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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    ERIC LAWRENCE LOYD, Appellant.

                             No. 1 CA-CR 15-0033
                               FILED 1-7-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-115580-001
                 The Honorable Jo Lynn Gentry, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Maricopa County Office of the Legal Advocate, Phoenix
By Kerri L. Chamberlin
Counsel for Appellant
                             STATE v. LOYD
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Jon W. Thompson and Judge Lawrence F. Winthrop joined.


H O W E, Judge:

¶1             Eric Lawrence Loyd appeals his consecutive sentences for
aggravated assault of a police officer and resisting arrest. Loyd argues that
the trial court improperly imposed consecutive sentences because the two
offenses constituted a single act. For the following reasons, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2             In April 2014, a Maricopa County Sheriff’s deputy observed
Loyd driving a motorized scooter with one hand and swerving between
lanes. The deputy followed Loyd, and after checking the license plate and
discovering that its registration had expired, decided to stop him. Loyd was
“cordial” toward the deputy at first, but when the deputy handed Loyd
four civil traffic citations relating to lack of insurance and a suspended
license plate, Loyd became irate and began yelling profanities. The deputy
told Loyd that he would receive another citation if he rode the scooter
again, so Loyd pushed the scooter away. About twenty-five minutes later,
however, the deputy saw Loyd riding the scooter again, so he pulled Loyd
over.

¶3             Loyd got off of his scooter and yelled to a nearby elderly
couple to call 911 because the deputy was harassing him. Seeing that Loyd’s
yelling caused the woman to become distressed, the deputy decided to
arrest Loyd for disorderly conduct. The deputy asked Loyd to walk to the
deputy’s vehicle and place his hands on the hood, and Loyd complied. The
deputy told Loyd that he was under arrest and took Loyd’s hands behind
his back one at a time.

¶4           Holding Loyd’s thumbs together, the deputy then reached to
place the handcuffs on Loyd’s left hand. As he did so, Loyd stated, “I’m not
going back to prison,” and used his body to push off the deputy’s vehicle
and back against the deputy. Loyd also “flung his arms up,” knocking the
deputy’s sunglasses off. The deputy, surprised by Loyd’s strength in
pushing against him, latched onto Loyd’s left arm.



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                              STATE v. LOYD
                            Decision of the Court

¶5            To gain control of Loyd and complete the arrest, the deputy
decided to get Loyd on the ground. He knew that by doing so, he would
better control Loyd and prevent him from fighting and kicking. But after
the deputy took Loyd to the ground, Loyd began to flail his right arm, kick,
and push, doing “anything possible to get from underneath” the deputy.
Loyd’s movements caused him and the deputy to move in circles on the
ground as the deputy continued to try to keep Loyd down.

¶6            At one point during the struggle, the deputy felt Loyd try to
pull the deputy’s gun out of its holster. Fearing that the elderly couple and
other witnesses may be harmed if Loyd got the deputy’s gun, the deputy
used his right shoulder to keep Loyd from doing so. The struggle to control
Loyd on the ground continued for four minutes until other deputies arrived
and arrested him.

¶7            The State subsequently charged Loyd with aggravated
assault by exercising control of a peace officer’s firearm, resisting arrest, and
disorderly conduct. At the jury trial, the deputy testified that as a result of
the struggle, he sustained a strained right shoulder and several scrapes and
bruises on his arms and knees. The jurors acquitted Loyd of aggravated
assault by exercising control of a peace officer’s firearm, but convicted him
of the lesser included offense of aggravated assault of a police officer,
resisting arrest, and disorderly conduct.

¶8            The trial court sentenced Loyd to five years’ imprisonment for
aggravated assault with 96 days’ presentence incarceration credit. For
resisting arrest, the trial court suspended sentencing and imposed a
consecutive term of three years’ supervised probation. For disorderly
conduct, the trial court sentenced Loyd to three months’ incarceration, but
granted an absolute disposition because Loyd’s presentence incarceration
credit covered that time. Loyd timely appealed.

                                DISCUSSION

¶9             Loyd argues that the trial court incorrectly imposed
consecutive sentences for his convictions of aggravated assault of a police
officer and resisting arrest because they constituted a single act. Loyd did
not object to the imposition of consecutive sentences at trial, so we review
his claim only for fundamental error. State v. Carlson, 237 Ariz. 381,
400 ¶ 78, 351 P.3d 1079, 1098 (2015). Imposition of an illegal sentence
constitutes fundamental error. State v. Martinez, 226 Ariz. 221, 224 ¶ 17,
245 P.3d 906, 909 (App. 2011). To prevail under fundamental error, Loyd
must establish that fundamental error exists and that the error caused him



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                              STATE v. LOYD
                            Decision of the Court

prejudice. State v. Henderson, 210 Ariz. 561, 567 ¶ 20, 115 P.3d 601, 607 (2005).
Thus, we must first determine whether the trial court committed some
error. State v. Lavers, 168 Ariz. 376, 385, 814 P.2d 333, 342 (1991). Moreover,
we review de novo whether the trial court complied with A.R.S. § 13–116 in
imposing consecutive sentences. State v. Cotten, 228 Ariz. 105, 108 ¶ 8,
263 P.3d 654, 657 (App. 2011). Because Loyd’s convictions arose from
multiple acts, the trial court did not err in imposing consecutive sentences.

