                          NOTICE: NOT FOR PUBLICATION.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.

                   JUSTIN ANDREW YANCY, Appellant.

                             No. 1 CA-CR 13-0640
                              FILED 07-03-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR 2012-007266-001
           The Honorable Jeffrey A. Rueter, Judge Pro Tempore

                                  AFFIRMED


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

Maricopa County Public Defender’s Office, Phoenix
By Spencer D. Heffel
Counsel for Appellant



                       MEMORANDUM DECISION

Presiding Judge Kenton D. Jones delivered the decision of the Court, in
which Judge Margaret H. Downie and Judge Donn Kessler joined.
                             STATE v. YANCY
                            Decision of the Court

J O N E S, Judge:

¶1         Defendant Justin Yancy timely appeals his conviction of
endangerment, a class one misdemeanor and domestic violence offense.

¶2             After searching the record on appeal and finding no
arguable question of law that was not frivolous, Yancy’s defense counsel
filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967),
and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), asking this Court to
search the record for fundamental error. Yancy has been afforded an
opportunity to file a supplemental brief, in propria persona, and has not
done so. After reviewing the record, we find no error and, therefore,
affirm Yancy’s conviction and sentence.

                                Background 1

¶3            Yancy lived with his mother and younger brother in a
Scottsdale apartment. On January 23, 2012, while cleaning his .22 rifle in
his bedroom, and apparently unaware a bullet was in the chamber, Yancy
pulled the trigger. The rifle discharged, with the bullet passing through
the wall of Yancy’s bedroom, through two bathrooms, and continuing
through to his mother’s bedroom, where his mother was sitting on her bed
watching television. The bullet exited his mother’s bedroom wall, after
passing within one to five feet from her, leaving his mother unharmed.
When the younger brother informed his teacher of the incident, and
school authorities contacted the Scottsdale police department, police
conducted a welfare check at the residence. Yancy admitted the events of
the prior night to the officers.

¶4            Yancy was initially indicted for endangerment, a class six
felony and a domestic violence offense, in violation of Arizona Revised
Statutes (A.R.S.) sections 13-1201 (2014) and -3601 (2014). 2,3 On the State’s
motion, the trial court later amended the charge to a class one
misdemeanor. Yancy then rejected the State’s offer to reduce the charge to


1  We view the evidence in the light most favorable to upholding the
verdict, and we resolve all reasonable inferences against the defendant.
State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
2 A.R.S. § 13-3601(A)(4) provides that endangerment is a domestic offense

if “[t]he victim is related to the defendant . . . by blood . . . as a parent.”
3 Absent material revisions, we cite the current version of statutes and

rules unless otherwise indicated.



                                      2
                            STATE v. YANCY
                           Decision of the Court

a class two misdemeanor, pleaded not guilty, and the matter proceeded to
a trial to the court.

¶5             During trial, Yancy testified his father had instructed him
how to clean his rifle; thereby admitting he knew how to do so. Yancy
further acknowledged that proper gun handling procedure required not
pulling a trigger inside a house. Yancy also indicated the last time he fired
the rifle was a month prior to the incident, he did not recall leaving bullets
in the chamber, and believed the chamber was empty at the time he
cleaned the rifle. Yancy did not know why he pulled the trigger, stating:

       Q: So if you didn’t have to do it for cleaning, why did you
       do it?

       A: I don’t really remember. I mean, I did it, and I was scared
       afterwards.

       Q: Did you put a lot of thought into pulling this trigger?

       A: No.

       Q: I guess – did you even put the thought in this saying: I’m
       going to pull the trigger now?

       A: No.

       Q: So you’re not sure even sure [sic] why you did this?

       A: Definitely.

¶6            The trial court found Yancy guilty of endangerment, a class
one misdemeanor and a non-dangerous and non-repetitive offense. A.R.S.
§ 13-1201. In addition, the trial court determined the misdemeanor was a
domestic violence offense. See A.R.S. § 13-3601(A)(4). In consideration of
Yancy’s history of good behavior, and because the offense was reckless
rather than intentional, the trial court suspended his sentence and placed
Yancy on six months unsupervised probation.

                                 Discussion

¶7            After a diligent search of the entire record, Yancy’s counsel
has advised this Court he found no arguable question of law. We have
fully reviewed for reversible error, and find none. See Leon, 104 Ariz. at
300, 451 P.2d at 881.



                                      3
                             STATE v. YANCY
                            Decision of the Court

¶8            In order to convict a person of endangerment, the State must
prove beyond a reasonable doubt that a person “recklessly endanger[ed]
another person with a substantial risk of imminent death or physical
injury.” A.R.S. §§ 13-115(A), -1201(A). A class one misdemeanor offense
of endangerment, however, includes “all other cases” not involving a
“substantial risk of imminent death.” A.R.S. § 13-1201(B); State v.
Carpenter, 141 Ariz. 29, 31, 684 P.2d 910, 912 (App. 1984) (noting the crime
of endangerment is “a felony only if it involved substantial risk of death to
another”). Although a conviction under § 13-1201 requires the State to
prove the defendant placed the victim at a substantial risk of physical
injury, reckless endangerment does not require that the victim actually
sustain a physical injury. Campas v. Superior Court, 159 Ariz. 343, 345, 767
P.2d 230, 232 (App. 1989). A person acts recklessly when he “is aware of
and consciously disregards a substantial and unjustifiable risk that the
result will occur,” and that risk is “of such nature and degree that
disregard of such risk constitutes a gross deviation from the standard of
conduct that a reasonable person would observe in the situation.” A.R.S.
§ 13-105(10)(c).

¶9             Based upon our review of the record, we find substantial
evidence supports Yancy’s conviction. Substantial evidence is “such proof
that ‘reasonable persons could accept as adequate and sufficient to
support a conclusion of defendant’s guilt beyond a reasonable doubt.’”
State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (citation omitted).
Given the common understanding of the inherent dangerousness of guns
as well as his prior experience with this specific rifle, Yancy was aware of
the substantial and unjustifiable risk inherent in pulling the trigger while
in his apartment, and the threat such an act posed to other persons in the
apartment complex, particularly, his mother and brother with whom he
resided. Furthermore, although Yancy failed to ensure the rifle was not
loaded before beginning to clean it, he nonetheless pulled the trigger
while cleaning it and thereby risked the possibility of an accidental
discharge, even though he believed the rifle to be unloaded. Such actions
fall well below the standard of conduct a reasonable person would engage
in as Yancy confirmed in his testimony. See A.R.S. § 13-105(10)(c). Finally,
the trajectory of the bullet indicated Yancy did in fact expose his mother to
a substantial risk of physical harm: the bullet passed within one to five
feet from where she was seated. See United States v. Hernandez-Castellanos,
287 F.3d 876, 879 (9th Cir. 2002) (stating a felony conviction under A.R.S. §
13-1201 required proof the defendant’s “conduct did in fact create . . . a
substantial risk as to each victim”) (citing State v. Doss, 192 Ariz. 408, 411,
¶ 9, 966 P.2d 1012, 1015 (App. 1998). We conclude ample evidence
supports Yancy’s conviction.


                                       4
                             STATE v. YANCY
                            Decision of the Court

¶10            After the filing of this decision, defense counsel’s obligations
pertaining to Yancy’s representation in this appeal have ended. Yancy’s
counsel need do no more than inform Yancy of this appeal’s outcome and
his future options, unless, upon review, counsel finds an issue appropriate
for submission to the Arizona Supreme Court by petition for review. State
v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984).

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

                                 Conclusion

¶12           We affirm Yancy’s conviction and sentence.




                                  :gsh




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