State v. Stutler

THE STATE OF ARIZONA, Appellee, v. DONALD JAMES STUTLER, Appellant.

No. 2 CA-CR 2015-0110

ARIZONA COURT OF APPEALS DIVISION TWO

February 4, 2016

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.

Appeal from the superior Court in Pima County

No. CR20140818001

The Honorable Richard D. Nichols, Judge

AFFIRMED AS CORRECTED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Amy M. Thorson, Assistant Attorney General, Tucson

Counsel for Appellee

Brad Roach, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Judge Miller authored the decision of the Court, in which Presiding Judge Vásquez and Chief Judge Eckerstrom concurred.

MILLER, Judge:

¶1 A jury found Donald Stutler guilty of aggravated assault, domestic violence, a nondangerous offense, for which the trial court sentenced him to a one-year term of imprisonment. He argues the court erred by denying his motions for a judgment of acquittal and for a new trial under Rules 20 and 24.1, Ariz. R. Crim. P., because there was insufficient evidence to support his conviction and to sentence him as a repetitive offender. Finding no error, we affirm.

Facts and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the jury's verdict. State v. Carlson, 237 Ariz. 381, n.1, 351 P.3d 1079, 1085 n.1 (2015). In January 2014, as S.B. was exiting her vehicle in front of her house, Stutler, the father of her baby, approached her in an upset manner. He was angry that she continued to nurse the infant and threatened to remove the child from her. She was holding the baby in a carrier and Stutler snatched the carrier from her. She followed him and screamed for him to stop, and he yelled at her to "shut up, shut up, bitch," so that the neighbors would not overhear and call the police. He grabbed her by covering her nose and mouth with one hand and squeezing her throat with the other hand such that she was unable to breathe. He eventually let her go.

¶3 S.B. retrieved the baby carrier and tried to leave. Stutler came up from behind her and lifted her up, trying to get her to go into the house. He again covered her nose and mouth with his hand and screamed at her to shut up. She planted her feet on a step andpushed back against him, causing herself and the baby in the carrier to fall down.

¶4 Over the next half-hour, the situation calmed down. Stutler and S.B. drove to a nearby gas station to get gas. Later, back at the house, a sheriff's deputy arrived to investigate because a neighbor who witnessed the incident on the driveway had called 9-1-1. S.B. talked to the deputy, telling him that "everything was okay" because she was "afraid of what would happen" if she told the truth. She was in Stutler's line of sight throughout the interview. Later, she phoned the officer, indicating that "she would say anything that she had to[,] to get out of [the] relationship" if the deputy would return to the house. S.B. explained that by this statement, she meant she "was ready to tell them what had happened and what [Stutler] had done." However, lacking any new information warranting further investigation, the deputy did not return to the house. At about 3:00 or 4:00 a.m. the next morning, S.B. slipped out of the house while Stutler was asleep, drove to the police station, and told police what had happened.

¶5 Stutler was charged with one count of aggravated assault, domestic violence, a class four felony, and was convicted after a jury trial. The court sentenced him, as a category one repetitive offender, to a mitigated, one-year prison term. He now appeals. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A).

Motion for Judgment of Acquittal

¶6 Stutler contends the trial court erred by denying his pre- and post-verdict motions for a judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P., in which he challenged the sufficiency of the evidence. We review de novo a claim of insufficient evidence. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). The relevant question is whether the record contains "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).

¶7 A person commits aggravated assault as an act of domestic violence if he intentionally, knowingly, or recklessly causes physical injury, by "intentionally or knowingly imped[ing] the normal breathing or circulation of blood of another person by applying pressure to the throat or neck or by obstructing the nose and mouth," A.R.S. § 13-1204(B)(1), and the victim is a person with whom he has "a child in common," A.R.S. § 13-3601(A)(2). S.B. testified that Stutler squeezed her throat with one hand and covered her nose and mouth with his other hand, impeding her normal breathing. Evidence of knowing or intentional mens rea included his statements to S.B. that she had to "shut up" while he was simultaneously covering her mouth in a deliberate effort to silence her. See A.R.S. § 13-105(10)(a)-(b) (defining "intentionally" and "knowingly"). A rational jury could have found that Stutler's actions caused S.B. physical injury, including the bruises and scratches she testified she incurred during the struggle over the baby carrier, which were visible in photographic exhibits admitted at trial. There also was sufficient evidence supporting the domestic violence component. See A.R.S. § 13-1204(B)(2). S.B. testified she had a child in common with Stutler, as described in A.R.S. § 13-3601(A)(2). Reasonable persons could accept this evidence as sufficient to establish every element of the charged offense beyond a reasonable doubt.

