State v. Graves

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROBERT TERRELL GRAVES, Appellant.

No. 1 CA-CR 22-0508
FILED 8-15-2023

Appeal from the Superior Court in Maricopa County
No. CR2021-030730-001
The Honorable Ronee Korbin Steiner, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jesse Finn Turner
Counsel for Appellant
 STATE v. GRAVES
Decision of the Court

MEMORANDUM DECISION

Judge Andrew M. Jacobs delivered the decision of the Court, in which Chief
Judge David B. Gass and Judge Brian Y. Furuya joined.

J A C O B S, Judge:

¶1 Robert Terrell Graves (Defendant) appeals under Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), from
convictions and sentences arising from an interaction with peace officers.
Though defense counsel emphasizes that this court should independently
review the video evidence, counsel identifies no issues for appeal and
requests that we search the record for arguable issues. See Penson v. Ohio, 488 U.S. 75 (1988); State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999).
Defendant was given the opportunity to file a pro per brief, but did not do
so. Our review of the record, including the video evidence, reveals no
arguable issues. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S.
738; Clark, 196 Ariz. at 537, ¶ 30. We thus affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Defendant was charged with two varieties of aggravated
assault of a peace officer—one based on the infliction of physical injury on
the officer (Count 1), and one based on the knowing touching of the officer
with the intent to injure, insult, or provoke him (Count 2). He was also
charged with resisting arrest (Count 3) and false reporting to law
enforcement (Count 4). Defendant pled not guilty, and the case proceeded
to a jury trial on the felony offenses and a bench trial on the misdemeanor
Count 4.

¶3 At trial, the state presented evidence of the following facts.
On the afternoon of September 24, 2021, a security guard approached
Defendant as he attempted to enter a store at a Scottsdale shopping plaza.
The two then began to argue outside the doorway, catching the attention of
a uniformed Scottsdale Police Officer, who was taking a break at a
neighboring beat office.

¶4 The Officer exited the beat office and directed Defendant to
sit in a nearby chair. Defendant complied. The Officer then asked
Defendant what he was doing there, and Defendant responded that the

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Officer was perpetrating fraud and that it was a federal offense. Defendant
then rose from the chair. The Officer again asked Defendant to sit, but
Defendant did not do so. Instead, Defendant stepped close to the Officer,
gesticulating aggressively with his hands, extending his chest, and yelling,
“No, you sit down!” and “What you gonna do?” The Officer shoved
Defendant, and the two engaged in a physical fight. During the fight,
Defendant hit the Officer’s ear with his hand, causing a cut with his
fingernail. Defendant then flailed and kicked as the Officer and the security
guard, who had joined in the altercation, worked to get Defendant’s hands
behind his back. The two eventually were able to subdue and handcuff
Defendant, with the Officer sustaining multiple abrasions, a sprained wrist,
and a torn rotator cuff in addition to the cut on his ear.

¶5 Other officers arrived on the scene and asked Defendant for
identifying information. Defendant responded that his first and last names
were both “Buddha,” and he denied having a Social Security number.

¶6 At the close of the state’s case, Defendant unsuccessfully
moved for a judgment of acquittal under Arizona Rule of Criminal
Procedure 20. Defendant elected not to testify, and he presented no
evidence.

¶7 The court found Defendant guilty of false reporting, and the
jury found Defendant guilty of all other counts. A trial on priors followed,
at which the court found that Defendant had five historical prior felony
convictions. The court then entered judgment on the verdicts and
sentenced Defendant to presumptive concurrent prison terms of 10 years
for Count 1, 5 years for Count 2, and 3.75 years for Count 3, with credit for
406 days of presentence incarceration and a terminal-disposition 6-month
jail sentence for Count 4.

¶8 Defendant timely appealed. We have jurisdiction pursuant to
Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12–
120.21(A)(1), 13–4031, –4033(A)(1).

DISCUSSION

¶9 We find no reversible error. The record reflects that
Defendant, who was represented at all stages, was afforded all
constitutional and statutory rights and that the proceedings were
conducted in accordance with the applicable procedural rules.

