James E. Novak
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In a recent case before an Arizona court of appeals, the defendant asked the court to reconsider his guilty conviction for producing marijuana. Originally, the defendant was criminally charged after police officers searched his house in response to a 911 emergency call. On appeal, the defendant argued the search was warrantless, and, thus that the evidence officers found against him was illegally obtained. The higher court, considering this argument, ruled that the officers were allowed to search the defendant’s property without a warrant, given the officers’ concern that there was a potential emergency that needed their attention. The defendant’s appeal was subsequently denied.

Facts of the Case

According to the opinion, police officers involved in this case received an emergency call from 911 one evening while on patrol. The person on the other end of the phone yelled, “help!” and the officers were able to immediately trace the call to the defendant’s address. Concerned for the caller’s safety, the officers quickly drove to the defendant’s address.

When the officers arrived, they tried to enter onto the property but were blocked by a fence. Receiving no response to their warnings, the officers decided to jump the fence to enter the property. The officers jumped over the fence and did not immediately see any emergency, but instead smelled marijuana growing on the property. They noticed a marijuana grow tent, as well as a sleeping man lying on a cot with a rifle nearby. The officers left the property and obtained a search warrant, later returning to the home and finding growing marijuana plants as well as drug paraphernalia.

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A common theme in Arizona domestic violence prosecutions involves the changing stories and testimonies of alleged domestic violence victims as a case progresses toward prosecution and conviction. Often, complaining victims may exaggerate or fabricate evidence of domestic violence in response to a domestic altercation, or to offset allegations of violence against themselves when law enforcement is called to the scene of a domestic dispute. Although domestic violence is never an acceptable response to a relationship or familial dispute, unfounded allegations of domestic violence sometimes result in severe, life-altering consequences to the alleged perpetrator, and sometimes also the alleged victim as well. The Arizona Court of Appeals recently affirmed a defendant’s aggravated assault conviction for a domestic violence crime, despite the victim’s attempt to recant her initial complaint to the police from the day of the alleged incident.

The defendant in the recently decided appeal was arrested and charged with aggravated assault after he allegedly strangled and assaulted the mother of his children during an argument between the parties. Although the visual evidence of strangulation was limited, the police and prosecutors were inclined to prosecute the charges based on the victim’s initial reporting to the police. As the case approached trial, however, the victim’s story changed, and she testified at trial that she was in fact not strangled by the defendant, insinuating that her initial report to the police was an emotional response to a personal argument between the parties. The victim’s trial testimony was not persuasive to the jury in their case, and the defendant was convicted of the charges. The defendant was then sentenced to 12 years in prison.

The defendant appealed his conviction, arguing that the statements made by the victim to the investigator should not have been admitted at trial, as they were hearsay. Furthermore, the defendant argued that the evidence at trial was not sufficient to support his conviction. The appellate court rejected the defendant’s arguments, finding that the victim’s statements were admissible at trial specifically because they were inconsistent with her testimony at trial. Additionally, the appellate court gave great deference to the trial judge’s determination that there was sufficient evidence to support the conviction. As a result of the appellate rulings, the defendant will be required to serve his prison sentence.

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Last month, the Arizona Court of Appeals ruled on a defendant’s appeal in a sexual assault case. After a lengthy trial in the lower court, the defendant was found guilty of sexually assaulting his minor niece. On appeal, the defendant made several arguments, arguing the guilty verdict was unfounded and should be reversed. The court of appeals kept the guilty verdict in place, rejecting the defendant’s contentions.

Facts of the Case

According to the opinion, the victim in this case was a minor who would sometimes stay over at her cousin’s house for the evening. One night, she slept over with her cousin, sharing a room but sleeping in her own bed. During the night, her uncle, the defendant, came into the room to soothe his daughter, the victim’s cousin. The defendant was responding to his daughter’s cries, and he originally came in to make sure she was sleeping soundly. After checking on his daughter, the defendant allegedly got into bed with the victim and sexually assaulted her.

The next day, the victim told her family members what had happened. She was taken to the hospital for forensic testing, and the defendant was charged with sexual conduct with a minor. At trial, a jury found the defendant guilty and he was eventually sentenced to life in prison with the possibility of release after 35 years.

