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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              EDUARDO HARIM AGUILERA, JR., Appellant.

                             No. 1 CA-CR 16-0848
                               FILED 9-26-2017


           Appeal from the Superior Court in Maricopa County
                      No. CR2015-129233-001 DT
              The Honorable Margaret R. Mahoney, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Office of the Legal Advocate, Phoenix
By Dawnese C. Hustad
Counsel for Appellant
                            STATE v. AGUILERA
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Chief Judge Samuel A. Thumma and Judge James P. Beene joined.


W I N T H R O P, Judge:

¶1             Eduardo Harim Aguilera, Jr. (“Appellant”) appeals his
convictions and sentences for two counts of aggravated assault.
Appellant’s counsel has filed a brief in accordance with Smith v. Robbins,
528 U.S. 259 (2000); Anders v. California, 386 U.S. 738 (1967); and State v. Leon,
104 Ariz. 297 (1969), stating that she has searched the record on appeal and
has found no arguable question of law that is not frivolous. Appellant’s
counsel therefore requests that we review the record for fundamental error.
See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 1999) (stating that this court
reviews the entire record for reversible error). This court allowed Appellant
to file a supplemental brief in propria persona, and Appellant has done so,
raising several issues that we address.

¶2             We have appellate jurisdiction pursuant to the Arizona
Constitution, Article 6, Section 9, and Arizona Revised Statutes (“A.R.S.”)
sections 12-120.21(A)(1), 13-4031, and 13-4033(A).1 Finding no reversible
error, we affirm.

                 FACTS AND PROCEDURAL HISTORY2

¶3           On July 1, 2015, a grand jury indicted Appellant on two counts
of aggravated assault, each a class five felony. See A.R.S. §§ 13-1203, 13-
1204.

¶4           Before trial, Appellant’s counsel raised concerns as to
Appellant’s competency to stand trial, and the court ordered Appellant to


1      We cite the current version of the applicable statutes because no
revisions material to this decision have occurred since the date of the
offenses.

2     We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Appellant. See State v. Kiper,
181 Ariz. 62, 64 (App. 1994).


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                          Decision of the Court

be evaluated pursuant to Rule 11, Ariz. R. Crim. P. After reviewing the
medical evaluations, the court found Appellant understood the nature of
the proceedings and the charges brought against him, and was competent
to stand trial.

¶5            Appellant moved to represent himself in the proceedings, and
the trial court granted Appellant’s motion after verifying that Appellant
was “knowingly, intelligently, and voluntarily” waiving his right to
representation. Thereafter, before each hearing, the court asked Appellant
whether he wanted to continue to represent himself, and each time,
Appellant confirmed his decision. Appellant represented himself at trial
until closing arguments, when he asked for the assistance of his advisory
counsel.

¶6            At trial, the State presented the following evidence: On June
24, 2015, Appellant, who was in custody for charges related to a 2014
aggravated D.U.I., was brought to the Maricopa County Superior Court to
begin trial. However, Appellant’s trial was postponed due to a scheduling
conflict.

¶7           Upon hearing his trial was postponed, Appellant became
verbally combative with the court commissioner assigned to his case. The
commissioner warned Appellant that if he did not calm down he would be
removed from the courtroom. Appellant continued to be verbally
combative, and the commissioner ordered a detention officer to remove
Appellant from the courtroom.

¶8           Detention Officer Norris (“Officer Norris”) commanded
Appellant to leave and placed his hand on Appellant’s shoulder to direct
him out of the courtroom. Appellant did not comply with Officer Norris’
commands and continued arguing with the commissioner. Officer Norris
took hold of Appellant by his shirt. Appellant then reached out to grab
Officer Norris. As Officer Norris successfully pushed Appellant’s hands
away, he struck his own hands on Appellant’s handcuffs. Officer Norris
sustained abrasions on his hands from this interaction.

¶9            A second detention officer and Phoenix police officers arrived
to help Officer Norris remove Appellant from the courtroom. Appellant
refused to leave, and the officers carried Appellant out of the courtroom.
Additional officers, including Detention Officer Blood (“Officer Blood”),
helped place Appellant in a holding tank outside the courtroom.

