                          NOTICE: NOT FOR PUBLICATION.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.

                 ANTHONY LATRAIL WOODS, Appellant.

                             No. 1 CA-CR 12-0528
                              FILED 03/11/2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-100872-001
               The Honorable Robert L. Gottsfield, Judge

               AFFIRMED IN PART; VACATED IN PART


                                   COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Charles R. Krull
Counsel for Appellant
                            STATE v. WOODS
                           Decision of the Court



                        MEMORANDUM DECISION

Judge Donn Kessler delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Michael J. Brown joined.


K E S S L E R, Judge:

¶1            Anthony Latrail Woods (“Woods”) appeals from his
conviction and sentence for aggravated assault, a class 4 felony, with one
historical prior felony conviction and aggravating factors. Counsel for
Woods 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). Raising only
the issue of whether the portion of the sentencing order that requires
Woods to pay for his DNA testing is proper, counsel requests that this
Court search the record for fundamental error. Woods was given the
opportunity to but did not file a supplemental brief in propria persona. For
the reasons that follow, we affirm Woods’ conviction and sentence in part,
but vacate the portion of the sentencing order that requires Woods to pay
for his DNA testing.

               FACTUAL AND PROCEDURAL HISTORY

¶2             In 2011, the victim was living at an apartment complex with
her girlfriend. The victim’s acquaintance, J., lived in the same complex
with her boyfriend, Woods’ brother. J. contacted the victim, and asked
her to help J. move.

¶3           On her way to J.’s apartment, the victim encountered Woods
in the parking lot and asked about J.’s property. Woods became angry
and, as the victim turned to leave, punched her on the right side of her
face—breaking her jaw in two places—then drove away. The victim
required surgery, resulting in her jaw being wired shut for approximately
two and one-half months.

¶4            The victim’s girlfriend identified the license plate of the car
Woods used to flee the scene, and later both the victim and her girlfriend
identified Woods in a photo lineup. Subsequently, Woods was indicted
on one count of aggravated assault, a class 4 felony. The State also filed an
allegation of historical priors for sentence enhancement.




                                     2
                                STATE v. WOODS
                               Decision of the Court

¶5           An eight-person jury found Woods guilty of aggravated
assault and, as an aggravating factor, found that he caused the victim
physical, emotional, or financial harm. During sentencing, the court
found that Woods had one historical prior felony conviction and one other
felony conviction older than ten years. The court sentenced Woods to the
maximum sentence of six years based on the sentence enhancement and
credited him with 220 days of presentence incarceration. Woods also
stipulated to $20,000 in restitution to the Maricopa County Victim’s
Compensation Fund and $16,679.94 to the victim.

¶6             Woods timely appealed, and we have jurisdiction pursuant
to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and -
4033(A)(1) (2010).

                                   DISCUSSION

¶7            In an Anders appeal, we review the entire record for
fundamental error. State v. Richardson, 175 Ariz. 336, 339, 857 P.2d 388, 391
(App. 1993). Fundamental error is “error going to the foundation of the
case, error that takes from the defendant a right essential to his defense,
and error of such magnitude that the defendant could not possibly have
received a fair trial.” State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d
601, 607 (2005) (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982
(1984)). To obtain a reversal, the defendant must also demonstrate that
the error caused prejudice. Id. at ¶ 20.

¶8           After careful review of the record, we find no grounds for
reversal of Woods’ conviction or modification of his sentence, except the
portion that requires him to pay for his DNA testing. The evidence
supports the verdict, the sentence imposed was within the sentence range
for Woods’ offense, 1 the proceedings were held in accordance with the
Arizona Rules of Criminal Procedure, and Woods was present and
represented at all critical stages of the proceedings below.

         A.      Sufficiency of the Evidence

¶9           On review, we view the facts in the light most favorable to
sustaining the jury’s verdict and resolve all inferences against the
defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App.
1998). “Reversible error based on insufficiency of the evidence occurs

1   A.R.S. § 13-703(B)(2), (I) (2010).



                                         3
                             STATE v. WOODS
                            Decision of the Court

only where there is a complete absence of probative facts to support the
conviction.” State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996)
(quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)).

¶10          There is sufficient evidence to support Woods’ conviction for
aggravated assault. To obtain a conviction for aggravated assault, the
State must prove that a defendant intentionally, knowingly, or recklessly
caused a physical injury to the victim and that the assault was committed
by any means of force that caused a fracture of any body part. A.R.S. §§
13-1203(A)(1) (2010), -1204(A)(3) (Supp. 2013). 2 Here, the victim testified
that Woods punched her in the face and broke her jaw after she turned to
walk away. Additionally, the victim’s girlfriend testified that she heard
Woods and the victim arguing and then found the victim on the ground
with a broken jaw. A police officer testified about the victim’s condition at
the scene and in the hospital, and a medical expert testified that the
victim’s jaw was broken in two places and required approximately two
and one-half months of treatment and follow-up.

¶11             There is also sufficient evidence that Woods caused the
victim physical, emotional, or financial harm. During the aggravation
trial, the victim testified about medical bills she accrued as a result of the
injury, the emotional toll of the injury, and financial harm to her credit
and her resulting inability to work.

       B.     Closing Arguments at Sentencing

¶12           During the sentencing hearing, the prosecutor commented
on his personal belief in Woods’ guilt and his personal belief that defense
witnesses lacked credibility. Although such commentary is inappropriate,
we presume the judge knows the law and did not consider these
statements when determining Woods’ sentence. Moreover, prosecutorial
misconduct is reversible error only when it is so pronounced and
persistent that it permeates the entire trial. State v. Edmisten, 220 Ariz. 517,
524, ¶ 23, 207 P.3d 770, 777 (App. 2009). There is no evidence that the
prosecutor’s statements here, which were made outside the presence of
the jury and after the verdict was rendered, permeated the entire trial.
Accordingly, we find no reversible error.




2 We cite the most recent versions of statutes when no alterations material
to this decision have since occurred.



                                       4
                            STATE v. WOODS
                           Decision of the Court

      C.     DNA Testing

¶13           As part of Woods’ sentence, the trial court required him to
pay for his DNA testing pursuant to A.R.S. § 13-610 (Supp. 2013). After
the court so ruled, we held in State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307
P.3d 35, 39 (App. 2013), that there is no basis under that section to require
a convicted defendant to pay the cost of his DNA testing. Therefore, we
vacate the portion of Woods’ sentence that requires him to pay for his
DNA testing. See id.

                              CONCLUSION

¶14          For the foregoing reasons, we affirm Woods’ conviction and
sentence, but modify his sentence by vacating the portion that requires
Woods to pay for his DNA testing. Upon the filing of this decision,
counsel shall inform Woods of the status of the appeal and his future
appellate options. Defense counsel has no further obligations unless,
upon review, counsel finds an issue appropriate for submission to the
Arizona Supreme Court by petition for review. See State v. Shattuck, 140
Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Woods shall have thirty
days from the date of this decision to proceed, if he so desires, with a pro
per motion for reconsideration or petition for review.




                                  :gsh




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