¶10 The verdicts were justified. For the aggravated assault
charged in Count 1, the state was required to prove that Defendant,

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knowing or having reason to know that the Officer was a peace officer,
intentionally, knowingly, or recklessly caused any physical injury to him.
A.R.S. §§ 13-1203(A)(1), -1204(A)(8)(a). For the aggravated assault charged
in Count 2, the state was required to prove that Defendant, knowing or
having reason to know that the Officer was a peace officer, knowingly
touched the Officer with the intent to injure, insult, or provoke him. A.R.S.
§§ 13-1203(A)(3), -1204(A)(8)(a). Sufficient evidence supported Defendant’s
convictions on both counts. Evidence showed that Defendant fought the
uniformed Officer, touching him with the intent to injure him and achieving
that goal. We note that though the facts supporting the two forms of assault
happen to converge in this record, the offenses are legally distinct. See In re
Jeremiah T., 212 Ariz. 30, 33–34, ¶¶ 10–13 (App. 2006). We further note that
though the Officer made the first physical contact, Defendant never
requested a self-defense instruction. Moreover, A.R.S. § 13-404(B)(2), (3),
recognizes that a defendant is not justified in using physical force against a
peace officer if he provoked the peace officer’s use of unlawful physical
force, or if he resisted a lawful or unlawful arrest that he reasonably knew
was being made by a peace officer not exerting legally excessive force.
Evidence showed that Defendant provoked the Officer’s action by rising,
refusing an order to sit, and advancing aggressively. Evidence further
showed that Defendant fought as the Officer sought to subdue him.

¶11 For the resisting arrest charged in Count 3, the state was
required to prove that Defendant, reasonably knowing that the Officer was
a peace officer acting under color of official authority, intentionally
attempted to prevent him from effecting an arrest by using physical force
against him. A.R.S. § 13-2508(A)(1). The effectuation of an arrest is the on-
going process of achieving an arrest, and there is no requirement that an
officer make a formal declaration of arrest. State v. Barker, 227 Ariz. 89, 90–
91, ¶¶ 8, 10 (App. 2011). Even minor scuffling may constitute unlawful
resistance. State v. Lee, 217 Ariz. 514, 517, ¶ 12 (App. 2008). Here, the
evidence that Defendant flailed and fought as the Officer tried to restrain
and handcuff him was sufficient to support the conviction.

¶12 For the false reporting charged in Count 4, the state was
required to prove that Defendant knowingly made a false, fraudulent, or
unfounded report or statement to a law enforcement agency, or knowingly
misrepresented a fact for the purpose of interfering with the orderly
operation of a law enforcement agency or misleading a peace officer. A.R.S.
§ 13-2907.01(A). Evidence showed that Defendant gave police officers a
false name and denied having a Social Security number. That was sufficient
to support the conviction.

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¶13 The court entered lawful sentences on all counts. Count 1 was
a class 4 felony under A.R.S. § 13-1204(F). Count 2 was a class 5 felony
under § 13-1204(F). Count 3 was a class 6 felony under § 13-2508(B). Count
4 was a class 1 misdemeanor under § 13-2907.01(B). The state presented
sufficient evidence to show that Defendant had five historical prior felony
convictions under § 13-105(22)(c) and (d), making him a category three
repetitive offender under § 13-703(C). The court imposed proper
presumptive sentences on the felony convictions under § 13-703(J), and a
proper sentence on the misdemeanor conviction under § 13-707(A)(1). The
court also properly credited Defendant’s presentence incarceration under
§ 13-712(B).

CONCLUSION

¶14 We affirm Defendant’s convictions and sentences.

¶15 Defense counsel’s obligations pertaining to this appeal have
come to an end. See State v. Shattuck, 140 Ariz. 582, 584–85 (1984). Unless
upon review counsel discovers an issue appropriate for a petition for
review to the Arizona Supreme Court, counsel must only inform Defendant
of the status of this appeal and his future options. Id. Defendant has 30
days from the date of this decision to file a petition for review in propria
persona. See Ariz. R. Crim. P. 31.21(b)(2)(A). On the court’s own motion,
Defendant has 30 days from the date of this decision to file a motion for
reconsideration. See Ariz. R. Crim. P. 31.20(c). A timely motion for
reconsideration will extend the deadline to file a petition for review. See
Ariz. R. Crim. P. 31.21(b)(2)(A).

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

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