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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     ROBERT JAMES DODD, Appellant.

                             No. 1 CA-CR 15-0565
                               FILED 8-18-2016


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201401326
                The Honorable Steven F. Conn, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Eric K. Knobloch
Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
                            STATE v. DODD
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jon W. Thompson joined.


D O W N I E, Judge:

¶1            Robert James Dodd appeals his convictions and sentences for
two counts of aggravated assault, one count of unlawful flight, and three
counts of criminal damage. For the reasons that follow, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            A grand jury indicted Dodd on two counts of aggravated
assault of peace officer J.K., one count of unlawful flight, and three counts
of criminal damage of property valued at $1,000 or more. The evidence at
trial, viewed in the light most favorable to sustaining the convictions,1
established that at approximately 3:00 a.m. one morning in April 2014,
Kingman Police Officer J.K. saw a vehicle traveling at a high rate of speed
without headlights.        He alerted other officers in the area, who
unsuccessfully attempted a traffic stop. Three patrol cars with lights and
sirens activated pursued the vehicle for five or six miles. The driver drove
into opposing traffic and failed to stop at red lights and stop signs. At one
point, the vehicle was traveling at 100 miles per hour.

¶3             After losing sight of the vehicle, Officer J.K. realized it was
being driven “straight at” him, without headlights, and the driver
“appeared to be trying to gain speed.” Officer J.K. moved his vehicle to the
side of the road to avoid what he feared would be a head-on crash. Officer
J.K. testified: “Just before the vehicle struck my patrol unit head-on,
approximately within 50 feet, he then turned into the eastbound lane of
travel,” but nevertheless hit the driver’s side of the patrol car. An accident
investigator from the Mohave County Sheriff’s Office testified that based
on roadway markings, it appeared the vehicle was accelerating and did not
brake before colliding with the patrol car.

¶4            The vehicle was found running, but unoccupied, in a
residential yard after it had crashed through a fence and struck a vehicle in
the yard. Officer J.K. identified Dodd as the driver. The parties stipulated

1      State v. Boozer, 221 Ariz. 601, 601, ¶ 2 (App. 2009).


                                      2
                            STATE v. DODD
                           Decision of the Court
that the damage to the patrol car totaled $1,738.42, and the damage to the
other vehicle totaled $1,136.99.

¶5            The jury convicted Dodd of the charged offenses and found
that each of the three counts of criminal damage involved damages in the
amount of $1,000 or more. The court sentenced Dodd to terms of
imprisonment for each of the six counts, and Dodd filed a timely notice of
appeal. We have jurisdiction pursuant to Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and 13-4033(A).

                              DISCUSSION

      A.     Sufficiency of Evidence

¶6            Dodd contends the trial evidence did not establish that he
“intentionally placed” Officer J.K. in reasonable apprehension of imminent
physical injury, as required to support the convictions on counts 1 and 2.
We review de novo the sufficiency of the evidence to support a conviction.
State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). “[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.” Id. at ¶ 16.

¶7             The circumstantial evidence presented at trial was sufficient
to establish that Dodd acted intentionally to place the officer in reasonable
apprehension, as necessary to prove the underlying assault under A.R.S. §
13-1203(A)(2). “[A]bsent a person’s outright admission regarding his state
of mind, his mental state must necessarily be ascertained by inference from
all relevant surrounding circumstances.” In re William G., 192 Ariz. 208, 213
(App. 1997). Viewing the evidence in the light most favorable to sustaining
the verdicts, Dodd accelerated as he drove in the wrong lane of traffic
directly toward the patrol car, failed to apply his brakes, and swerved only
at the last minute. This evidence was sufficient to establish that Dodd
intended to place Officer J.K. in reasonable apprehension of imminent
physical injury.




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                             STATE v. DODD
                            Decision of the Court
       B.     Failure to Instruct on Disorderly Conduct

¶8              Dodd next argues the superior court fundamentally erred by
failing to instruct the jury on disorderly conduct as a lesser included offense
of aggravated assault as charged in count 1.2

¶9            As charged in count 1, aggravated assault requires proof that
the defendant intended to place the victim, a peace officer, in reasonable
apprehension of imminent physical injury, using a dangerous instrument,
to wit, a motor vehicle. See A.R.S. § 13-1203(A)(2) (“A person commits
assault by . . . [i]ntentionally placing another person in reasonable
apprehension of imminent physical injury.”); A.R.S. § 13-1204(A)(2) (a
person commits aggravated assault “[i]f the person uses a . . . dangerous
instrument”). In pertinent part, disorderly conduct requires proof that the
defendant “with intent to disturb the peace or quiet of a . . . person, or with
knowledge of doing so, such person . . . [r]ecklessly handles . . . a . . .
dangerous instrument.” A.R.S. § 13-2904(A)(6). Disorderly conduct by
recklessly handling a motor vehicle with intent to disturb the peace is a
lesser included offense of aggravated assault as charged in count 1. See State
v. Miranda, 200 Ariz. 67, 68, ¶ 3 (2001); State v. Angle, 149 Ariz. 478, 479
(1986).

¶10            A trial court is required to instruct only on “necessarily
included offenses.” See State v. Wall, 212 Ariz. 1, 3, ¶¶ 13–14 (2006); Ariz. R.
Crim. P. 23.3 (“Forms of verdicts shall be submitted to the jury for all
offenses necessarily included in the offense charged.”). “An offense is
necessarily included when it is lesser included and the facts of the case as
presented at trial are such that a jury could reasonably find that only the
elements of a lesser offense have been proved.” State v. Gipson, 229 Ariz.
484, 486 n.2, ¶ 14 (2012). “To determine whether there is sufficient evidence
to require the giving of a lesser included offense instruction, the test is
whether the jury could rationally fail to find the distinguishing element of

2    Although Dodd suggests count 2 should be reversed and remanded on
this ground as well, his argument addresses only the elements of disorderly
conduct under A.R.S. § 13-2904(A)(6), involving reckless handling of a
dangerous instrument, as a lesser included offense of aggravated assault
using a dangerous instrument, as charged in count 1. He has thus waived
any argument that the court should have instructed on disorderly conduct
as a lesser included offense of count 2, which did not refer to or allege use
of a dangerous instrument. See State v. Moody, 208 Ariz. 424, 452 n.9, ¶ 101
(2004) (failure to present “significant arguments, supported by authority”
in opening brief waives issue).



