State v. Kyle

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

SHAWN PATRICK KYLE, Appellant.

No. 1 CA-CR 20-0531
FILED 6-23-2022

Appeal from the Superior Court in Yavapai County
No. V1300CR201680108
The Honorable Michael R. Bluff, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Law Offices of Stephen L. Duncan PLC, Scottsdale
By Stephen L. Duncan
Counsel for Appellant

Shawn Patrick Kyle, Camp Verde
Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Angela K. Paton delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Vice Chief Judge David B. Gass
joined.

P A T O N, Judge:

¶1 In accordance with Anders v. California, 386 U.S. 738 (1967) and
State v. Leon, 104 Ariz. 297 (1969), Shawn Patrick Kyle appeals his conviction
for resisting arrest. Kyle’s counsel searched the record and found no
arguable, non-frivolous question of law. See Anders, 386 U.S. at 744. Kyle
filed a supplemental brief. We view the record in the light most favorable
to sustaining the conviction and resolve all reasonable inferences against
Kyle. See State v. Guerra, 161 Ariz. 289, 293 (1989). After reviewing the
record, we find no error and reject the arguments Kyle raised in his
supplemental brief. We affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In February 2016, a joint taskforce of Cottonwood police
officers, Partners Against Narcotic Trafficking (PANT) and Gang and
Immigration Intelligence Team Enforcement (GIITEM) executed an arrest
warrant on Kyle. Taskforce officers followed Kyle into a parking lot and
surrounded his vehicle. Kyle locked himself in the car, ignoring law
enforcement’s orders to exit, and picked up an axe. Officers tried
unsuccessfully to draw Kyle out of the car by tasing him three times and
sending in a K-9 dog, which Kyle struck with the axe.

¶3 When Kyle eventually exited the vehicle, he ignored
commands from law enforcement, and “continued to struggle, trying to put
his hands underneath him and not giving officers control of his arms or
hands to allow him to be handcuffed.” Officers eventually arrested and
searched Kyle and found baggies or bindles of methamphetamine in his
pocket.

¶4 The grand jury indicted Kyle on four counts of aggravated
assault (counts 1-4), one count of resisting arrest (count 5), one count of
possession of a dangerous drug (count 6-methamphetamine), and one
count of possession of drug paraphernalia (count 7-methamphetamine).

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Decision of the Court

¶5 After the State rested, the court dismissed counts 2 and 3 on
Kyle’s motion for judgment of acquittal. See Ariz. R. Crim. P. 20(a)(1). The
jury acquitted Kyle on counts 1, 4, 6, and 7, and convicted him of count 5
(resisting arrest).

¶6 The jury found two aggravators: (1) use of a deadly weapon
or dangerous instrument, and (2) Kyle committed the charged offense while
released on bond in another case.1 The court sentenced Kyle to the
minimum term of five years in prison (three years for the offense plus two
years because he was on release when he committed the offense), to run
consecutively to his sentence in the 2014 case. The court correctly awarded
Kyle zero days of presentence incarceration credit. See State v. Whitney, 159
Ariz. 476, 487 (1989) (if a defendant is held in custody on two matters for
which consecutive sentences are ordered, the defendant may not receive
“double credit” toward both sentences).

¶7 Kyle timely appealed. We have jurisdiction pursuant to
Article 6, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-
4033(A)(1).

DISCUSSION

¶8 The record contains sufficient evidence from which the jury
could determine, beyond a reasonable doubt, that Kyle was guilty of
resisting arrest. The record also reflects that (1) all proceedings were
conducted in compliance with Arizona Rules of Criminal Procedure, (2)
Kyle was represented by counsel at all stages of the proceeding, and (3)
Kyle was present at all critical stages. See State v. Conner, 163 Ariz. 97, 104
(1990) (right to counsel); see State v. Bohn, 116 Ariz. 500, 503 (1977) (right to
be present at critical stages).

¶9 The jury was made up of twelve properly instructed jurors.
See A.R.S. § 21-102(A). Kyle waived his right to a presentence report. See
State v. Garcia, 112 Ariz. 363, 364-65 (1975). Kyle spoke during sentencing
and the court stated the factors it considered before imposing a sentence
within the statutory limit. A.R.S. § 13-703; see also Ariz. R. Crim. P.
26.10(b)(1) (defendant’s right to address the court at sentencing).

¶10 Kyle argues that ”this entire case should have been deemed
inadmissible as fruit of a poisonous tree . . . due to the sheer amount of
nefarious and often illegal acts committed by the arresting agencies.” He

1Kyle was arrested in this case while released on bond in an unrelated 2014
case. In 2019, Kyle was tried and convicted in the 2014 case.

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Decision of the Court

broadly argues that the investigation against him was driven by one
officer’s desire for “vengeance.” These arguments are essentially an
invitation to reweigh the evidence, which this court will not do. See Guerra,
161 Ariz. at 293.

¶11 Kyle also raises several claims relating to the dangerous drug
charges, of which the jury acquitted him. Those charges are not the subject
of this appeal and we will not address them.

CONCLUSION

¶12 We have reviewed the entire record for arguable issues of law
and find none. We thus affirm Kyle’s conviction and sentence. See Leon, 104
Ariz. at 300-01.

¶13 Defense counsel’s obligations pertaining to Kyle’s
representation in this appeal have ended. Counsel must only inform Kyle
of the outcome of this appeal and his future options, unless, upon review,
counsel finds “an issue appropriate for submission” to the Arizona
Supreme Court by petition for review. See State v. Shattuck, 140 Ariz. 582,
584-85 (1984). Kyle will have thirty days from the date of this decision to
proceed, if he desires, with a pro per motion for reconsideration or petition
for review.

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

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