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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     RICHARD B. TIMLICK, Appellant.

                             No. 1 CA-CR 18-0762
                               FILED 8-27-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-002499-001
             The Honorable Jacki Ireland, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Thomas Baird
Counsel for Appellant

Richard B. Timlick, Buckeye
Appellant
                             STATE v. TIMLICK
                             Decision of the Court



                        MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.


P E R K I N S, Judge:

¶1             Richard B. Timlick timely filed this appeal in accordance with
Anders v. California, 386 U.S. 738 (1967) and State v. Leon, 104 Ariz. 297 (1969),
following his convictions for aggravated assault, a class 2 felony, driving
under the influence of alcohol while impaired to the slightest degree, a class
1 misdemeanor, driving under the influence of alcohol with a blood alcohol
concentration (“BAC”) of 0.08 or greater, a class 1 misdemeanor, and
unlawful flight from law enforcement in a vehicle, a class 5 felony. Timlick’s
counsel has searched the record on appeal and found no arguable question
of law that is not frivolous. See Anders, 386 U.S. at 744; State v. Clark, 196
Ariz. 530, 537, ¶ 30 (App. 1999). Timlick filed a supplemental brief arguing
the prosecutor misstated evidence and improperly commented on
Timlick’s silence during closing arguments. Timlick also argues that the
court erred in failing to give a lesser-included offense instruction and by
considering non-historical prior felonies at sentencing. Finally, Timlick
argues the verdict forms and jury instructions created confusion for the jury
as to the classification of the aggravated assault charge. Counsel now asks
this court to search the record for fundamental error. After reviewing the
entire record, we affirm Timlick’s convictions and resulting sentences.

            FACTUAL AND PROCEDURAL BACKGROUND

¶2             On March 14, 2016, around 5:00 pm Officer Dufresne
responded to a 9-1-1 call made by Timlick. Dufresne pulled up next to
Timlick’s car in his marked police vehicle and spoke with Timlick for a
moment. As a second officer arrived, Timlick pulled away and Dufresne
activated his emergency lights and siren and gave chase. A short time into
the chase, Timlick did a U-turn and drove back toward Dufresne and the
other pursuing officer. Timlick then crossed the center line into Dufresne’s
lane and approached him head-on. Dufresne switched lanes to avoid
Timlick’s car at which point Timlick adjusted to again approach Dufresne
head-on. Dufresne took additional evasive action and subsequently
testified that Timlick passed “very close” to him and that “it appeared that
[Timlick] was trying to actually purposely ram” him. Dufresne testified that
he was in fear for his life because of Timlick’s actions.


                                        2
                            STATE v. TIMLICK
                            Decision of the Court
¶3            After Timlick passed Dufresne, the chase continued to a
commercial parking lot. Both officers pursued Timlick through the parking
lot and back onto the street until eventually terminating the pursuit out of
concern for public safety. A police sergeant in an unmarked vehicle located
Timlick shortly after the initial pursuit ended. The sergeant followed
Timlick until Timlick parked and left his car. The sergeant identified
himself and told Timlick to “get on the ground” multiple times until
Timlick started running toward a nearby mall. The sergeant then used a
TASER on Timlick and another officer arrested Timlick. The arresting
officer and a detective who interrogated Timlick that evening later testified
that they noticed signs Timlick had been drinking. The arresting officer
asked Timlick to submit to a blood draw and, when he refused, obtained a
warrant and took a sample of Timlick’s blood for later testing.

¶4            The State charged Timlick with aggravated assault, two
counts of driving under the influence of alcohol, and unlawful flight from
law enforcement. At trial, multiple officers testified and the forensic
scientist who tested Timlick’s blood testified about the results of those tests
and her analysis. The forensic scientist testified that Timlick had a BAC of
0.150, more than two hours after his initial contact with Dufresne and, using
retrograde analysis, that Timlick had a BAC between 0.156 and 0.169 within
two hours of driving. The jury found Timlick guilty on all counts and
subsequently found Timlick’s aggravated assault charge to be a dangerous
offense.

                                DISCUSSION

¶5              The record reveals sufficient evidence from which the jury
could determine, beyond a reasonable doubt, that Timlick is guilty of the
charged offenses. The record further reflects that all proceedings were
conducted in compliance with the Arizona Rules of Criminal Procedure,
and that Timlick was represented by counsel at all stages of the proceedings
and was present at sentencing. See State v. Conner, 163 Ariz. 97, 104 (1990)
(right to counsel); State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be present
at critical stages). Timlick was not present for the trial or the
pronouncement of the jury’s verdict because he voluntarily absented
himself from trial. See Bohn, 116 Ariz. at 503 (waiver of right to be present
at critical stages). At sentencing, Timlick had the opportunity to speak on
his behalf and the court stated on the record the factors it considered in
imposing the sentence. See Ariz. R. Crim. P. 26.9, 26.10. The sentence
imposed was within the statutory limits. See A.R.S. §§ 13-701 to -709.

