State v. Davidsen

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSHUA GEORGE DAVIDSEN, Appellant.

No. 1 CA-CR 19-0407
FILED 10-1-2020

Appeal from the Superior Court in Maricopa County
No. CR2018-138229-001
The Honorable Marvin L. Davis, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Mark E. Dwyer
Counsel for Appellant
 STATE v. DAVIDSEN
Decision of the Court

MEMORANDUM DECISION

Judge D. Steven Williams delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig
joined.

W I L L I A M S, Judge:

¶1 Joshua George Davidsen appeals his convictions and
resulting consequences for two counts of disorderly conduct and one count
of threatening or intimidating. For reasons that follow, we affirm.

FACTUAL1 AND PROCEDURAL HISTORY

¶2 Davidsen and B.T. were neighbors. B.T. and her boyfriend,
M.S., were swimming in her new pool one night when Davidsen started an
argument through the block fence separating their properties. Davidsen
complained about B.T.’s dogs and B.T.’s recent pool construction. He
insulted B.T. and taunted her boyfriend. When the boyfriend reacted,
Davidsen grabbed a knife from inside his home, stood by the fence waving
the knife, and ultimately threatened to cut M.S.’s throat.

¶3 The State charged Davidsen with two counts of disorderly
conduct, Class 6 dangerous felonies (Counts 1 and 2), and threatening or
intimidating, a Class 1 misdemeanor (Count 3). Davidsen’s first trial ended
in a hung jury. Following the retrial, a jury convicted Davidsen as charged.
The superior court sentenced Davidsen to concurrent terms of 1.75 years
imprisonment on Counts 1 and 2, with a two-year probation grant for
Count 3 to begin upon release from prison. We have jurisdiction over
Davidsen’s timely appeal pursuant to Article 6, Section 9, of the Arizona
Constitution and Arizona Revised Statutes (“A.R.S.”) sections
12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶4 Davidsen argues the consecutive term of probation imposed
on Count 3 constituted an illegal sentence under § 13-116 because the

1 We view the evidence in the light most favorable to sustaining the
verdicts, resolving reasonable inferences against Davidsen. See State v.
Stroud, 209 Ariz. 410, 412, ¶ 6 (2005).

2
 STATE v. DAVIDSEN
Decision of the Court

threatening or intimidating offense arose from the same act as the
disorderly conduct offenses. Davidsen did not object when the superior
court imposed his sentence. Thus, we review his challenge only for
fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, 140, 142,
¶¶ 12–13, 21 (2018). An illegal sentence is fundamental error. State v. Thues, 203 Ariz. 339, 340, ¶ 4 (App. 2002).

¶5 “An act or omission which is made punishable in different
ways by different sections of the laws may be punished under both, but in
no event may sentences be other than concurrent.” A.R.S. § 13-116. We
apply a three-part test set forth in State v. Gordon, 161 Ariz. 308, 312–313
(1989), to determine whether a defendant committed a single act, requiring
concurrent sentences, or multiple acts, authorizing consecutive sentences,
see State v. Carlson, 237 Ariz. 381, 400, ¶ 80 (2015).

¶6 Under the first Gordon factor, we “subtract[] from the factual
transaction the evidence necessary to convict on the ultimate charge[,]”
– here, disorderly conduct 2 – and “[i]f the remaining evidence satisfies the
elements of the other crime, then consecutive sentences may be
permissible[.]” 161 Ariz. at 315. We consider the other factors only if the
first part of the Gordon test does not end the inquiry. See State v. Roseberry, 210 Ariz. 360, 370, ¶ 58 (2005) (explaining the other Gordon factors are
examined only when the first factor permits consecutive sentences).

¶7 The second Gordon inquiry analyzes “whether, given the
entire ‘transaction,’ it was factually impossible to commit the ultimate crime
without also committing the secondary crime. If so, then the likelihood will
increase that the defendant committed a single act[.]” 161 Ariz. at 315
(emphasis added). Third, we examine “whether the defendant’s conduct in
committing the lesser crime caused the victim to suffer an additional risk of
harm beyond that inherent in the ultimate crime.” Id. Relevant to the issue
before us, “despite the general principle that probation is not a sentence,
A.R.S. § 13-116 must be interpreted to prohibit the court from imposing a
consecutive term of probation when the conviction underlying it flows from
the same act as a conviction resulting in a sentence of imprisonment.” State
v. Watson, 248 Ariz. 208, 218, ¶ 32 (App. 2020).

