State v. Quarmby

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

DONOVAN QUARMBY, JR., Appellant.

No. 1 CA-CR 22-0027
FILED 9-29-2022

Appeal from the Superior Court in Maricopa County
No. CR2021-123829-001
The Honorable Frank W. Moskowitz, Judge

AFFIRMED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Thomas K. Baird
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Cynthia J. Bailey delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Vice Chief Judge David B. Gass
joined.

B A I L E Y, Judge:

¶1 This is an appeal under Anders v. California, 386 U.S. 738 (1967)
and State v. Leon, 104 Ariz. 297 (1969). Counsel for Defendant Donovan
Quarmby, Jr. filed a brief advising the court that, after searching the entire
record, he is unable to discover any arguable questions of law and
requesting that this court conduct an Anders review of the record. Quarmby
was given the opportunity to file a supplemental brief pro per, and
although he did not do so, he raised two issues through counsel that we
address. For the following reasons, we affirm Quarmby’s conviction and
probation.

FACTS AND PROCEDURAL HISTORY

¶2 Anna1 invited Quarmby—her brother—and his two children
to stay in her home with her three children. Early one morning, Anna
awoke to Quarmby yelling and his youngest child who was crying. Anna
went to the kitchen and saw Quarmby “yelling into his [youngest child’s]
face.” Quarmby was upset about a towel hook that had been pulled from
the bathroom wall.

¶3 Anna comforted Quarmby’s youngest child and raised her
voice at Quarmby, demanding he stop yelling. An argument between Anna
and Quarmby ensued, and Quarmby, standing more than 20 feet away
from Anna, “balled up his fists” and sprinted at her, causing her to back
into a wall. Once Quarmby reached Anna, he dropped his forehead into
her face, headbutting her and fracturing her nasal bone. One of Anna’s
children called 911 to notify the police.

1 Anna is a pseudonym we use to protect the victim’s identity. See
State v. Bolivar, 250 Ariz. 213, 217, ¶ 2 n.1 (App. 2020).

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¶4 The State charged Quarmby with aggravated assault, a class
four felony and domestic violence offense, and five counts of disorderly
conduct, class one misdemeanors.

¶5 At trial, all the children in the home testified. Quarmby’s
youngest child said that Quarmby questioned him about a broken towel
hanger in the bathroom. He said Quarmby yelled at and hit him,2 and when
Anna came into the room, Quarmby started to yell at her too. He testified,
“My dad was running at her, and then he hit her in the head -- well, he hit
her in the nose with his head.” All the other children’s testimony was
consistent and substantially corroborated this series of events.

¶6 The jury convicted Quarmby of the felony aggravated assault
charge and acquitted him of the remaining charges. The trial court
suspended imposition of sentence and placed Quarmby on supervised
probation for three years, including 210 days in jail, with credit for his
presentence incarceration.

¶7 We have jurisdiction over Quarmby’s timely appeal under
Article 6, section 9, of the Arizona Constitution, and Arizona Revised
Statutes (“A.R.S.”) sections 12–120.21(A)(1), 13–4031, and 13–4033(A).

DISCUSSION

¶8 Quarmby raised two issues through counsel: (1) he argues
insufficient evidence supports concluding he had the requisite intent for
aggravated assault, and (2) his acquittal on the disorderly conduct charges
demonstrates that the aggravated assault was simply a “mistake.”

¶9 Assault occurs when a person “[i]ntentionally, knowingly, or
recklessly caus[es] any physical injury to another person.” A.R.S. § 13-
1203(A)(1). An assault is aggravated when the person committing the
assault fractures any body part of the other person. A.R.S. § 13-1204(A)(3).

¶10 The State presented testimony that Quarmby ran in Anna’s
direction with his head down and his fists balled up. The State also
presented expert testimony that Anna suffered a nasal fracture and
introduced photographs into evidence depicting her facial injuries. Because

2 For “appellate purposes,” Quarmby suggested that his youngest
child’s testimony merited a mistrial, but specifically asked the court not to
grant a mistrial. The trial court later instructed the jury that “both sides
stipulate that that was simply part of normal discipline of the child and
you’re not to read anything further into that testimony.”

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substantial evidence supports that Quarmby committed aggravated
assault, we find no error, much less reversible error, in Quarmby’s
conviction.

¶11 Quarmby next argues that his aggravated assault conviction
should be deemed a “mistake” because he was acquitted of the disorderly
conduct charges.

¶12 “A person commits disorderly conduct if, with intent to
disturb the peace or quiet of a neighborhood, family or person, or with
knowledge of doing so, such person . . . [m]akes unreasonable noise.”
A.R.S. § 13-2904(A)(2).

¶13 Here, Quarmby need not have intended to disturb the peace
or quiet of anyone in the home to have intentionally, knowingly, or
recklessly assaulted and injured Anna. “Because intent to disturb is an
essential element of disorderly conduct, a person can commit aggravated
assault under subsection (A)(1) [of A.R.S. § 13-1203] without committing
disorderly conduct.” State v. Foster, 191 Ariz. 355, 357, ¶ 10 (App. 1998).
Thus, “disorderly conduct is not a lesser-included offense of aggravated
assault under A.R.S. section 13-1203(A)(1),” id., and Quarmby’s conviction
for aggravated assault is consistent with his acquittal of disorderly conduct.

¶14 We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300; State v. Clark, 196 Ariz. 530, 537, ¶ 30
(App. 1999). The evidence presented at trial was substantial and supported
a finding that Quarmby possessed the requisite intent for aggravated
assault. Moreover, Quarmby’s claim that his aggravated assault conviction
should be viewed as a mistake because he was acquitted of the disorderly
conduct charges is without merit.

¶15 Quarmby was represented by counsel at all stages of the
proceedings and was given the opportunity to speak at sentencing. The
proceedings were conducted in compliance with his constitutional and
statutory rights and the Arizona Rules of Criminal Procedure.

CONCLUSION

¶16 Quarmby’s conviction and probation are affirmed.

¶17 Upon the filing of this decision, defense counsel is directed to
inform Quarmby of the status of his appeal and of his future options.
Defense counsel has no further obligations unless, upon review, counsel
finds an issue appropriate for submission to the Arizona Supreme Court by

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petition for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984).
Quarmby will have 30 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: JT

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