State v. Harper

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROSCOE MARQUISE HARPER, Appellant.

No. 1 CA-CR 24-0070
FILED 12-17-2024

Appeal from the Superior Court in Maricopa County
No. CR2023-103180-001
The Honorable Kerstin G. LeMaire, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Laila Ikram
Counsel for Appellant
 STATE v. HARPER
Decision of the Court

MEMORANDUM DECISION

Presiding Judge Michael S. Catlett delivered the decision of the Court, in
which Judge Jennifer M. Perkins and Vice Chief Judge Randall M. Howe
joined.

C A T L E T T, Judge:

¶1 A jury convicted Roscoe Marquise Harper (“Harper”) of
aggravated assault. On appeal, Harper argues the superior court erred by
denying his motion for a judgment of acquittal because there was
insufficient evidence that he used a dangerous instrument. Because there
was sufficient evidence to allow a jury to convict, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On January 23, 2023, Harper entered a CVS store where
Thomas (we use a pseudonym to protect victim confidentiality) worked as
a security manager. Thomas recognized Harper because he had been
caught stealing from the store multiple times and often became aggressive
after he was asked to leave. Thomas told Harper he was not welcome in
the store, but Harper ignored him and continued walking. Thomas
followed Harper and again asked him to leave. Harper tried to walk
further, but Thomas stepped in front of Harper so he could not continue
into the store. Harper then pulled a knife from his pocket and held it
roughly two inches from Thomas’s face. In response, Thomas withdrew his
firearm, held it at his side pointed at the floor, and again told Harper he
needed to leave. Harper backed away from Thomas and left.

¶3 Thomas called law enforcement to report the incident. Two
Phoenix Police officers responded and Harper was arrested a few hours
later.

¶4 The State charged Harper with aggravated assault under the
theory that the knife Harper used was a dangerous instrument. See A.R.S.
§ 13-1204(A)(2). At trial, Thomas recounted the incident to the jury and the
State introduced a knife into evidence. The jury viewed the knife and
Thomas testified that Harper wielded that knife on the day of the incident.
When asked to describe Harper’s knife, Thomas said it was “a fairly

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Decision of the Court

common butter knife” with “serrated edges all along the bottom and it
comes out to a point” and it had “a very firm handle.”

¶5 The State also called the two police officers who responded to
the scene. One officer testified that when Harper was arrested, officers
found the knife in his pocket. He also explained that when the knife was
impounded as evidence, it was placed in a box rather than a bag, because it
was “sharp and dangerous and [could] hurt somebody.” The second officer
testified that at the time of his arrest, Harper denied holding the knife in
Thomas’s face and stated he pulled the knife, but kept it at his side. That
officer also testified that Harper told him his memory was poor but did not
think he pointed the knife at Thomas.

¶6 After the State’s case-in-chief, Harper moved for a judgment
of acquittal under Arizona Rule of Criminal Procedure 20(a)(1), arguing the
State failed to meet its burden of proof. The State responded that the
testimony from Thomas and the two officers, along with the presentation
of the knife to the jury, provided sufficient evidence to support a conviction.
The superior court found substantial evidence to warrant conviction and
denied Harper’s motion.

¶7 Harper then presented his case. Harper testified in his
defense and stated that at the time of the incident, he was homeless and
carried his own silverware, including a knife, to use when he ate at resource
centers. Harper also testified that he never held the knife to Thomas’s face
and it remained in his back pocket. On cross examination, Harper testified
that he pulled the knife out of his pocket only as he was leaving the store.

¶8 The jury found Harper guilty of aggravated assault. The jury
also found three aggravating factors, including that the offense was
dangerous because it involved “the use of, or threatening exhibition of a
knife, a deadly weapon or dangerous instrument.” The court sentenced
Harper to 11.25 years in prison.

¶9 Harper timely appealed. We have jurisdiction. See A.R.S.
§§ 12-120.21(A)(1), 13-4031, 13-4033(A).

DISCUSSION

¶10 Harper challenges the superior court’s denial of his motion
for judgment of acquittal, arguing there was insufficient evidence from
which a jury could conclude that his knife was a dangerous instrument. We
view the facts in the light most favorable to sustaining the jury’s verdict and
resolve all inferences against the defendant, State v. Klokic, 219 Ariz. 241, 242

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¶2 n.1 (App. 2008), but we review the superior court’s Rule 20 decision de
novo, State v. Thompson, 252 Ariz. 279, 301 ¶ 86 (2022).