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In a recent case before the Arizona Court of Appeals, the defendant argued against his conviction for the possession or use of dangerous drugs. On appeal, the defendant argued that the two officers that found drugs on his person infringed on his constitutional right to be free from unreasonable searches and seizures. Looking at the evidence, the court ultimately disagreed with the defendant and affirmed the guilty verdict.

Facts of the Case

According to the opinion, two police officers were patrolling early one morning when they noticed a grey van circling an empty parking lot. The van’s driver then drove out of the parking lot and took an illegal turn, at which point the officers activated the car’s siren to conduct a traffic stop. The van stopped, and the officers approached the vehicle.

One of the officers immediately noticed a tied-off, plastic bag under the console. It was clear to the officer, based on his years of experience in the field, that the white, crystalized substance inside the bag was methamphetamine. The officers arrested the defendant and found methamphetamine, marijuana, and a glass pipe in his pockets. The defendant was charged with possession or use of dangerous drugs.

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Recently, an Arizona court denied a defendant’s appeal in an aggravated assault case. Originally, the defendant was convicted of two counts of aggravated assault and two counts of assisting a criminal street gang by committing aggravated assault. On appeal, the defendant argued that the trial court improperly admitted evidence showing he had exchanged Facebook messages with a member of a local gang. The court reviewed the record and ultimately concluded that the evidence was properly admitted, denying the defendant’s appeal.

Facts of the Case

According to the opinion, three officers were dispatched to a site of reported graffiti one evening. When the officers arrived, they found graffiti symbolizing one of the gangs in the local town. As they investigated, the officers spotted two men, the defendant and one other individual, approaching them. It appeared to the officers as if both men were making gang signs with their hands.

The man walking with the defendant pulled out a gun and began firing. The officers shot back, and a chase ensued. Moments later, the officers caught the defendant after seeing him boost the second individual over a wall. Both men were caught and criminally charged.

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Late last month, the Arizona Court of Appeals considered whether a defendant acquitted of a disorderly conduct charge should be granted reconsideration of a separate aggravated assault charge. The defendant involved in the case had originally been charged with both disorderly conduct and aggravated assault, but a jury acquitted him of the disorderly conduct charge and convicted him of the aggravated assault charge. In the defendant’s appeal, he argued that acquittal on one charge meant his second charge should also be reconsidered. Ultimately, the court disagreed, and the defendant’s original verdict was sustained.

Facts of the Case

According to the opinion, the defendant in this case was staying with his sister in her home for a few days, along with his two children and her three children. Early one morning, the defendant was in the home, yelling at his youngest child. The defendant’s sister, watching the incident unfold, stepped in and demanded that the defendant stop yelling.

After a few moments of arguing, the defendant balled up his fists and began sprinting toward his sister. He backed her into a wall, at which point he dropped his forehead into her face. The headbutt fractured the sister’s nasal bone. One of the children immediately called 911, and the defendant was charged with aggravated assault as well as disorderly conduct.

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An area of criminal law that ordinary Americans are most familiar with involves Miranda rights. A defendant’s Miranda rights are protected by the Fifth Amendment, which prohibits the government from forcing anyone to testify against themselves or be coerced into making incriminating statements to law enforcement officers. Generally speaking, the law requires police officers to verbally give Miranda warnings before questioning a defendant who has been taken into custody. If a police officer obtains a confession from an in-custody suspect without giving the proper Miranda warnings first, the confession can be kept out of court. These protections are not absolute, however, as evidenced by a recent Arizona Court of Appeals decision that affirmed a defendant’s conviction even though police obtained statements from him in violation of Miranda.

According to the facts discussed in the appellate opinion, the defendant was riding an unregistered motorcycle when police attempted to stop him. The defendant attempted to flee the pursuing officers when he crashed his motorcycle into a wall and was apprehended. Shortly after the crash, the defendant told the police that he didn’t stop because he didn’t want the motorcycle to be impounded. The defendant was arrested and charged with unlawful flight from a law enforcement vehicle. During later questioning, the defendant was given his Miranda rights and again confessed to the crime of fleeing from the police.

