State v. Jones

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DANNY JOSEPH JONES, Appellant.

Nos. 1 CA-CR 21-0431, 1 CA-CR 22-0052
(Consolidated)
FILED 9-29-2022

Appeal from the Superior Court in Mohave County
No. S8015CR202000977
The Honorable Richard D. Lambert, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Jacob R. Lines
Counsel for Appellee

Law Office of Nicole Countryman, Phoenix
By Nicole Countryman
Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Cynthia J. Bailey delivered the decision of the Court, in
which Judge Peter B. Swann and Judge D. Steven Williams joined.
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Decision of the Court

B A I L E Y, Judge:

¶1 Danny Joseph Jones appeals his conviction for tampering
with physical evidence and the superior court’s denial of his motions to
vacate the judgment. Jones also contends the superior court erred in
sentencing him as a category three repetitive offender. For the following
reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In September 2020, a grand jury indicted Jones, charging him
with six counts: Count One, drive-by shooting, a class two felony, Counts
Two and Three, endangerment, both class six felonies, Count Four,
disorderly conduct involving a deadly weapon or dangerous instrument, a
class six felony, Count Five, misconduct involving weapons, a class four
felony, and Count Six, tampering with physical evidence, a class six felony.

¶3 On the first day of trial, the court granted the State’s motion
to dismiss Count Three with prejudice. The State then presented the
following evidence: In August 2020, Jones shot the rear window of a parked
car with a shotgun after a brief argument with the car’s owner. The car was
unoccupied, but the car’s owner and two other persons, including Jones’
former girlfriend, were standing near it. One bystander reacted by
screaming, and Jones’ former girlfriend “was in shock.”

¶4 After the shooting, Jones drove to a friend’s house and told
the friend he shot at a vehicle. The friend encouraged Jones to turn himself
in, but Jones declined, stating he did not want to go to prison. Jones asked
to borrow money, a car, and a phone to call another friend. Jones said he
needed to “get out of town,” and then looked at his phone and told the
friend, “[The police] pinged me. I got to go.” Jones then fled but was
apprehended a short time later. He told police he left the shotgun in a
vacant construction lot, but law enforcement did not find the weapon.

¶5 After close of the State’s evidence, the superior court denied
Jones’ motion for judgment of acquittal as to Count One, drive-by shooting.
See Ariz. R. Crim. P. (“Rule”) 20. Jones testified, admitted to the shooting,
and stated he did not turn himself into law enforcement because “[he] was
scared of getting arrested because [he] was an ex-felon and shooting a gun,”
and that he “got rid of [the shotgun] because everything just happened.”
Jones admitted to having a felony conviction from South Carolina in 1999
and to being a prohibited possessor as a result.

¶6 The jury convicted Jones of endangerment as a misdemeanor,
disorderly conduct involving a deadly weapon or dangerous instrument,
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Decision of the Court

misconduct involving weapons, and tampering with physical evidence, but
acquitted him of drive-by shooting.

¶7 Following trial, the court held a sentencing evidentiary
hearing and granted the State’s motion to admit certified conviction records
for Jones’ prior felony convictions, including the 1999 South Carolina
conviction for which Jones served a twenty-year sentence, and three
California convictions from 1987 and 1988. The court found Jones had four
prior felony convictions and sentenced him as a category three repetitive
offender to multiple prison terms totaling eleven years. See Ariz. Rev. Stat.
(“A.R.S.”) § 13-703(C).

¶8 The court denied Jones’ pro per motion to vacate the judgment
under Rule 24.2. Jones timely appealed the denial of his Rule 24.2 motion
and separately appealed his conviction for tampering with physical
evidence. We have jurisdiction over Jones’ consolidated appeals under
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 13-4031 and
13-4033(A).

DISCUSSION

I. Tampering with Physical Evidence Conviction

¶9 We review de novo whether substantial evidence supports the
verdict. State v. Borquez, 232 Ariz. 484, 487, ¶ 9 (App. 2013). We view the
evidence in the light most favorable to sustaining the verdict, and we do
not reweigh the evidence. Id.

¶10 “A person commits tampering with physical evidence if, with
intent that it be used, introduced, rejected or unavailable in an official
proceeding which is then pending or which such person knows is about to
be instituted, such person . . . [d]estroys, mutilates, alters, conceals or
removes physical evidence with the intent to impair its verity or availability
. . . .” A.R.S. § 13-2809(A)(1).