¶6          The arguments raised by Timlick in his supplemental brief do
not change our analysis as they are without merit. First, though Timlick


                                       3
                            STATE v. TIMLICK
                            Decision of the Court
alleges the State improperly characterized evidence in closing arguments,
the record belies this allegation. A detective that interviewed Timlick after
his arrest testified that Timlick admitted he drove at the pursuing police
officers but claimed he did not intend to ram them. In closing, the
prosecutor characterized Timlick’s statement to the detective as an
“admission” that Timlick “intentionally drove at the officers.” Based on the
detective’s testimony, Timlick admitted to driving at the officers and only
suggested that he did not intend to ultimately ram them. He did not claim
he unintentionally drove at the officers.

¶7            Second, Timlick argues the State improperly commented on
his silence during closing arguments. During closing, the prosecutor
explained that to prove the driving under the influence charges, the State
had to prove Timlick was driving and said “[w]e’ve heard no evidence
otherwise.” Though under different circumstances such statements could
amount to commenting on a defendant’s silence, this single statement
regarding evidence that could have been challenged in numerous ways
does not rise to the level of a comment “calculated to direct the jurors’
attention to the defendant’s exercise of his Fifth Amendment privilege.”
State v. Hughes, 193 Ariz. 72, 87, ¶ 64 (1998) (quoting State v. McCutcheon,
159 Ariz. 44, 45 (1988)). Thus, the passing reference was not a comment,
directly or indirectly, on Timlick’s decision not to testify.

¶8            Third, Timlick argues the trial court erred in refusing to give
a lesser-included offense instruction on the aggravated assault charge. A
defendant is entitled to an appropriate lesser-included offense instruction
on request and if supported by the evidence. Ariz. R. Crim. P. 21.4(a).
Timlick did not request any such instruction and the court did not err in
declining to sua sponte instruct the jury on a lesser-included offense. Id.; see
also State v. Gipson, 229 Ariz. 484, 487, ¶ 15 (2012) (trial court should
generally withhold lesser-included offense instruction unless requested by
one of the parties). Timlick suggests on appeal that the court should have
given instructions on threatening under A.R.S. § 13-1202(A)(1) or disorderly
conduct under A.R.S. § 13-2904. Neither of these crimes requires the victim
to be in actual fear of injury or to be a police officer and thus these
instructions were not supported by the evidence. See State v. Lara, 183 Ariz.
233, 235 (1995) (disorderly conduct not implicated when there is no
question as to a distinguishing element of aggravated assault).

¶9            Fourth, Timlick argues the court erred in using non-historical
prior felonies to charge him as a category three offender. A category three
offender is an adult standing trial for a felony with two or more historical
prior felony convictions. A.R.S. § 13-703(C). “Historical prior felonies”
include “[a]ny felony conviction that is a third or more prior felony


                                       4
                           STATE v. TIMLICK
                           Decision of the Court
conviction.” A.R.S. § 13-105(22)(d). At sentencing, the court found Timlick
had four prior felonies, the third and fourth of which were historical prior
felonies. Thus, the court did not improperly include non-historical prior
felonies.

¶10           Finally, Timlick repeats his argument that he should have
been charged with reckless display of a dangerous instrument rather than
aggravated assault, this time characterizing the error as confusing the jury.
The State, not the court or defendant, makes charging decisions. See State v.
Mieg, 225 Ariz. 445, 447, ¶ 10 (App. 2010) (prosecutor generally has broad
discretion over charging decisions). Thus, it is not error to charge a
defendant with crimes supported by the evidence or to forego other charges
in the prosecutor’s discretion. As previously stated, the evidence supports
Timlick’s convictions. Accordingly, there was no error in the jury
instructions or verdict form as to the aggravated assault charge.

¶11            To the extent Timlick received extra pre-sentence
incarceration credit, the State did not cross-appeal the overage and we
therefore lack jurisdiction to modify Timlick’s pre-sentence incarceration
credit. See State v. Dawson, 164 Ariz. 278, 286 (1990).

                               CONCLUSION

¶12           We have reviewed the entire record for arguable issues of law
and find none, and therefore affirm the convictions and resulting sentences.
See Leon, 104 Ariz. at 300–1.

¶13           Defense counsel’s obligations pertaining to Timlick’s
representation in this appeal have ended. Counsel need do no more than
inform Timlick of the outcome of this appeal and his future options, unless,
upon review, counsel finds “an issue appropriate for submission” to the
Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584–85 (1984). On the court’s own motion, Timlick has 30 days
from the date of this decision to proceed, if he wishes, with a pro per motion
for reconsideration. Additionally, Timlick has 30 days from the date of this
decision to proceed, if he wishes, with a pro per petition for review.




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

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