¶10            In Arizona, “an act . . . which is made punishable in different
ways by different sections of the laws may be punished under both, but in
no event may sentences be other than concurrent.” A.R.S. § 13–116. In
determining whether a defendant has committed a single act pursuant to
this statute, the court considers three factors. Carlson, 237 Ariz. at 400 ¶ 80,
351 P.3d at 1098. First, the court must decide which of the two crimes is the
“ultimate charge—the one that is at the essence of the factual nexus and that
will often be the most serious of the charges.” State v. Gordon, 161 Ariz. 308,
315, 778 P.2d 1204, 1211 (1989). The court then considers the facts of each
crime separately and “subtract[s] from the factual transaction the evidence
necessary to convict on the ultimate charge.” Id. If the remaining evidence
satisfies the secondary crime’s elements, the offenses may constitute
multiple acts and consecutive sentences may be permissible. Id.

¶11            Second, the court considers whether “it was factually
impossible to commit the ultimate crime without also committing the
secondary crime” given the entire transaction. Id. If not, the offenses may
constitute multiple acts. But if so, the court thirdly considers whether the
defendant’s conduct in committing the secondary crime “caused the victim
to suffer an additional risk of harm beyond that inherent ultimate crime.”
Id. If the conduct caused an additional harm, then the court should find that
the defendant committed multiple acts.

¶12           Although only two factors are necessary to properly impose
consecutive sentences, all three factors show that Loyd committed multiple
acts. Here, the ultimate charge is aggravated assault, and after subtracting
the necessary evidence for that conviction, sufficient evidence remains to
convict Loyd of resisting arrest. To commit aggravated assault of a police
officer, one must commit assault and know or have reason to know that the
person assaulted was a peace officer engaged in the execution of official
duties. A.R.S. § 13–1204(A)(8)(a). The facts necessary to support the
aggravated assault conviction are that Loyd kicked, pushed, and flailed his
arm and legs after the deputy brought him to the ground, causing the
deputy to sustain a sprained shoulder, bruises on his arms, and scrapes on
his knees. Additionally, Loyd had reason to know that the deputy was a


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                              STATE v. LOYD
                            Decision of the Court

peace officer executing official duties because the deputy had just pulled
him over twice, issued him four civil traffic citations, and told Loyd that he
was under arrest for disorderly conduct. Subtracting this evidence from the
factual transaction, sufficient evidence remains to convict Loyd of resisting
arrest. To commit resisting arrest, one must intentionally prevent a person
known as a police officer from effecting an arrest by use of physical force.
A.R.S. § 13–2508. Here, Loyd pushed back against the deputy with his body,
stated that he was “not going back to prison,” and flung his arms up,
knocking the deputy’s sunglasses off. Thus, because this remaining
evidence satisfies the elements of resisting arrest, the first factor suggests
that Loyd committed multiple acts.

¶13            Second, given the entire transaction, it was not factually
impossible for Loyd to commit aggravated assault without also resisting
arrest. Loyd did not have to push back on the officer or fling his arms up to
commit the assault on the deputy. Indeed, Loyd could have assaulted and
injured the deputy by kicking and flailing his legs after the deputy had
effected the arrest. Cf. State v. Urquidez, 213 Ariz. 50, 52 ¶ 9, 138 P.3d 1177,
1179 (App. 2006) (concluding that it would have been factually impossible
for the defendant, a prohibited possessor, to commit aggravated assault
with a deadly weapon without also committing prohibited possession of a
deadly weapon). Thus, because committing one act did not require him to
commit the other, the second factor also suggests that Loyd committed
multiple acts.

¶14           Although we can conclude that the trial court properly
imposed consecutive sentences because the first two factors sufficiently
suggest that Loyd committed multiple acts, the third factor also supports
this conclusion. Specifically, Loyd’s conduct in resisting arrest caused a risk
of harm to the deputy in addition to the harm caused by committing
aggravated assault. Loyd created a risk of physical injury to the deputy by
using his body to push off of the deputy’s vehicle and against the deputy.
Loyd also flung his arms up, knocking the deputy’s sunglasses off. This risk
of physical harm was separate from and in addition to the risk and harm
caused by Loyd’s kicking and pushing the deputy while on the ground.
Accordingly, because all three factors weigh in favor of viewing the two
offenses as discrete and separate acts, the trial court did not err in imposing
consecutive sentences under A.R.S. § 13–116.




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                     STATE v. LOYD
                   Decision of the Court

                     CONCLUSION

¶15   For the foregoing reasons, we affirm.




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