                               IN THE
             ARIZONA COURT OF APPEALS
                             DIVISION TWO


                     THE STATE OF ARIZONA,
                            Appellee,

                                  v.

                  PAMELA JACQUELINE WILLIAMS,
                           Appellant.

                     No. 2 CA-CR 2013-0544
                     Filed February 12, 2015


         Appeal from the Superior Court in Pinal County
                       No. CR201300056
            The Honorable Boyd T. Johnson, Judge

           AFFIRMED IN PART; VACATED IN PART


                              COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Diane Leigh Hunt, Assistant Attorney General, Tucson
Counsel for Appellee

Flores & Clark, LLC, Globe
By Daisy Flores
Counsel for Appellant


                             OPINION

Presiding Judge Kelly authored the opinion of the Court, in which
Judge Howard and Judge Espinosa concurred.
                        STATE v. WILLIAMS
                        Opinion of the Court



K E L L Y, Presiding Judge:

¶1           After a jury trial, Pamela Williams was convicted of
aggravated assault with a deadly weapon on a peace officer and use
of marijuana. The trial court sentenced her to a presumptive, flat
time 10.5-year term of imprisonment for the aggravated assault and
to a presumptive, concurrent one-year prison term for use of
marijuana. Williams argues the court erred by instructing the jury
that A.R.S. § 13-1204(C), a sentence-enhancing subsection within the
aggravated assault statute, did not require it to find Williams knew
the victim was a peace officer. She also argues the court improperly
allowed the state to use illegally seized blood evidence—admitted
solely for the purpose of impeachment—as substantive evidence of
use of marijuana, and that this evidence “tainted the entire trial,”
requiring reversal of her aggravated assault conviction. For the
following reasons, we vacate Williams’s conviction and sentence for
use of marijuana but affirm her conviction and sentence for
aggravated assault.

                Factual and Procedural Background

¶2           We view the facts and all reasonable inferences
therefrom in the light most favorable to sustaining Williams’s
convictions. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33,
34 (App. 2008). Around dusk in January 2013, two deputies
responded to B.F.’s home after B.F.’s mother reported Williams had
threatened to shoot B.F. Deputy Fernando Ruiz left to check on
Williams at her home. As he approached her house on her
driveway, he identified himself as law enforcement three times,
“yell[ing] at the top of [his] lungs.” Williams then fired two
gunshots from her home toward Ruiz.

¶3          Before Ruiz could respond, he saw Williams running
down her driveway, unarmed. Ruiz ordered Williams “to turn
around and get down on the ground facedown.” As he handcuffed
her, Williams stated: “[W]hy are you arresting me for? I shot
down.”



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                        STATE v. WILLIAMS
                        Opinion of the Court

¶4          The deputies and a responding detective searched
Williams’s property and found a jammed semiautomatic pistol on
top of her chicken coop. They seized “one additional firearm,
ammunition[,] . . . marijuana and paraphernalia.” Deputies also
drew a sample of Williams’s blood pursuant to a search warrant,
which subsequent testing showed to contain THC.1 A grand jury
indicted Williams for aggravated assault while using a deadly
weapon or dangerous instrument against Ruiz, threatening or
intimidating B.F., weapons misconduct, possession of marijuana
weighing less than two pounds, and possession of drug
paraphernalia.

¶5          Following a jury trial, Williams was convicted of
aggravated assault with a deadly weapon on a peace officer and use
of marijuana, but acquitted of threatening or intimidating.2 The trial
court sentenced Williams as described above and she timely
appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1),
13-4031, and 13-4033(A)(1).

                   Aggravated Assault Instruction

¶6           Williams argues the trial court erred by “failing to
require the state to prove that [she] focused or targeted her actions
toward a peace officer for . . . aggravated assault.” Although we
review a trial court’s decision to give a jury instruction for an abuse
of discretion, “we review de novo whether jury instructions
accurately state the law.” State v. Fierro, 220 Ariz. 337, ¶ 4, 206 P.3d
786, 787 (App. 2008).

¶7           Before trial, the state moved the court to determine
whether § 13-1204(C) required the jury to find that Williams had
knowledge of Ruiz’s status as a peace officer. The court thereafter
instructed the jury: “If you find [Williams] guilty of Aggravated
Assault, you must then determine whether the State has proven

      1Tetrahydrocannabinol.


      2The trial court amended the possession of marijuana charge
to use of marijuana and dismissed the paraphernalia charge for
reasons explained below.


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                        STATE v. WILLIAMS
                        Opinion of the Court

beyond a reasonable doubt that the victim of the Aggravated
Assault was a peace officer engaged in the execution of any official
duty.” Williams maintains that this interpretation was error and
that § 13-1204(C) should be read to “require the State to prove that
[Williams] knew or should have known that the victim . . . was a
peace officer.”