                                       4
                              STATE v. DODD
                             Decision of the Court
the greater offense.” State v. Jackson, 186 Ariz. 20, 27 (1996). Here, no jury
could have reasonably found that Dodd intended only to disturb the
victim’s peace by driving at a high rate of speed in the wrong lane of traffic
directly at Officer J.K.’s patrol car, constantly accelerating, and only
swerving at the last minute so as to cause a side-swipe crash (as opposed to
a head-on collision).

¶11             Nor could reasonable jurors have found that only Officer
J.K.’s peace was disturbed and that he was not placed in reasonable
apprehension of imminent physical injury, as required to prove the greater
offense. Officer J.K. testified that he believed Dodd was going to crash
head-on into his patrol car, and he “could get hurt pretty seriously.” No
reasonable jury could have failed to find that the officer was placed in
reasonable apprehension of imminent physical injury. See State v. Lara, 183
Ariz. 233, 235 (1995) (given defendant’s “relentless and deadly” attack on
the officer, “it is not possible that the jury could have found that [the officer]
was only disturbed,” and thus, no evidence supported a disorderly conduct
instruction). Under these circumstances, the court did not fundamentally
err by not sua sponte instructing on the lesser included offense of disorderly
conduct.

       C.     Double Jeopardy

¶12            Dodd contends the offense of aggravated assault of a peace
officer charged in count 2 was a lesser included offense of the aggravated
assault of a peace officer using a dangerous instrument charged in count 1,
violating double jeopardy principles. We review double jeopardy claims de
novo. Lemke v. Rayes, 213 Ariz. 232, 236–37, ¶ 10 (App. 2006). “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 (1983). “[T]he test to be applied to
determine whether there are two offenses or only one, is whether each
provision requires proof of a fact which the other does not.” Blockburger v.
United States, 284 U.S. 299, 304 (1932). When applying the test, the court
focuses “on the statutory elements of the two crimes charged, not on the
factual proof that is offered or relied upon to secure a conviction.” State v.
Cook, 185 Ariz. 358, 361 (App. 1995).

¶13           Counts 1 and 2 each required proof of a fact that the other did
not; therefore, count 2 was not a lesser included offense of count 1. Count
1 charged reasonable apprehension aggravated assault using a dangerous
instrument, in violation of A.R.S. § 13-1204(A)(2), on a peace officer
engaged in the execution of an official duty, pursuant to A.R.S. § 13-1204(E).


                                        5
                             STATE v. DODD
                            Decision of the Court
This offense has four elements: 1) the defendant placed another person in
reasonable apprehension of imminent physical injury; 2) the defendant did
so intentionally; 3) the defendant used a dangerous instrument; and 4) the
other person was a peace officer engaged in the execution of any official
duty. A.R.S. §§ 13-1204(A)(2), (E).

¶14            Count 2 charged reasonable apprehension aggravated assault
of a peace officer, in violation of A.R.S. § 13-1204(A)(8)(a). This offense has
three elements: 1) the defendant placed another person in reasonable
apprehension of imminent physical injury; 2) the defendant did so
intentionally; and 3) the defendant knew or had reason to know that the
other person was a peace officer. A.R.S. § 13-1204(A)(8)(a). Count 1
required proof of use of a dangerous instrument (not required for count 2);
count 2 required proof of Dodd’s knowledge or reason to know the victim
was a peace officer (not required for count 1). Count 2 accordingly was not
a lesser included offense of count 1, and the convictions did not violate
Dodd’s double jeopardy rights.

       D.     Evidence of Damages

¶15          Dodd argues the evidence was insufficient to support the
count 6 conviction for felony criminal damage because there was no
evidence he damaged the fence “in an amount of one thousand dollars or
more,” as required by A.R.S. § 13-1602(B)(4).

¶16           The degree of damage in a criminal damage case “is
determined by applying a rule of reasonableness to the particular fact
situation presented.” State v. Brockell, 187 Ariz. 226, 228 (App. 1996). Here,
the homeowner testified she had not repaired the fence because “My
husband died, and I just don’t have the ability to do it right now.” Although
she could not quantify the exact cost of the fence repairs, she testified she
had talked to her insurance agent, and because she had a $1,000 deductible,
“I would have to at least pay the thousand to get it started.” A photo of the
downed chain-link fence was admitted into evidence, and a tenant
explained that though the fence had been propped up, the gate “just kind
of hangs there . . . it doesn’t really close all the way.” Although the
homeowner agreed on cross-examination that the repairs might ultimately
cost more or less than her deductible based on the totality of the trial
evidence, jurors could reasonably conclude that repair or replacement of
the fence would cost $1,000 or more. See State v. Printz, 125 Ariz. 300, 304
(1980) (“[W]hen determining value, the jury should be permitted to utilize
its common sense.”). Sufficient evidence supported the count 6 conviction
for felony criminal damage.



                                      6
                          STATE v. DODD
                         Decision of the Court
                            CONCLUSION

¶17          For the foregoing reasons, we affirm Dodd’s convictions and
sentences.




                       Amy M. Wood • Clerk of the court
                        FILED: AA




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