant executes a bond with sureties, in an amount fixed by a justice of the peace or municipal judge of the court in which the judgment was rendered and files the bond with the court. The bond shall be approved by the justice of the peace or municipal judge.
B. The condition of the bond shall be that the defendant prosecute the appeal and pay any fine and surrender to proper authorities in execution of any imprisonment imposed by the superior court on the appeal.
¶16 We summarily reject this argument because the Administrative Order specifically exempts from e-filing those appellants, among others, who can show "good cause." Administrative Order at § 3(b), (e) ("Self-represented litigants may, but are not required to, file documents through AZTurboCourt. . . . Documents not excepted from e-filing as set forth in this section must be filed through AZTurboCourt unless an exception is granted by the Court for good cause shown."). "Good cause" includes indigence. See Tahtinen v. Superior Court, Pinal Cnty., 130 Ariz. 513, 515, 637 P.2d 723, 725 (1981) ("Filing fees must be waived when an indigent prisoner seeks to file either an appeal from his or her conviction or a habeas corpus petition concerning the reason for incarceration.").
¶17 Nothing in the record indicates Defendant requested an exception to e-filing in this court for good cause because he is indigent or for any other reason. We therefore infer Defendant waived his right to do so, and he is precluded from challenging the constitutionality of the Administrative Order. See State v. Lefevre, 193 Ariz. 385, 389, 972 P.2d 1021, 1025 (App. 1998) ("To possess standing to assert a constitutional challenge, Defendant must have suffered some threatened or actual injury from the alleged constitutional infirmity.").
CONCLUSION
¶18 Defendant's conviction and sentence are affirmed.