                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

           SANTIAGO LUIS ESTRADA-RESENDIZ, Appellant.

                             No. 1 CA-CR 13-0872
                              FILED 09-04-2014


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201201194
              The Honorable Lawrence C. Kenworthy, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eliza C. Ybarra
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Edward F. McGee
Counsel for Appellant
                     STATE v. ESTRADA-RESENDIZ
                         Decision of the Court



                      MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Kenton D. Jones joined.


T H U M M A, Judge:

¶1             Defendant Santiago Luis Estrada-Resendiz appeals his
convictions and sentences on two counts of disorderly conduct and two
counts of reasonable apprehension aggravated assault, all dangerous felony
offenses, arising from an incident in which he drove a tractor into oncoming
traffic and chased motorists on Highway 80 in Yuma County. From
Estrada-Resendiz’s timely notice of appeal, this court has jurisdiction
pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1), 13-
4031, and 13-4033(A) (2014).1

¶2              Estrada-Resendiz argues the superior court erred in denying
his motions for judgment of acquittal on the charge of aggravated assault
against Yuma County Deputy Sheriff Pesce. A motion for judgment of
acquittal should be granted when, “after the evidence on either side is
closed, . . . there is no substantial evidence to warrant a conviction” for a
count. Ariz. R. Crim. P. 20(a). “[T]he relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.” State v. West, 226 Ariz. 559, 562 ¶16, 250 P.3d
1188, 1191 (2011) (citation omitted). This court reviews de novo the denial
of a motion for judgment of acquittal and the sufficiency of the evidence to
support a conviction. West, 226 Ariz. at 562 ¶15, 250 P.3d at 1191.

¶3           Estrada-Resendiz was charged with aggravated assault, with
the State alleging he “intentionally put another person in reasonable
apprehension of immediate physical injury,” using a “dangerous
instrument,” to wit, the tractor. See A.R.S. §§ 13-1203(A)(2), 13-1204(A)(2).
Estrada-Resendiz argues the evidence failed to establish that his conduct
placed Pesce “in reasonable apprehension of imminent physical injury.”
The offense requires proof that the victim actually was in reasonable
apprehension of imminent physical injury. State v. Angle, 149 Ariz. 499, 504,

1 Absent material revisions after the relevant dates, statutes cited refer to
the current version unless otherwise indicated.


                                     2
                      STATE v. ESTRADA-RESENDIZ
                          Decision of the Court

720 P.2d 100, 105 (App. 1985), vacated in other part by State v. Angle, 149 Ariz.
478, 479, 720 P.2d 79, 80 (1986). Testimony that the victim was actually
apprehensive, however, is not required; circumstantial evidence may
establish that element of the offense. State v. Wood, 180 Ariz. 53, 66, 881 P.2d
1158, 1171 (1994).

¶4            The circumstantial evidence here was sufficient to establish
that Pesce experienced reasonable apprehension of imminent physical
injury, notwithstanding his testimony that he was not actually thinking
about being injured at the time. In the first incident, Pesce testified that, as
he started to get out of his vehicle to confront Estrada-Resendiz, who was
driving the tractor, “[a]ll of the sudden he starts to pull forward. So I jump
back in the vehicle . . . [and] go around to the north.” In the second incident,
Estrada-Resendiz suddenly turned the tractor around and drove straight
toward Pesce: “As I go to reach the door handle to open the door, that
tractor snapped around faster than I’ve ever seen a vehicle snap around
before, and he’s coming directly at me, sideways.” Thinking that the tractor
was going to run him over, Pesce “slam[med]” his vehicle into drive, and
maneuvered around the tractor again. Pesce testified that he was inside the
car “when he snapped that tractor around and tried to run over my car . . .
he was headed straight for the driver’s door.” Pesce testified that he was
not thinking about being injured during the second incident.

¶5            The jury reasonably could conclude from Pesce’s testimony,
describing the erratic maneuvers by the tractor being driven by Estrada-
Resendiz and the immediate measures he took to avoid being hit, that he
was in reasonable apprehension not only of damage to the vehicle, but of
injury to himself, both outside the vehicle (the first incident), and inside the
vehicle (the second incident). Because this evidence was sufficient to
support the convictions, the superior court properly denied the motions for
judgment of acquittal. See Ariz. R. Crim. P. 20(a).

¶6            Estrada-Resendiz also argues the superior court erred in
denying his request for a jury instruction on misdemeanor disorderly
conduct for “engag[ing] in fighting, violent or seriously disruptive
behavior” with intent to disturb the peace under A.R.S. § 13-2904(A)(1), as
a lesser-included offense of aggravated assault. The court instructed on
felony disorderly conduct for “recklessly handl[ing] . . . a dangerous
instrument” with intent to disturb the peace under A.R.S. § 13-2904(A)(6),
but denied the requested misdemeanor instruction under A.R.S. § 13-
2904(A)(1) on the ground it was not a lesser-included offense of aggravated
assault. Whether a crime is a lesser-included offense is a legal question



                                       3
                     STATE v. ESTRADA-RESENDIZ
                         Decision of the Court

subject to de novo review. State v. Cheramie, 218 Ariz. 447, 448, ¶¶ 6–8, 189
P.3d 374, 375 (2008).

¶7            The superior court did not err in not giving the requested
misdemeanor disorderly conduct jury instruction. “To constitute a lesser-
included offense, the offense must be composed solely of some but not all
of the elements of the greater crime so that it is impossible to have
committed the crime charged without having committed the lesser one.”
State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983). Reasonable
apprehension aggravated assault, as charged in this case, has as its
elements: (1) intentionally placing a person in reasonable apprehension of
imminent physical injury by (2) use of a dangerous instrument. A.R.S. §§
13-1203(A)(2), 13-1204(A)(2). Misdemeanor disorderly conduct has as its
elements: (1) intentionally or knowingly disturbing a person’s peace or
quiet by (2) engaging in fighting, violent or seriously disruptive behavior.
A.R.S. § 13-2904(A)(1). It is possible to commit reasonable apprehension
aggravated assault without committing misdemeanor disorderly conduct;
use of a dangerous instrument does not necessarily involve fighting, violent
or seriously disruptive behavior. Cf. State v. Angle, 149 Ariz. 478, 479, 720
P.2d 79, 80 (1986) (adopting dissenting opinion in State v. Angle, 149 Ariz.
499, 720 P.2d 100 (App. 1985), holding that A.R.S. § 13-2904(A)(6) was a
lesser-included offense of reasonable apprehension aggravated assault
under the facts of that case). Accordingly, the court did not abuse its
discretion in declining to give the requested instruction.

¶8            Finding no error, Estrada-Resendiz’s convictions and
sentences are affirmed.




                                 :gsh



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