¶8 Stutler acknowledges that the uncorroborated testimony of a crime victim can alone be sufficient to sustain a conviction, unless it describes events that are physically impossible or is so incredible that no reasonable person could believe it, see State v. Munoz, 114 Ariz. 466, 469, 561 P.2d 1238, 1241 (App. 1976), but he contends S.B.'s testimony was too incredible for any reasonable person to believe. He argues that her willingness to "say anything," contrasted with her failure to report the assault to police until many hours later, demonstrate that her "inconsistencies rendered it impossible to reasonably conclude that it supported proof beyond a reasonable doubt." We disagree. A reasonable jury could have believed her testimony, concluding she told police what really happened the next morning at the police station because it was the first time she felt safe to do so. And a reasonable jury could havebelieved that when she said she would say anything to leave the relationship, she meant that she was ready to tell the deputy the truth, as she explained on the stand. "When reasonable minds may differ on inferences drawn from the facts, the case must be submitted to the jury, and the trial judge has no discretion to enter a judgment of acquittal." State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997).

¶9 Assuming, for the purpose of addressing Stutler's argument that S.B.'s testimony was insufficient, another eyewitness, J.S., substantially corroborated that testimony. J.S. testified that on the day in question he saw Stutler put his hands around S.B.'s throat and "chok[e]" her on the driveway of their house. He also observed a baby in a baby carrier nearby. The trial court did not err in denying Stutler's Rule 20 motions.

Motion for New Trial

¶10 Stutler contends the trial court erred by denying his motion for a new trial pursuant to Rule 24.1(c)(1), Ariz. R. Crim. P., which argued the verdict was contrary to the weight of the evidence. We review a trial court's denial of a motion for a new trial for an abuse of discretion. State v. Neal, 143 Ariz. 93, 97, 692 P.2d 272, 276 (1984).

¶11 In denying Stutler's motion, the trial court explained:

The Court will state on the record that it was somewhat surprised by the verdict of guilty, but nevertheless finds that the verdict was not contrary to the weight of the evidence. The trier of fact simply chose to believe the victim and the witness even though there was ample opportunity to impeach them with inconsistencies [and] every other means available, so the motion for a new trial is denied as well.

Stutler argues this statement shows that the judge failed to act as a "so-called thirteenth juror" in ruling on the motion, as he contends was required by Peak v. Acuna, 203 Ariz. 83, ¶ 9, 50 P.3d 833, 835 (2002). Peak is inapposite because it was limited to whether the double jeopardy clause bars retrial after a motion for a new trial has been granted based on insufficient evidence. Id. ¶ 7. Moreover, we recently observed that the thirteenth-juror language "overstates the judge's role" when considering the sufficiency of the evidence. State v. Fischer, 238 Ariz. 309, ¶ 19, 360 P.3d 105, 110 (App. 2015). In view of a defendant's right to a jury trial, the trial judge "may not set aside a verdict 'merely because, if he had acted as trier of fact, he would have reached a different result,' nor may he substitute his own judgment for that of the jury." Id. ¶¶ 19-22, quoting Cano v. Neill, 12 Ariz. App. 562, 569, 473 P.2d 487, 494 (1970). Even if the court harbors "serious doubts" about the jury's resolution of conflicts in the evidence, it still must exercise "great caution" before granting a motion for a new trial and may only interfere with the verdict if it is "'quite clear that the jury has reached a seriously erroneous result'" and a new trial is necessary to prevent a "'miscarriage of justice.'" Id. ¶¶ 21-22, quoting Cano, 12 Ariz. App. at 569, 473 P.2d at 494. In fact, if "'no mistake of law or fact was made and . . . the evidence fully sustains the...