State v. Rothrock

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JOHN DAVID ROTHROCK, Appellant.

No. 1 CA-CR 19-0388
FILED 11-12-2020

Appeal from the Superior Court in Maricopa County
No. CR2016-137374-001
The Honorable Dewain D. Fox, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Gracynthia Claw
Counsel for Appellee

Debus & Kazan Ltd, Phoenix
By Lawrence I. Kazan, Gregory M. Zamora
Counsel for Appellant
 STATE v. ROTHROCK
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MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge James B. Morse Jr. and Judge Maria Elena Cruz joined.

M c M U R D I E, Judge:

¶1 John David Rothrock appeals his convictions and sentences
for five counts of aggravated assault, seven counts of disorderly conduct,
two counts of discharging a firearm in the city limits, and unlawful flight
from law enforcement. He argues the superior court erred by precluding
his proffered expert’s testimony. Rothrock further challenges the
sufficiency of the evidence supporting his disorderly conduct convictions
and claims his sentences for aggravated assault were improperly
aggravated. For the following reasons, we affirm.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 Lieutenant Wallace2 turned left in his marked patrol vehicle
when Rothrock approached the intersection in his truck and fired two
gunshots in the air. Wallace stopped, exited his vehicle, and commanded
Rothrock to drop his weapon. Rothrock yelled, “You’re going to have to kill
me,” and drove off. Wallace followed Rothrock for several miles as
Rothrock disobeyed traffic signals. The pursuit continued along an urban
street “packed with cars, bikes, [and] people” where Rothrock crossed the
center line and nearly drove into a bicycle patrol officer. Rothrock then
almost collided head-on with a police truck carrying five officers.

¶3 By that point, multiple police vehicles joined the chase, which
continued over thirty miles through the Phoenix metro area. After
numerous failed attempts to stop Rothrock’s vehicle, officers successfully
deployed “stop sticks” and punctured Rothrock’s tires. Rothrock then

1 We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against the defendant. State v.
Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).

2 To avoid identifying the victims of criminal activity, we refer to them
with pseudonyms.

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exchanged gunfire with officers before losing control of his vehicle and
stopping. Rothrock exited the vehicle and continued shooting at officers
until Officer Richards returned fire, forcing Rothrock to dive back into his
truck. Officer Smith then “tased” Rothrock, temporarily incapacitating him
and ending the pursuit.

¶4 The State charged Rothrock with six counts each of
aggravated assault with a deadly weapon or dangerous instrument (Counts
1 through 6) and disorderly conduct (Counts 8 through 13), all dangerous
offenses; two counts of unlawful discharge of a firearm (Counts 7 and 15),
both dangerous offenses; and one count of unlawful flight from law
enforcement (Count 14). The jury returned guilty verdicts on all counts.3 As
aggravating circumstances for four aggravated-assault convictions (Counts
2 through 5), the jury found the offenses involved the threatened infliction
of serious physical injury. The court imposed concurrent prison terms, the
longest being 15 years. Rothrock timely appealed, and we have jurisdiction
under Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1),
13-4031, and -4033(A)(1).

DISCUSSION

A. The Superior Court Did Not Abuse Its Discretion by Precluding
Rothrock’s Expert Witness.

¶5 Before the trial, the State successfully precluded Rothrock
from raising a defense of “attempted suicide by cop” through his proposed
expert witness, Dr. Blackwood. Rothrock argues the superior court erred by
precluding the evidence, which he claims denied him the opportunity to
present a complete defense. We review for an abuse of discretion. State v.
Salazar–Mercado, 234 Ariz. 590, 594, ¶ 13 (2014).

¶6 Recognizing that evidence of a defendant’s diminished
capacity is inadmissible to negate the mens rea element of an offense,
Rothrock contends he proffered Dr. Blackwood’s opinion “not to show that
he was incapable of forming mens rea, but to establish that he had an
alternative objective in mind[,] . . . to kill himself.” See State v. Leteve, 237
Ariz. 516, 524, ¶ 21 (2015) (“‘[C]apacity evidence’ which concerns a
defendant’s ‘capacity to form mens rea,’ . . . [is] prohibited by Arizona

3 For Count 6, the jurors were unable to reach a verdict on the charged
offense but found Rothrock guilty of disorderly conduct as a lesser offense
of aggravated assault.

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law.”); State v. Mott, 187 Ariz. 536, 541 (1997) (“Because the legislature has
not provided for a diminished capacity defense, we have since consistently
refused to allow psychiatric testimony to negate specific intent.”).

¶7 Rothrock’s distinction does not persuade us. Contrary to his
argument, the record shows Rothrock intended Dr. Blackwood’s testimony
that Rothrock “had an alternative objective in mind” to impermissibly
“negate” the mens rea element of the charged offenses. As Rothrock’s
counsel explained at oral argument on the State’s motion to preclude:

So, the whole point here is this, my client’s suicidal intentions
undermine what he’s charged with in terms of – he’s required
to have certain intents for the aggravated assault charges. The
State’s charged him with intentionally placing these officers
in fear of imminent harm.

