                          NOTICE: NOT FOR PUBLICATION.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.

                    ROLAND DEWAYNE MCDONALD,
                             Appellant.

                            Nos. 1 CA-CR 12-0761
                                 1 CA-CR 13-0477
                                (Consolidated)
                              FILED 4-8-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-155142-001
                 The Honorable Hugh E. Hegyi, Judge

                         AFFIRMED AS MODIFIED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Colby Mills
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Louise Stark
Counsel for Appellant
                          STATE v. MCDONALD
                           Decision of the Court



                      MEMORANDUM DECISION

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


J O N E S, Judge:

¶1             Defendant Roland McDonald appeals his conviction and
sentence for aggravated assault causing temporary but substantial
disfigurement, a class four felony. On appeal, he raises three issues: (1)
the trial court erred by instructing the jury on an improper lesser-included
offense instruction, for which he was convicted; (2) the trial court failed to
accurately award his presentence incarceration credit; and (3) the trial
court improperly ordered him to pay the fees for DNA testing. For the
following reasons, we affirm McDonald’s conviction and sentence as
modified, with the exception that we vacate the portion of the sentencing
minute entry requiring him to pay the DNA testing fees.

                FACTS AND PROCEDURAL HISTORY 1

¶2            In October 2011, McDonald was employed by Peddler’s Son
Produce (Peddler’s) as a produce puller. On the night of the 22nd, J.M.,
McDonald’s supervisor, approached McDonald about his work
performance. This sparked a verbal altercation that escalated to the point
of other employees interjecting and separating the two men. Once
separated, J.M. told McDonald to leave the premises and went to “cool
off” in the bathroom; McDonald went to retrieve his personal items from
his locker.

¶3           Several minutes later, J.M. went outside to check
temperatures on Peddler’s refrigerated trucks. By this point, McDonald
had grabbed his belongings and headed outside as well. When McDonald
reached the outside area where J.M. was standing, he swung at J.M. and
struck him with his right hand. The contact created a gash on J.M.’s neck


1We view the facts in the light most favorable to sustaining the jury’s
verdict and view all reasonable inferences against McDonald. State v.
Hunter, 227 Ariz. 542, 543, ¶ 2, 260 P.3d 1107, 1108 (App. 2011).



                                      2
                          STATE v. MCDONALD
                           Decision of the Court

under his chin, requiring nineteen stitches to close. At trial, several
witnesses testified they saw a blade of some sort in McDonald’s hand
following the attack, but could not say he had the blade in his hand when
he hit J.M.

¶4             McDonald was indicted on one count of aggravated assault
with a deadly weapon, a class three felony. See Ariz. Rev. Stat. (A.R.S.)
§ 13-1204(A)(2) (2014). 2 At trial, McDonald’s counsel requested that, in
addition to the charged count, the jury be instructed on the “lesser-
included” offense of aggravated assault resulting in temporary but
substantial disfigurement (aggravated assault causing disfigurement).
See A.R.S. § 13-1204(A)(3). 3 Thereafter, the jury found McDonald not
guilty of aggravated assault with a deadly weapon but guilty of
aggravated assault causing disfigurement, the “lesser-included” offense
specifically requested by McDonald. The trial court sentenced McDonald
to the presumptive term of ten years’ incarceration. McDonald timely
appealed his conviction and sentence.

¶5            Following his sentencing and the filing of his notice of
appeal, McDonald moved to vacate the judgment, pursuant to Arizona
Rule of Criminal Procedure 24.2, arguing the aggravated assault causing
disfigurement instruction was erroneously given as it was not a proper
lesser-included offense, and therefore his conviction violated the United
States and Arizona Constitutions. The trial court denied his motion,
finding McDonald requested the instruction be given and that the
instruction comported with the evidence at trial. McDonald’s counsel did
not submit a notice of appeal regarding the motion to vacate. Thereafter,
McDonald petitioned for leave to file a delayed notice of appeal pursuant
to Arizona Rule of Criminal Procedure 32.1(f), which the trial court
granted. See State v. Rosales, 205 Ariz. 86, 87-88, ¶ 3, 66 P.3d 1263, 1264-65
(App. 2003). McDonald then timely appealed. Upon McDonald’s motion,
his two appeals were consolidated. We have jurisdiction pursuant A.R.S.
§§ 12-120.21(A)(1) (2014), 13-4031 (2014), and -4033(A) (2014).




2 Absent material revisions after the relevant dates, we cite to the current
version of the statutes and rules unless otherwise indicated.
3 The jury was also instructed on simple assault.




                                      3
                          STATE v. MCDONALD
                           Decision of the Court

                              DISCUSSION

I.     Lesser-Included Offense

¶6            McDonald argues the trial court erred by instructing the jury
on aggravated assault causing temporary but substantial disfigurement,
for which he was convicted, as it was not a proper “lesser-included”
offense of the offense to which he was charged (aggravated assault with a
deadly weapon).

¶7             Assuming, without deciding, the complained of instruction
was given in error, relief is unavailable to McDonald because he invited
such error. State v. Logan, 200 Ariz. 564, 565-66, ¶ 9, 30 P.3d 631, 632-33
(2001) (“If an error is invited, we do not consider whether the alleged error
is fundamental, for doing so would run counter to the purposes of the
invited error doctrine. Instead, as we repeatedly have held, we will not
find reversible error when the party complaining of it invited the error.”);
State v. Lucero, 223 Ariz. 129, 135, ¶ 17, 220 P.3d 249, 255 (App. 2009)
(“[I]nvited error precludes a party who causes or initiates an error from
profiting from the error on appeal. If the error is invited, the offending
party has no recourse on appeal even under the exacting standard of
fundamental error.”) (internal citations omitted).           As McDonald
specifically requested the trial court provide the jury with the alleged
erroneous instruction, he invited any error that may have arisen and
“waived his right to challenge the instructions on appeal.” State v. Roque,
213 Ariz. 193, 225, ¶ 137, 141 P.3d 368, 400 (2006); see Lucero, 223 Ariz. at
136, ¶ 20, 220 P.3d at 256 (“[A] party invites an erroneous jury instruction
by expressly requesting it.”).

II.    Presentence Incarceration Credit

¶8            A defendant is entitled to credit for all time spent in custody
pursuant to an alleged offense until the defendant is sentenced to
imprisonment for that offense. A.R.S. § 13-712(B) (2014). McDonald was
placed in custody on October 25, 2011, and was sentenced on November
16, 2012.    He was therefore entitled to 388 days of presentence
incarceration credit; however, the trial court awarded him with 387 days.
Thus, as the State concedes, McDonald is entitled to one additional day of
presentence incarceration credit.

III.   DNA Testing Fees

¶9           Finally, McDonald argues the trial court erred by ordering
him to “pay the applicable fee for the cost of [DNA] testing in accordance


                                     4
                         STATE v. MCDONALD
                          Decision of the Court

with A.R.S. § 13-610.” The State concedes A.R.S. § 13-610 (2014) does not
authorize the trial court to order convicted persons to pay for the cost of
that DNA testing. Accordingly, we vacate that portion of the trial court’s
sentencing minute entry requiring McDonald to do so. State v. Reyes, 232
Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013).

                             CONCLUSION

¶10          For the foregoing reasons, we affirm McDonald’s conviction
and sentence, but modify the sentencing minute entry to reflect 388 days
of presentence incarceration credit. Further, we vacate the portion of the
sentencing minute entry that directs McDonald to pay the costs of DNA
testing.




                                 :MJT




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