¶11 Jones argues insufficient evidence supports that he knew a
criminal proceeding would be instituted when he hid the shotgun. Jones
admitted at trial, however, he hid the gun because he was afraid of being
arrested. Jones cites State v. Escalante, 242 Ariz. 375 (App. 2017), to argue
that a conviction for tampering with evidence requires the defendant see
police officers in pursuit before disposing of the evidence. Our supreme
court vacated the portion of this court’s opinion on which Jones relies. See
State v. Escalante, 245 Ariz. 135, 146, ¶ 43 (2018). Moreover, although
Escalante held such facts to be sufficient to sustain a conviction, it did not
impose such a requirement for every case. See 242 Ariz. at 386, ¶ 50. Even
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Decision of the Court

so, before fleeing and hiding the shotgun, Jones admitted the police had
“pinged” his phone. Substantial evidence therefore supports the jury’s
conclusion that Jones knew a criminal proceeding would be instituted and
thus supports his tampering with physical evidence conviction.

II. Motion to Vacate Based on Defects in the Grand Jury Proceeding

¶12 Jones argues the court erred in denying his motion to vacate
the judgment. See Ariz. R. Crim. P. 24.2(a)(3) (stating that the court must
vacate a judgment if it finds the conviction was obtained in violation of the
United States or Arizona constitutions). He argues on appeal, as he did in
his motion to vacate, that the state violated his due process rights by
offering false statements to the grand jury and failing to read the disorderly
conduct involving a weapon charge or statute.

¶13 Jones cannot obtain review of alleged errors in a grand jury
proceeding because probable cause “is no longer open to question” once a
jury determines the defendant’s guilt beyond a reasonable doubt. State v.
Just, 138 Ariz. 534, 541-42 (App. 1983); cf. State v. Atwood, 171 Ariz. 576, 601
(1992) (explaining that a jury’s guilty verdict makes any error in the
charging decision harmless), disapproved of on other grounds by State v.
Nordstrom, 200 Ariz. 229, 241, ¶ 25 (2001), abrogated in part by State v. Ferrero, 229 Ariz. 239, 242-43, ¶¶ 14-20 (2012). “[W]e will not determine the
propriety of withholding evidence from a grand jury on an appeal from a
subsequent conviction.” State v. Verive, 128 Ariz. 570, 574–75 (App. 1981)
(citing State v. Neese, 126 Ariz. 499, 502-03 (App. 1980)). Indeed, the
purported errors could have been discovered and corrected before trial, but
Jones failed to timely move for a new probable cause finding despite having
access to the grand jury transcripts. See Ariz. R. Crim. P. 12.9. Even so, we
find no merit to Jones’ contention that the State knowingly offered false
testimony to the grand jury.

III. Prior Felony Convictions

¶14 We review the superior court’s historical prior felony
conviction finding de novo. State v. Rasul, 216 Ariz. 491, 496, ¶ 20 (App.
2007). The State must prove a prior conviction by clear and convincing
evidence and “submit positive identification establishing that the accused
is the same person who previously was convicted, as well as evidence of
the conviction itself.” State v. Cons, 208 Ariz. 409, 415, ¶¶ 15-16 (App. 2004)
(citation omitted). In general, the proper procedure is for the State to offer
a certified copy of the prior conviction and establish that the defendant is
the person to whom the document refers. See id. at ¶ 16; see also State v. Solis, 236 Ariz. 242, 248-49, ¶ 22 (App. 2014) (holding that a Department of
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Corrections record with a photograph matching other admitted documents
was sufficient).

¶15 Jones argues insufficient evidence supported the court’s
finding that he had four prior felony convictions and that he was a
prohibited possessor. Not so. Jones admitted at trial that he had a prior
felony conviction and that he was a prohibited possessor, and the State
submitted certified conviction records for each of the prior felony
convictions, which were admitted into evidence. The conviction records
matched the information in the Department of Corrections packets from
California and South Carolina, which included Jones’ name, date of birth,
photographs, and criminal history. See Cons, 208 Ariz. at 415, ¶¶ 16-17. The
social security number on the conviction records matched that on Jones’
presentence investigation report. Contrary to Jones’ contention, no
fingerprint expert testimony was required. See Solis, 236 Ariz. at 247-49,
¶¶ 17, 20-22. The court’s finding is supported by clear and convincing
evidence.

¶16 Jones notably does not argue that he is not the person listed
in the conviction records. See id. at 248-49, ¶ 22. He contends instead that
certain admitted exhibits, including the California Department of
Corrections packet, had been altered to make his 1999 conviction look more
serious, but he does not elaborate or provide evidence to support this
argument. But the court need not consider the seriousness of the felony
when determining the existence of a historical prior felony conviction. See
A.R.S. §§ 13-703(C), -105(22)(d) (defining a historical prior felony conviction
as any third or more prior felony conviction).

CONCLUSION

¶17 We affirm Jones’ convictions and sentences.

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