¶10          In the holding tank, the officers commanded Appellant to his
knees in order for them to safely exit, but Appellant would not comply with


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                           STATE v. AGUILERA
                           Decision of the Court

their commands. Officer Blood eventually forced Appellant to the ground
and placed his knee on Appellant’s back to allow the other officers to exit
the holding tank. As Officer Blood removed his knee from Appellant and
began to exit the holding tank, Appellant rolled onto his back, pushing his
feet into Officer Blood’s shins several times. Officer Blood then used his
knee to hold Appellant’s legs against his body and commanded Appellant
to roll onto his stomach before Officer Blood exited the holding tank.

¶11          In his defense, Appellant presented evidence that neither
Officer Norris nor Officer Blood were seriously injured during their
interactions with Appellant. Appellant further alleged that he was
unlawfully incarcerated at the time of the assault due to what he believed
were wrongful aggravated D.U.I. charges.

¶12           The jury found Appellant guilty as charged of two counts of
aggravated assault. The trial court found, based on Appellant’s own
testimony, that Appellant had been convicted of two prior felonies. The
court sentenced Appellant to concurrent, presumptive prison terms of five
years, to be served concurrent with his six-year term for his aggravated
D.U.I. convictions. The court credited Appellant for 512 days of
presentence incarceration on each of the aggravated assault counts.
Appellant filed a timely notice of appeal.

                                 ANALYSIS

¶13          Appellant raises numerous arguments in his supplemental
brief. We address his arguments as follows.

       I.     Alleged Violation of Appellant’s Constitutional Rights

              A.     Speedy Trial Rights

¶14            Appellant argues the court violated his right to a speedy trial
under the Sixth Amendment to the United States Constitution and Article
2, Section 11, of the Arizona Constitution.

¶15           Appellant argues that his right to a speedy trial was violated
because he was subjected to a Rule 11 examination. This argument is
without merit. Although a defendant held in custody must generally be
tried within 150 days of arraignment, see Ariz. R. Crim. P. 8.2(a)(1),
exceptions to this time limit exist, including delays that result from hearings
to determine competency or intellectual disability, which are excluded from
the computation of the time limit under Rule 8.2. See Ariz. R. Crim. P. 8.4(a);
State v. Wassenaar, 215 Ariz. 565, 570, ¶ 8 (App. 2007). Appellant’s Rule 11


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                           STATE v. AGUILERA
                           Decision of the Court

hearing falls under this exception, and thus, tolls the calculation of time to
start Appellant’s trial.3

¶16            Moreover, even if Appellant is correct in claiming his trial was
untimely, there was no fundamental error that would require reversal. To
determine whether a defendant’s constitutional right to a speedy trial has
been violated, “court[s] must consider the length of the delay, whether the
defendant has demanded a speedy trial, the reason for the delay, and the
prejudice to the defendant.” State v. Tucker, 133 Ariz. 304, 307 (1982); accord
Wassenaar, 215 Ariz. at 571, ¶ 18. Out of the reasons assessed, the length of
the delay is the least important and the prejudice the defendant suffered is
the most important. Tucker, 133 Ariz. at 307. For a defendant to establish
prejudice he must show that his defense was harmed by the delay of the
trial. Id. Thus, “[a] defendant who fails to establish that his defense was
prejudiced or that he was deprived of a fair trial has not established
prejudice sufficient to warrant reversal of his conviction.” Wassenaar, 215
Ariz. at 571, ¶ 16.

¶17           Appellant has not alleged that he suffered any prejudice due
to a delay in his trial. Further, the record, viewed as a whole, does not
reflect that Appellant suffered any prejudice.

