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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                       DAVID ELDRIDGE, Appellant.

                             No. 1 CA-CR 14-0400
                               FILED 9-15-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-419627-001
               The Honorable Warren J. Granville, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender's Office, Phoenix
By Cory Engle
Counsel for Appellant
                           STATE v. ELDRIDGE
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge John C. Gemmill joined.


J O H N S E N, Judge:

¶1            David Eldridge was convicted of two counts of aggravated
assault, Class 3 dangerous felonies, arising out of a road-rage incident. For
the reasons below, we affirm the convictions and resulting sentences.

             FACTS AND PROCEDURAL BACKGROUND

¶2            While both were driving, Eldridge and another driver became
involved in an altercation. The other driver testified Eldridge brandished a
knife and threatened to kill him and his girlfriend, who was a passenger in
the other driver’s car. Eventually both drivers stopped, and Eldridge
stabbed the other driver.

¶3            The State charged Eldridge with two counts of aggravated
assault. The first count alleged Eldridge used a knife, "a deadly weapon or
dangerous instrument," to physically injure the other driver. The second
count alleged Eldridge used a knife, "a deadly weapon or dangerous
instrument," to place the other driver "in reasonable apprehension of
imminent physical injury." After the jury found Eldridge guilty of both
charges, the superior court ruled both convictions necessarily included
dangerousness findings because they both involved the use of a knife.
Accordingly, the court denied Eldridge’s request to have the jury to decide
the issue of dangerousness, and sentenced Eldridge to concurrent seven-
year terms of incarceration.

¶4            We have jurisdiction over Eldridge’s timely appeal pursuant
to Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2015), 13-
4031 (2015), and 13-4033(A)(1) (2015).1




1      Absent material revision after the date of an alleged offense, we cite
a statute's current version.


                                     2
                            STATE v. ELDRIDGE
                            Decision of the Court

                               DISCUSSION

¶5           On appeal, Eldridge argues only that the superior court erred
by denying his request to submit to the jury the issue of whether his two
convictions were dangerous offenses. Because the issue presented is one of
law, our review is de novo. State v. Lizardi, 234 Ariz. 501, 504, ¶ 12 (App.
2014).

¶6            Pursuant to A.R.S. §§ 13-704 (2015) and -105(13) (2015), the
sentencing range for a repetitive offense is enhanced if the offense is
dangerous, meaning that it involved "the discharge, use or threatening
exhibition of a deadly weapon or dangerous instrument." In Apprendi v.
New Jersey, 520 U.S. 466, 490 (2000), the Supreme Court held that "[o]ther
than the fact of a prior conviction, any fact that increases the penalty for a
crime beyond the prescribed statutory maximum must be submitted to a
jury, and proved beyond a reasonable doubt." Under this rule, however,
the court may impose a sentence based on "facts reflected in the jury verdict."
Blakely v. Washington, 542 U.S. 296, 303 (2004).

¶7            In State v. Ring, 204 Ariz. 534, 561, ¶ 88 (2003), the Arizona
Supreme Court held there is no error under Apprendi/Blakely if the
sentencing factor is implicit in the jury’s verdict of guilt. Eldridge
acknowledges Ring, but asserts that our supreme court's decision in that
case ignores that juries sometimes render inconsistent verdicts. He argues
that as a consequence, the fact that a sentencing factor is implicit in a guilty
verdict does not necessarily mean that, having reached a guilty verdict, a
jury always would come to the same conclusion if it were asked to decide
the issue separately for sentencing. Eldridge’s argument fails, however,
because, as noted above, there is no error under Blakely when the factors
necessary to establish a sentencing factor are implicit in the jury’s verdict.
In any event, we are bound by Ring and so reject Eldridge’s argument and
reaffirm that when a finding of dangerousness is essential to a conviction,
the jury need not be asked separately to consider whether the crime is
dangerous. See State v. Larin, 233 Ariz. 202, 212, ¶ 18 (App. 2013); State v.
Gatliff, 209 Ariz. 362, 366, ¶ 18 (App. 2004) (conviction of arson of an
occupied structure required proof that fire was dangerous).

¶8            Here, on each of the two charges, the jury was instructed that
it could convict Eldridge only if it found, inter alia, that he "used a
dangerous instrument or weapon." Accordingly, as the State argues, the
jury necessarily found beyond a reasonable doubt that Eldridge used a
dangerous instrument or weapon in committing both crimes. Because the
jury necessarily concluded that Eldridge used a dangerous instrument or


                                       3
                         STATE v. ELDRIDGE
                         Decision of the Court

weapon in committing each of the two crimes, the superior court did not
err in denying Eldridge’s request to submit the issue of dangerousness to
the jury.

                            CONCLUSION

¶9           We affirm Eldridge’s convictions and resulting sentences.




                                :ama




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