¶11 Under Rule 20(a)(1), “[a]fter the close of evidence on either
side . . . the court must enter a judgment of acquittal on any offense charged
in an indictment, information, or complaint if there is no substantial
evidence to support a conviction.” Substantial evidence is “such proof that
reasonable persons could accept as adequate and sufficient to support a
conclusion of defendant’s guilt beyond a reasonable doubt.” State v. West, 226 Ariz. 559, 562 ¶ 16 (2011) (citation and quotation marks omitted). Our
role is to determine whether “any rational trier of fact could have found the
essential elements of the crime beyond a reasonable doubt.” State v. Parker, 231 Ariz. 391, 407 ¶ 70 (2013) (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979)). “When reasonable minds may differ on inferences drawn from the
facts, the case must be submitted to the jury, and the [superior court] has
no discretion to enter a judgment of acquittal.” State v. Lee, 189 Ariz. 590,
603 (1997). We will not reweigh the evidence on appeal. Id.

¶12 Harper was convicted of aggravated assault. To establish this
offense, the State had to prove beyond a reasonable doubt that (1) Harper
intentionally, knowingly, or recklessly committed an assault, and (2) the
assault was aggravated by the use of a deadly weapon or dangerous
instrument. A.R.S. §§ 13-1203, 13-1204(A)(2). A “dangerous instrument” is
“anything that under the circumstances in which it is . . . threatened to be
used is readily capable of causing death or serious physical injury.” A.R.S.
§ 13-105(12). “Serious physical injury” is “physical injury that creates a
reasonable risk of death, or that causes serious and permanent
disfigurement, serious impairment of health or loss or protracted
impairment of the function of any bodily organ or limb.” A.R.S. § 13-
105(39).

¶13 For something to be a dangerous instrument, it need not be
“inherently dangerous.” State v. Schaffer, 202 Ariz. 592, 595 ¶ 9 (App. 2002).
Instead, “the jury can determine whether the defendant used the object in
such a way that it became . . . a dangerous instrument.” Id. This court has
broadly construed the term dangerous instrument. See State v. Jones, 248
Ariz. 499, 501 ¶ 9 (App. 2020) (concluding that a dog may be a dangerous
instrument); Schaffer, 202 Ariz. at 596 ¶¶ 14-19 (concluding that a
prosethetic arm may be a dangerous instrument); State v. Rodriguez, 251
Ariz. 90, 98 ¶ 25 (App. 2021) (concluding that an iron cord may be a
dangerous instrument); State v. Fatty, 150 Ariz. 587, 590–91 (App. 1986)
(concluding that a cloth may be a dangerous instrument when shoved
down a person’s throat).

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¶14 Harper does not dispute that there was sufficient evidence
that he committed an assault; rather, he alleges there was insufficient
evidence that the knife was a dangerous instrument because it could not
readily cause death or serious injury. We disagree.

¶15 At trial, the parties referred to the knife as a “butter knife.” In
his briefing to this court, Harper continues to characterize the knife as a
“butter knife.” The State now claims the label “butter knife” is a misnomer
and instead characterizes the knife as just that—a “knife.” But how the
parties characterize Harper’s knife is irrelevant for purposes of reviewing
the sufficiency of the evidence. The record on appeal contains neither the
knife nor a photo of the knife, so we cannot know whether Harper’s or the
State’s characterization is more accurate. We thus rely on witness
testimony in determining whether there was sufficient evidence to send the
aggravated assault charge to the jury.

¶16 Thomas testified at trial that the knife had “serrated edges,”
it “[came] out to a point,” and had “a very firm handle.” One of the
responding officers testified that when Harper’s knife was impounded as
evidence, it had to be placed in a box rather than a plastic bag because it
was “sharp and dangerous and [could] hurt somebody.” Thomas also
testified that Harper held the knife “roughly two inches” from his face and
that he felt at risk of being stabbed. From such close proximity, Harper’s
serrated and pointed knife was readily capable of causing Thomas serious
physical injury. Although the jury, after weighing the evidence, could have
found Harper not guilty, the evidence was not so lacking as to require a
judgment of acquittal. The trial testimony was sufficient for a jury to find
that Harper’s knife was a dangerous instrument, and we will not reweigh
that evidence on appeal. See Lee, 189 Ariz. at 603. The superior court did
not err in denying a judgment of acquittal.

CONCLUSION

¶17 We affirm Harper’s conviction and sentence.

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

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