Well, our defense is that that wasn’t his intention; that his
intention was he wanted to commit suicide, and he wanted to
be left alone to do that, and whatever he did was ancillary to
the police.

So, we’re not using – we’re not saying he attempted suicide
and that justified his behavior. We’re saying that his ideas of
what he was trying to do means that he didn’t have the intent
required to commit the crimes the State has accused him of.

So, I – it’s not an inappropriate defense. I mean, the State is
obligated to prove these intents beyond a reasonable doubt,
and we certainly can take the position that our client did not have
the intent, and that his intent was something else, which was his
ideas about suicide.

(Emphasis added.)

¶8 The trial evidence, however, allowed Rothrock to argue that
he intended suicide, not the criminal conduct as alleged. And he did so,
albeit unsuccessfully. But Dr. Blackwood’s proposed testimony opining
that Rothrock’s mental-health crisis caused his inability to develop criminal
intent was improper. The superior court, therefore, did not abuse its
discretion by precluding Dr. Blackwood’s anticipated testimony.

¶9 Rothrock also argues Dr. Blackwood’s testimony was
admissible to establish his character trait for impulsiveness. Relying on

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State v. Christensen, 129 Ariz. 32 (1981), Rothrock contends his impulsivity
was relevant to the charged offenses.

¶10 Christensen is inapposite. In that first-degree murder case, our
supreme court concluded that the defendant’s general impulsiveness was
admissible to rebut evidence of premeditation. Christensen, 129 Ariz. at 35.
Here, none of the charged offenses required proof of premeditation; thus,
Rothrock’s impulsivity was not at issue. See State v. Buot, 232 Ariz. 432, 436,
¶ 18 (App. 2013) (“[W]e do not understand Christensen to require a court to
admit character trait evidence of impulsivity to prove a defendant did not
act knowingly or recklessly for purposes of second-degree murder.”); see
also A.R.S. § 13-502(A) (“impulse control disorder[]” is not a “mental
disease or defect” that may constitute an affirmative defense).

¶11 Finally, Rothrock claims the superior court’s “sanction” of
preclusion was improper because he timely disclosed Dr. Blackwood. We
summarily reject this argument. The court did not preclude Dr.
Blackwood’s testimony as a sanction for violating Arizona Rule of Criminal
Procedure 15.7. Instead, the court correctly precluded the evidence because
it was otherwise inadmissible.

B. The Jurors Had Sufficient Evidence to Convict Rothrock of
Disorderly Conduct.

¶12 Rothrock raises two arguments challenging his convictions on
the five counts of disorderly conduct (Counts 8 through 12) relating to the
police officers in the truck he nearly hit as he drove into oncoming traffic.
The convictions required proof that Rothrock, “with intent to disturb the
peace or quiet of a . . . person, or with knowledge of doing
so, . . . [r]ecklessly handle[d] . . . [a] dangerous instrument.” A.R.S.
§ 13-2904(A)(6).

¶13 Rothrock acknowledges that a jury may consider whether a
motor vehicle constitutes a “dangerous instrument” for purposes of A.R.S.
§ 13-2904. See State v. Venegas, 137 Ariz. 171, 175 (App. 1983) (concluding
the defendant’s “particular use of the automobile made the automobile a
dangerous instrument” for purposes of satisfying the statutory definition
of “dangerous instrument”). Focusing on the term “handles” in the statute,
he argues that, although someone can drive a vehicle, the act of driving
requires hands and feet. Thus, a vehicle cannot be “handled.” According to
Rothrock, the legislature intended the statute to apply only to “dangerous
instruments that are capable of being managed or held by the hands,
including a gun, a knife, an ax, a taser, a pipe[], or a prosthetic device.” See

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State v. Schaffer, 202 Ariz. 592, 596, ¶ 19 (App. 2002) (concluding a
defendant’s prosthetic arm may be considered a “dangerous instrument”
for purposes of charging aggravated assault). We review issues of statutory
interpretation de novo. State v. Peek, 219 Ariz. 182, 183, ¶ 6 (2008).

¶14 Rothrock’s argument is without merit. “Handling” a motor
vehicle is a widely accepted idiom for “driving” one. More specifically, the
term is used to describe a vehicle’s performance. As a popular online
encyclopedia explains:

Automobile handling and vehicle handling are descriptions
of the way a wheeled vehicle responds and reacts to the
inputs of a driver, as well as how it moves along a track or
road. It is commonly judged by how a vehicle performs
particularly during cornering, acceleration, and braking as
well as on the vehicle’s directional stability when moving in
steady state condition.

Automobile Handling, Wikipedia,
https://en.wikipedia.org/wiki/Automobile handling (last visited
November 5, 2020); see also Mac Morrison, Ten of the Best-Handling Cars on
Earth for 2020, Automobile (Oct. 31, 2019),
https://www.automobilemag.com/news/best-handling-cars/; Hasten v.
State, 35 Ariz. 427, 431 (1929) (discussing the public policy of deterring
driving under the influence and mentioning a driver’s “ability to handle
[automobiles]”).

