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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

              TIMOTHY CHRISTOPHER SMITH, Appellant.

                             No. 1 CA-CR 17-0183
                               FILED 5-29-2018


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201400753
           The Honorable Billy K. Sipe, Jr., Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

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

Mohave County Legal Advocate Office, Kingman
By Jill L. Evans
Counsel for Appellant

Timothy C. Smith, Tucson
Appellant
                             STATE v. SMITH
                            Decision of the Court



                        MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Jon W. Thompson joined.


P E R K I N S, Judge:

¶1            Timothy Christopher Smith appeals his convictions and
sentences for two counts of aggravated assault. After searching the entire
record, Smith’s defense counsel identified no arguable, non-frivolous
question of law. Therefore, in accordance with Anders v. California, 386 U.S.
738 (1967), and State v. Leon, 104 Ariz. 297 (1969), defense counsel asked this
Court to search the record for fundamental error. Smith was granted an
opportunity to file a supplemental brief in propria persona and did so,
alleging ineffective assistance of counsel at trial and on appeal. After
reviewing the entire record, we find no error. Accordingly, Smith’s
convictions and sentences are affirmed.

                 FACTS AND PROCEDURAL HISTORY

¶2           Smith was charged with two counts of aggravated assault for
shooting Victim behind a business in April 2014. The jury found Smith
guilty on both charges, which stemmed from the same shooting but relied
on two separate theories—causing serious physical injury and using a
deadly weapon.

¶3            On the day in question, Smith drove a friend, Witness, to a
meeting with one of her acquaintances in order for Witness to receive some
money she was owed. When Smith and Witness arrived at the meeting
place, Witness realized her friend had sent Victim instead of coming to the
meeting herself. Witness testified that, in order for her friend to pay back a
debt, Victim expected Witness to give her some prescription pills in lieu of
money. However, when Witness exited the vehicle to retrieve the pills, she
found that Victim expected to be paid for the pills. Witness then returned
to Smith’s vehicle and told him what had happened. During Witness’s
conversation with Smith, Victim moved his car to partially block Smith’s
vehicle from leaving. Witness testified that either she or Smith asked Victim
to move his vehicle and, when he would not, Smith drew a pistol, exited his
vehicle, walked to Victim’s window, and fired a single shot into the
window of the car where Victim was sitting. Victim sustained two gunshot


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                             STATE v. SMITH
                            Decision of the Court

wounds when a single bullet penetrated through his arm, exited his arm,
and entered his chest. Victim required emergency medical treatment for his
injuries, which his treating physicians considered life threatening.

¶4           The jury convicted Smith of two counts of aggravated assault
under Arizona Revised Statutes (“A.R.S.”) section 13-1204(A)(1) (2018) and
13-1204(A)(2) (2018). The State alleged no aggravating factors; however, the
trial court considered several aggravating and mitigating factors in
determining whether to sentence Smith to less than the presumptive
sentence. The trial court sentenced Smith to the minimum term of five years
in the Department of Corrections for counts 1 and 2, to run concurrently.
The court further sentenced Smith to an eight-month term of community
supervision upon his release. The trial court credited him with 92 days’
presentence incarceration.

                               DISCUSSION

¶5             On appeal, we take the facts from the record at trial and view
those facts in the light most favorable to sustaining the convictions. State v.
Harm, 236 Ariz. 402, 404 n.2 (App. 2015). Our review reveals no
fundamental error. See Leon, 104 Ariz. at 300 (“An exhaustive search of the
record has failed to produce any prejudicial error.”). A person is guilty of
aggravated assault if the person “causes serious physical injury” or “uses a
deadly weapon or dangerous instrument” while committing an assault.
A.R.S. §§ 13-1204(A)(1), -1204(A)(2). Assault is defined as “intentionally,
knowingly or recklessly causing any physical injury to another person.”
A.R.S. § 13-1203(A)(1). A review of the record shows it contains sufficient
evidence upon which the jury could determine beyond a reasonable doubt
that Smith is guilty of the charged offenses.

¶6             All the proceedings were conducted in compliance with the
Arizona Rules of Criminal Procedure. The record indicates Smith was
represented by counsel at all stages of the proceedings and was present at
all critical stages including the entire trial and the verdict. See State v.
Conner, 163 Ariz. 97, 104 (1990) (right to counsel at critical stages); State v.
Bohn, 116 Ariz. 500, 503 (1977) (right to be present at critical stages). The
jury was properly comprised of eight jurors, and the record shows no
evidence of jury misconduct. See A.R.S. § 21-102; Ariz. R. Crim. P. 18.1(a).
The trial court properly instructed the jury on the elements of the charged
offenses, the State’s burden of proof, and Smith’s presumption of
innocence. At sentencing, Smith had the opportunity to speak and the court
stated on the record the evidence and materials it considered and factors it
found in imposing the sentences. See Ariz. R. Crim. P. 26.9, 26.10. The


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                             STATE v. SMITH
                            Decision of the Court

sentences imposed were within the statutory limits. See A.R.S. §§ 13-701
through -709.

                               CONCLUSION

¶7            Smith’s convictions and sentences are affirmed.

¶8            Defense counsel’s obligations pertaining to Smith’s
representation in this appeal are complete. Defense counsel need do no
more than inform Smith of the outcome of this appeal and his future
options, unless, upon review, counsel finds an issue appropriate for
submission to our supreme court by petition for review. State v. Shattuck,
140 Ariz. 582, 584–85 (1984).

¶9             Smith has thirty days from the date of this decision to
proceed, if he wishes, with an in propria persona petition for review. See Ariz.
R. Crim. P. 31.19(a). Upon the Court’s own motion, we also grant Smith
thirty days from the date of this decision to file an in propria persona motion
for reconsideration.




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




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