Before trial, the defendant’s counsel attempted to suppress his statements to police, arguing that the defendant was in custody after the crash and that he was questioned by police without hearing his Miranda rights, and the violation warranted the evidence’s suppression. The trial court ruled against the defendant and ultimately convicted him as charged. The defendant appealed the ruling to the Arizona Court of Appeals, pressing the Miranda issue further.

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Law enforcement agencies and prosecutors have used wiretaps and other electronic surveillance methods to gather evidence of criminal activity for over a century. The privacy issues involved in listening in on the conversations of private citizens invoke constitutional protections that have been addressed by both Arizona and Federal courts. The Arizona Court of Appeals recently affirmed a defendant’s conviction for drug trafficking offenses, rejecting his contention that the wiretap evidence used to convict him was obtained in violation of federal law.

According to the facts discussed in the appellate opinion, the defendant had been a suspect in an ongoing drug trafficking investigation. In 2016, the Maricopa County attorney’s office submitted a request for wiretap authorization to the superior court, which was granted. Based on the evidence obtained by listening to the defendant’s phone conversations, he was arrested and charged with several drug trafficking offenses. Before trial, the defendant’s attorney attempted to suppress the wiretap evidence, arguing that a recently decided federal court case set the standards for wiretap applications, and the one submitted in the defendant’s case was not up to the standard

The federal law concerning wiretap applications was recently clarified by the U.S. 9th Circuit Court of Appeals, which has jurisdiction over Arizona. The 9th Circuit determined that a valid application for a wiretap must be signed off by the “principle prosecuting attorney” for the jurisdiction where the wiretap is requested. The application, in this case, was signed off by a deputy district attorney, not the principal prosecuting attorney for Maricopa County.

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In a recent appeals court opinion in an Arizona child sex crimes case, the defendant unsuccessfully appealed his convictions and sentences for ten counts of sexual exploitation of a minor, class two felonies, and dangerous crimes against children. In the appeal, the defendant argued that his motions to suppress evidence were improperly denied by the trial court. The appeals court affirmed the trial court decision, finding that the files searched by law enforcement did not need to be limited to the certain files named by the defendant and that there was probable cause for the search of the defendant’s desktop computer. Subsequently, the appeals court ruled that the defendant did not show that the denial of his motion to suppress was not an abuse of discretion.

Facts of the Case

According to the opinion, in February of 2015, the Internet Crimes Against Children Taskforce (ICAC) obtained some downloads of child pornography from an internet protocol (“IP”) address that used a peer-to-peer network program called Torrent. After further investigation, a detective of the ICAC learned that the IP address was assigned to a residence in Mesa, AZ. The detective then obtained a search warrant for the home in question.

A search of the home did not produce evidence of illegal activity, but when officers asked the homeowner whether anyone else had access to his home’s secured Wi-Fi connection, he explained that his cousin, the defendant, had stayed with him in February of 2015. The detective then orchestrated a call between the homeowner and the defendant. On the call, the defendant claimed that a virus on his computer had downloaded the illegal images and he had not deleted them as he should have.

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In a recent case coming out of an Arizona court, the defendant unsuccessfully appealed his convictions and sentences for child molestation. In his argument, the defendant focused on the expert testimony that the prosecution used during his trial, alleging that this testimony was overly broad and prejudicial towards the jury. In considering the appeal, the court declared that the expert testimony was appropriate given the circumstances of the case, thus denying the defendant’s appeal.

Facts of the Case

According to the opinion, the defendant in this case was a family friend of the victim, who was born in 2003. The victim had known the defendant to be like an uncle to her, and between the years of 2013 and 2015, the victim saw the defendant regularly.

During those years, the defendant molested the victim several times. He forced the child to perform oral sex on him; he threatened the victim by saying that if she told anyone about the abuse, he would hurt her grandmother; and he forced himself on the victim by inappropriately touching her on multiple occasions. When the victim moved in with her father in 2015, the abuse stopped. A few years later, however, the victim texted the defendant saying that she was still negatively affected by the abuse she had undergone.

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Law Office of James Novak, PLLC
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Tempe, AZ 85282
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