¶15 Based on this commonly understood meaning of “to handle”
used in connection with a motor vehicle as its object, we conclude the
legislature intended to include driving a motor vehicle within the class of
potentially criminal conduct prohibited by the phrase “handling a
dangerous instrument” in A.R.S. § 13-2904(A)(6). See State v. Cotton, 197
Ariz. 584, 586, ¶ 6 (App. 2000) (courts should give words in a statute their
ordinary common meaning unless the legislature has clearly expressed an
intent to provide a term special meaning). Rothrock does not otherwise
challenge the evidence showing he drove his truck in a manner and under
circumstances that rendered it a dangerous instrument. See Schaffer, 202
Ariz. at 596, ¶ 17 (based on a prosthetic device’s characteristics and the
“circumstances in which it is used,” it may properly be considered a
“dangerous instrument”).

¶16 Rothrock also argues the evidence does not show he acted
with the requisite state of mind. He contends he could not have

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intentionally or knowingly disturbed the victims’ peace because the police
truck “turned into his path” after he crossed the median and drove into
oncoming traffic.

¶17 We review a claim of insufficient evidence de novo. State v.
West, 226 Ariz. 559, 562, ¶ 15 (2011). Sufficient evidence may be direct or
circumstantial and “is such proof that ‘reasonable persons could accept as
adequate and sufficient to support a conclusion of [a] defendant’s guilt
beyond a reasonable doubt.’” State v. Borquez, 232 Ariz. 484, 487, ¶ 9 (App.
2013) (quoting State v. Mathers, 165 Ariz. 64, 67 (1990)).

¶18 The evidence outlined above establishes that Rothrock
initiated contact with Lieutenant Wallace to provoke a car chase, if not an
exchange of gunfire that would result in his death. Supra, ¶ 2. Rothrock
ultimately incited officers by firing his gun at them after violating multiple
traffic laws and refusing to obey commands to stop. Accordingly, a juror
could reasonably conclude that Rothrock maneuvered his vehicle into
oncoming traffic intending or knowing that doing so would disturb the
peace of police officers who were in his direction of travel either at the
moment he crossed the median or, as here, immediately thereafter as they
responded to the ongoing threat posed by Rothrock’s driving. Thus,
sufficient mens rea evidence supports Rothrock’s convictions on Counts 8
through 12.

C. The Court Did Not Abuse Its Discretion by Imposing an Enhanced
Sentence for the Aggravated Assault Convictions.

¶19 Finally, Rothrock argues the court erred by relying on
“threatened infliction of serious physical injury” to impose increased
sentences for the aggravated assault convictions because that aggravating
circumstance is an element of the offenses. See A.R.S. § 13-701(D)(1)
(“Infliction or threatened infliction of serious physical injury [shall be
considered as an aggravating circumstance], except if this circumstance is
an essential element of the offense of conviction . . . .”); see also State v. Pena, 209 Ariz. 503, 506–07, ¶ 14 (App. 2005) (confirming it is an error to use
infliction of serious physical injury as an aggravating circumstance when
the defendant is convicted of aggravated assault based on serious physical
injury). Whether a court can consider an aggravating factor when
sentencing a defendant presents a legal question that we review de novo.
State v. Alvarez, 205 Ariz. 110, 113, ¶ 6 (App. 2003).

¶20 The applicable element of the offenses, as charged, is
“apprehension of imminent physical injury,” A.R.S.

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§§ 13-1203(A)(2), -1204(A)(2), not “threatened infliction of serious physical
injury,” A.R.S. § 13-701(D)(1). Thus, the offense and the aggravating factor
each require proof of facts the other does not. The former requires the victim
to anticipate an imminent injury, and the latter requires a defendant to
threaten a serious injury. Compare A.R.S. § 13-105(33) (defining “physical
injury”) with A.R.S. § 13-105(39)(defining “serious physical injury”); see
State v. Eagle, 196 Ariz. 188, 190, ¶ 6 (2000) (“In deciding whether a
defendant has been punished twice for the same offense, it is necessary to
examine the elements of the crimes for which the individual was sentenced
and determine ‘whether each [offense] requires proof of an additional fact
which the other does not.’”) (alteration in original) (quoting Blockburger v.
United States, 284 U.S. 299, 304 (1932)). Unlike the offense, the aggravating
factor does not require that the victim perceive an immediate injury. Cf.
State v. Pina-Barajas, 244 Ariz. 106, 108, ¶ 5 (App. 2018) (“An imminent
injury is one that is immediate, about to occur, or impending. A threat of
imminent injury is necessarily distinct from one of eventual harm, which
would functionally erase the imminence element from our statute’s
definition of the necessity defense.”) (internal quotation marks and
citations omitted).

¶21 The superior court did not abuse its discretion by using the
aggravating circumstance to enhance Rothrock’s sentence.

CONCLUSION

¶22 We affirm Rothrock’s convictions and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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