¶8 Applying the first Gordon factor, we must discard the
evidence necessary to prove disorderly conduct and determine whether the
remaining evidence satisfies the elements of threatening or intimidating. As
presented to the jury, the disorderly conduct charges required the State to

2 There is no dispute that disorderly conduct is the ultimate charge.

3
 STATE v. DAVIDSEN
Decision of the Court

prove Davidsen “knowingly or intentionally disturbed the peace or quiet”
of B.T. and M.S. by “recklessly handling or displaying” the knife. See A.R.S.
§ 13-2904(A)(6). For the jury to convict Davidsen of threatening or
intimidating, the State had to prove he “threatened or intimidated by word
or conduct . . . to cause physical injury to another person.” See A.R.S.
§ 13-1202(A)(1).

¶9 Both parties conclude that Davidsen completed the crime of
disorderly conduct when the victims saw him waving the knife as he stood
by the fence, and we agree. Taking away that evidence, the remaining
evidence established that Davidsen threatened to cut M.S.’s throat. Given
the verbal altercation minutes earlier and Davidsen’s aggressive demeanor,
his threat to cut M.S.’s throat satisfied the elements of the threatening or
intimidating charge. See In re Kyle M., 200 Ariz. 447, 451–452, ¶¶ 22-23 (App.
2001) (holding that § 13-1202(A)(1) applies to a “true threat,” meaning one
that a reasonable person would understand as a genuine threat to inflict
harm); see also In re Ryan A., 202 Ariz. 19, 22–23, ¶¶ 11-14 (App. 2002) (same
and explaining the standard is objective). Possessing the knife may have
added weight to Davidsen’s threat but was unnecessary to prove the
threatening or intimidating charge.

¶10 Turning to Gordon’s second factor, B.T. testified that although
Davidsen “disturbed [her] peace” by “waving a knife over the fence,” she
was not in “physical fear” or “physical harm” because she was
“far enough away.” Similarly, M.S. acknowledged that Davidsen’s act of
“waving [the knife] in the air” was “disturbing,” but that Davidsen
remained around twenty feet away, never climbing over the fence.

¶11 Based on the entire transaction, a reasonable juror could find
that Davidsen’s display of the knife disturbed each victim’s peace without
conveying a genuine threat to injure—given the distance and block fence
separating them. See In re Kyle M., 200 Ariz. at 451–452, ¶¶ 22-23; cf. State v.
Erivez, 236 Ariz. 472, 476, ¶ 18 (App. 2015) (“Disturbing the peace or quiet
of the victim does not necessarily rise to the level of placing the victim in
reasonable apprehension of immediate physical injury, the conduct
required for an assault.”). Therefore, because the evidence showed it was
factually possible for Davidsen to disturb the victims without threatening
them, the second Gordon factor weighs toward viewing the crimes as
multiple acts.

¶12 For similar reasons, the third Gordon factor also weighs
against concluding Davidsen committed a single act. Davidsen’s threat to

4
 STATE v. DAVIDSEN
Decision of the Court

cut M.S.’s throat added a risk of deadly harm not part of his disorderly
conduct act of disturbing their peace.

¶13 Lastly, Davidsen argues the way in which the evidence was
presented, and the prosecutor’s closing argument, support his single-act
argument, given that the prosecutor emphasized Davidsen’s possession of
the knife to prove all three crimes. But we do not consider the State’s
arguments when conducting the Gordon analysis. 161 Ariz. at 315. Rather,
we must determine whether the State produced evidence sufficient to show
Davidsen committed multiple acts, and the State did so here. Accordingly,
the superior court did not err, fundamentally or otherwise, by imposing a
consecutive term of probation.

CONCLUSION

¶14 For the foregoing reasons, we affirm Davidsen’s convictions,
sentences, and probation grant.

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

5