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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 PERSEVERANCE RUSAGARA, Appellant.

                             No. 1 CA-CR 18-0567
                               FILED 6-27-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR 2017-143787-001
               The Honorable David O. Cunanan, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

The Stavris Law Firm PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
                          STATE v. RUSAGARA
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Maria Elena Cruz and Judge James B. Morse Jr. joined.


C A M P B E L L, Judge:

¶1            This court will reverse a conviction if the prosecutor failed to
introduce substantial evidence of guilt or committed misconduct that likely
affected the jury’s verdict. Perseverance Rusagara argues both occurred
during his trial on the charge of aggravated assault with a deadly weapon.
Rusagara’s arguments are unsupported by the record. We affirm his
conviction.

                             BACKGROUND1

¶2            Late one evening, Rusagara arrived unannounced at the
victim’s apartment carrying beer bottles in a grocery bag and a folding knife
in his pocket. The victim, who was returning from his car, met Rusagara
outside. When Rusagara saw the victim, he shouted repeatedly that the
victim owed him $20. While there are conflicting accounts of how the
physical altercation began, eventually Rusagara hit the victim with a beer
bottle. When the beer bottle shattered over the victim’s head, Rusagara
grabbed a second bottle and continued hitting the victim. At some point
during the attack, Rusagara also cut the victim’s arm with the knife.

¶3             The victim’s girlfriend heard shouting, saw Rusagara break
the first beer bottle over the victim’s head, and called the police. When the
police arrived, they interviewed everyone present and saw that the victim
had a large knot on his head and a laceration on his arm. Ultimately, police
arrested Rusagara and took him to the station. There, Rusagara admitted he
cut the victim with his knife, although he claimed it was unintentional.
Later in the interview he denied ever “pull[ing] out a weapon.”

¶4           The jury found Rusagara guilty of aggravated assault with a
deadly weapon. During the aggravation phase of trial, the jury found the
following aggravating circumstances: the defendant was on probation at


1We view the facts in the light most favorable to sustaining the jury’s
verdict. State v. Boyston, 231 Ariz. 539, 542, ¶ 2 n.2 (2013).


                                      2
                           STATE v. RUSAGARA
                            Decision of the Court

the time of the offense, the offense caused physical or emotional harm to
the victim, and the offense was a dangerous offense. Rusagara was
sentenced to the presumptive term of 7.5 years for aggravated assault with
a knife, a class three dangerous felony.

                               DISCUSSION

I.     The State presented substantial evidence of aggravated assault.

¶5             Rusagara challenges the court’s denial of his motion for
judgment of acquittal after the State presented its case in chief. He argues
the evidence was insufficient to show he committed aggravated assault
because the victim’s girlfriend did not see a knife, the victim’s testimony
was inconsistent, and the defendant denied using the knife to harm the
victim. Sufficiency of the evidence is a question of law subject to de novo
review. State v. Denson, 241 Ariz. 6, 10, ¶ 17 (App. 2016). “After the close of
evidence on either side . . . the court must enter a judgment of acquittal . . .
if there is no substantial evidence to support a conviction.” Ariz. R. Crim.
P. 20(a)(1). Substantial evidence is direct or circumstantial evidence that
“reasonable persons could accept as adequate and sufficient to support a
conclusion of defendant’s guilt beyond a reasonable doubt.” Denson, 241
Ariz. at 10, ¶ 17 (citation omitted). We resolve all reasonable inferences
against the defendant. State v. Guerra, 161 Ariz. 289, 293 (1989).

¶6            A person commits aggravated assault by “[i]ntentionally,
knowingly or recklessly causing any physical injury to another person”
using a dangerous weapon or instrument. Ariz. Rev. Stat.
§§ 13-1203, -1304(A)(2). Here, ample evidence showed that Rusagara used
a knife to commit assault. Video and still images from a police officer’s body
camera showed a cut on the victim’s arm and a knife in Rusagara’s
possession. The victim testified at trial that Rusagara cut him with a knife
and showed the jury the resulting scar on his arm. Finally, in a video of his
police interview, Rusagara admitted to cutting the victim with his knife. See
State v. Michael, 161 Ariz. 382, 386 (App. 1989) (holding that to show
dangerousness of a crime, “Defendant’s own statement about possessing a
knife was sufficient evidence that a knife was used.”). A reasonable person
could accept the testimony, video, and photographs as substantial evidence
to support the conviction. Accordingly, the court did not err by denying
Rusagara’s motion for acquittal.




                                       3
                           STATE v. RUSAGARA
                            Decision of the Court

II.    The superior court was not required to declare a mistrial sua
       sponte.

¶7            Before Rusagara testified at trial, the court ruled the
prosecutor could impeach him with evidence that he had previously
committed a felony offense but could not disclose the nature of the prior
offense. See Ariz. R. Evid. 609. Rusagara testified and the prosecutor
complied with the court’s order, so that the jury only heard that Rusagara
had a prior felony conviction.

¶8             During the aggravation phase of trial, however, the
prosecutor elicited testimony from the arresting officer about the nature of
the offense. The prosecutor asked if Rusagara mentioned to the officer why
he was on probation. The officer responded, “I believe it was for an
aggravated assault involving a knife.” Rusagara now asserts that exchange
constituted prosecutorial misconduct requiring the superior court to sua
sponte declare a mistrial. Following the officer’s answer, Rusagara did not
move for a mistrial, but moved to strike the response, and the superior court
did so. The testimony identifying the nature of the prior felony conviction
was stricken and the jury was instructed to disregard the officer’s answer.
Jurors are presumed to follow the judge’s instructions. State v. Newell, 212
Ariz. 389, 403, ¶ 68 (2006). Therefore, we presume that the jurors followed
the court’s instructions in reaching their conclusion regarding aggravating
factors in this matter. “Even if the prosecutor’s comments were improper,
the judge’s instructions negated their effect.” State v. Morris, 215 Ariz. 324,
337, ¶ 55 (2007). Therefore, no fundamental error occurred.

                               CONCLUSION

¶9            For the foregoing reasons, we affirm.




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




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