In an unpublished Arizona appellate decision, a defendant appealed his convictions and the related sentenced for aggravated assault and armed robbery. The case arose when he came up to a cash register in a liquor store in 2012 and demanded money while threatening the clerk with a handgun. He got more than $450 and started to go. The clerk picked up a baseball bat and told him to stop, and in response, the defendant fired his gun at him, barely missing. He fled.
The police didn’t find the defendant right away. However, a few days later, the clerk was working nearby and saw a customer who looked like the defendant. He called the police, and when an officer looked at the surveillance video, he told the officer he wasn’t sure it was him. The detective decided that the customer in the video wasn’t the defendant.
Based on the clerk’s description, the police later identified two other people of interest, neither of whom had previously committed a robbery. An anonymous tip turned up the defendant. The officer showed the victim a six-photograph photographic lineup. The victim had no problem identifying the defendant.
The defendant was indicted for aggravated assault as a Class 3 felony and dangerous offense, as well as armed robbery as a Class 2 felony and dangerous offense. The defendant represented himself but chose not to testify. He argued that he was misidentified as the robber and that the police investigation wasn’t adequate. He was found guilty of both crimes, and consecutive prison terms of 12 and 8.5 years were imposed.
The defendant appealed. He argued that the lower court had made a mistake in denying his oral motion for an identification expert. He believed that this expert, if allowed, would have been able to talk about inconsistencies in the witness’ memory and could have used facial recognition measurements to compare the robber with the subject. The appellate court found that nothing in the record showed the defendant had asked for an identification expert, and he hadn’t provided any laws or other authority to support the claim that the court should have appointed an identification expert on its own. The defendant, representing himself, had cross-examined the clerk about his vision impairment and inconsistencies in testimony. Therefore, he couldn’t show any fundamental errors that resulted in prejudice to him.
The defendant was in custody up to the time of trial. In a pre-trial conference, he’d been concerned about his Taser belt showing in front of the jury and believed it would cause him unnecessary pressure. He wanted to represent himself at trial without the belt. This request was denied. The judge denied the request, noting that the jury wouldn’t be able to tell the belt was on. The defendant still objected on the basis of mental duress. When he was overruled again, he stated he was assured.
On appeal, the defendant argued that it was an error for the court to require him to wear the belt. He argued that this kept him from being alert and vocal during the trial, and therefore he was denied a fair trial and his constitutional right to equal protection. The appellate court disagreed, noting that he was comfortable wearing a security vest at trial and was assured that there would be no improper activation of the vest. The record showed that he had examined witnesses and made arguments to the jury with confidence.
The defendant also argued that he should have been allowed to inquire into the prior convictions of two investigative leads whom the police determined weren’t suspects. The appellate court found that evidence about their prior convictions was irrelevant to his defense of misidentification.
The defendant was subject to sentence enhancement under A.R.S. § 13-704(A) for using a handgun while robbing the store. He argued that the lower court shouldn’t have used the aggravating circumstances to impose sentences greater than what was presumptive because the use of a gun was an element of armed robbery and aggravated assault. The appellate court disagreed. A jury could convict the defendant of armed robbery, regardless of whether he threatened to inflict a serious physical injury; it could find he’d used force to coerce property away from someone else. Aggravated assault occurs when someone uses a deadly weapon to intentionally put someone else in reasonable apprehension of physical injury, but “reasonable apprehension” doesn’t necessarily mean that the defendant threatened to inflict serious injuries.
The defendant also argued it was improper to sentence him using consecutive sentences because both charges were from the same act. The court explained that when two crimes are one act, a concurrent sentence can be imposed. If the crimes are two or more acts, consecutive sentences may be imposed under a three-part test. In this case, the armed robbery and aggravated assault were two separate acts. Brandishing the handgun while forcing the clerk to hand over money was armed robbery. In addition, the defendant fired the gun at the clerk, which was aggravated assault.
The convictions and sentences were affirmed.
Although the defendant’s appeal was not successful in this case, there may be many different defenses appropriate to your particular case. It is important to have all of the facts of your case reviewed by an experienced criminal defense attorney. If you face violent crime charges in Tempe, Chandler, Gilbert, or Scottsdale, consult attorney James E. Novak. He is an aggressive former Maricopa County Prosecutor who will use insights obtained as a prosecutor to determine a strong strategy. He offers a free initial consultation for those facing active criminal charges in his area. If you have been charged with a crime, call or contact The Law Office of James Novak at (480) 413-1499 and speak directly with Mr. Novak.
- A.R.S. § 13-1204 (Aggravated assault)
- ARS § 13-1902 (Robbery)
- Maricopa County Sheriff’s Office | Jail Information for Families
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