              B.     Eighth Amendment Rights

¶18           Appellant also argues the trial court violated his Eighth
Amendment right against cruel and unusual punishment. Underlying his
argument, Appellant relies on his contention that he was falsely
incarcerated and wrongfully convicted of the aggravated D.U.I. charges. At
trial, the court informed Appellant that it had no power during that
proceeding to decide any issue related to Appellant’s previous aggravated
D.U.I. charges and convictions. The court further explained that even if
Appellant was found to be wrongfully convicted or incarcerated for
aggravated D.U.I., that finding would not affect Appellant’s charges and
trial for aggravated assault. The court explained to Appellant numerous
times that his sentence and imprisonment as it related to the aggravated
D.U.I. convictions had no bearing on his aggravated assault charges. The
trial court’s explanations were legally correct, and we find no error.
Further, to the extent that Appellant wishes to challenge the




3     Appellant’s time deadline for trial was also properly tolled due to
Appellant’s own requests for continuances. See Ariz. R. Crim. P. 8.4(c), (e).


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                            STATE v. AGUILERA
                            Decision of the Court

constitutionality of the D.U.I. laws, he must do so in a separate appeal of
his aggravated D.U.I. convictions.

       II.    Sufficiency of the Evidence

¶19          Appellant appears to argue that there was insufficient
evidence to convict him of aggravated assault because neither Officer
Norris nor Officer Blood sustained substantial injury.         However,
Appellant’s argument mischaracterizes the nature of the charges.

¶20          In Count I, the State charged Appellant with intentionally,
knowingly, or recklessly causing physical injury to an employee of the
Maricopa County Sherriff’s Office acting in his official capacity. See A.R.S.
§§ 13-1203(A)(1), 13-1204(A)(8)(a). As charged, the State only needed to
prove any physical injury to Officer Norris, not serious physical injury. See
A.R.S. § 13-1203(A)(1). There is no requirement under either § 13-
1203(A)(1) or § 13-1204(A)(8)(a) that the assault victim suffer substantial,
permanent, or serious harm. Here, the State met its burden of showing that
Officer Norris suffered physical injury through testimony that he scraped
his hands and through photo evidence of the injuries. Officer Norris’
testimony that he suffered minimal pain and was able to continue working
does not preclude a finding of guilt as charged.

¶21           In Count II, the State charged Appellant with knowingly
touching Officer Blood, an employee of the Maricopa County Sheriff’s
Office acting in his official capacity, with the intent to injure, insult, or
provoke the officer. See A.R.S. §§ 13-1203(A)(3), 13-1204(A)(8)(a). Contrary
to Appellant’s assertions, the State did not need to prove injury for Count
II. Here, the State met its burden by producing evidence that Appellant’s
feet made contact with Officer Blood’s legs multiple times and by showing
that Appellant kicked or intended to kick Officer Blood.

       III.   Appellant’s Claim of Self-Defense

¶22           Appellant also argues that he was wrongfully convicted
because he was merely “standing up” for himself. However, even if
Appellant believes he acted in self-defense, this justification defense is
inapplicable in this situation.

¶23             Generally, a defendant may assert self-defense as justification
for his use of force to protect himself against another’s use or attempted use
of unlawful physical force. A.R.S. § 13-404(A). Even if Appellant is correct
in his assertion that he was wrongfully detained on June 24, 2015, he was



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                              STATE v. AGUILERA
                              Decision of the Court

still not allowed to use physical force to prevent the detention officers from
lawfully fulfilling their job duties.

       IV.    Other Issues

¶24           We have reviewed the entire record for reversible error and
find none. See Leon, 104 Ariz. at 300; Clark, 196 Ariz. at 537, ¶ 30. The
evidence presented at trial was substantial and supports the verdicts.
Appellant knowingly, intelligently, and voluntarily waived his right to
counsel, and had the assistance of advisory counsel at all stages of the
proceedings. Appellant was given the opportunity to speak at sentencing.
The proceedings were conducted in compliance with Appellant’s
constitutional and statutory rights and the Arizona Rules of Criminal
Procedure.

¶25            After the filing of this decision, defense counsel’s obligations
pertaining to Appellant’s representation in this appeal have ended.
Counsel need do no more than inform Appellant of the status of the appeal
and of his future options, unless counsel’s review reveals an issue
appropriate for petition for review to the Arizona Supreme Court. See State
v. Shattuck, 140 Ariz. 582, 584-85 (1984). Appellant has thirty days from the
date of this decision to proceed, if he desires, with a pro per motion for
reconsideration or petition for review.

                                  CONCLUSION

¶26           Appellant’s convictions and sentences are affirmed.




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




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