¶8           When interpreting a statute, our primary goal “‘is to
discern and give effect to the legislature’s intent.’” State v. Dixon,
216 Ariz. 18, ¶ 7, 162 P.3d 657, 659 (App. 2007), quoting State v.
Tyszkiewicz, 209 Ariz. 457, ¶ 5, 104 P.3d 188, 190 (App. 2005). “When
the plain text of a statute is clear and unambiguous there is no need
to resort to other methods of statutory interpretation to determine
the legislature’s intent because its intent is readily discernible from
the face of the statute.” State v. Christian, 205 Ariz. 64, ¶ 6, 66 P.3d
1241, 1243 (2003). Moreover, “[w]hen the legislature intends that the
mens rea apply to the status of the victim, it says so explicitly.” State
v. Gamez, 227 Ariz. 445, ¶ 30, 258 P.3d 263, 268 (App. 2011).

¶9           A     person      commits     aggravated   assault    by
“[i]ntentionally placing another person in reasonable apprehension
of imminent physical injury,” A.R.S. § 13-1203(A), while “us[ing] a
deadly weapon,” § 13–1204(A)(2). A conviction under this provision
is a class two felony if the assault was “committed on a peace officer
while the officer is engaged in the execution of any official duties.”
§ 13-1204(E). A defendant so convicted may not receive “less than
the presumptive sentence,” and “is not eligible for suspension of
sentence, commutation or release on any basis until the sentence
imposed is served.” § 13-1204(C).

¶10           In State v. Pledger, 703 Ariz. Adv. Rep. 21 (Ct. App. Jan.
8, 2015), this court recently considered whether the sentence
enhancement found under § 13-1204(E) required the defendant to
have knowledge of the victim’s status as a peace officer. We noted
that under other, related offenses, our legislature explicitly requires
the defendant to have knowledge of the victim’s status as a peace
officer. Id. ¶ 10, citing A.R.S. §§ 13-1204(A)(8)(a) (aggravated assault
against victim known to be peace officer), 13-2508(A) (resisting
arrest by “a person reasonably known . . . to be a peace officer”); see
also Gamez, 227 Ariz. 445, ¶ 27, 258 P.3d at 267 (“Statutes that . . .

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                         STATE v. WILLIAMS
                         Opinion of the Court

relate to the same subject matter or have the same general purpose
as one another . . . should be construed together as though they
constitute one law.”). In contrast, § 13-1204(E) “does not impose a
mens rea requirement regarding the status of the victim as a peace
officer.” Pledger, 703 Ariz. Adv. Rep. 21, ¶ 10. Thus, this court
concluded “our legislature has expressed its determination that
aggravated assault committed with a deadly weapon against a peace
officer is an offense serious enough to warrant classification as a
class two felony, irrespective of whether the defendant knew the
victim was a peace officer.” Id. ¶ 12.

¶11            The reasoning in Pledger applies equally here. Unlike
the crime of aggravated assault found under § 13-1204(A)(8)(a), the
sentence enhancement described in § 13-1204(C) does not provide
that the defendant must “commit[] the assault knowing or having
reason to know that the victim is . . . [a] peace officer.” Thus, the
trial court’s jury instruction in this case did not misstate the law.

¶12           Citing State v. Williams, 175 Ariz. 98, 854 P.2d 131 (1993),
Williams nevertheless argues the state was required “to prove that
[she] was focused on or targeting a peace officer.” In that case, our
supreme court analyzed the meaning of another sentence-enhancing
statute based on victim status: dangerous crimes “committed
against a minor under fifteen years of age.”3 Id. at 100, 854 P.2d at
133 (emphasis omitted). The court acknowledged that no intent or
knowledge requirement was attached to this victim-status element,
but nevertheless concluded “the defendant’s conduct must be
focused on, directed against, aimed at, or target a victim under the
age of fifteen.” Id. at 103, 854 P.2d at 136.

¶13         Our supreme court has since revisited and clarified
Williams, however, emphasizing that “a defendant who intends to
direct his criminal conduct only at adults can nonetheless be
subjected to the special sentencing provisions . . . when his victim

      3 Former  A.R.S. § 13-604.01(K)(1), which our supreme court
interpreted in Williams, 175 Ariz. at 100, 854 P.2d at 133, has been
renumbered as A.R.S. § 13-705(P)(1). See 2008 Ariz. Sess. Laws, ch.
391, §§ 17, 29.


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                         STATE v. WILLIAMS
                         Opinion of the Court

turns out to be a child, even if the defendant quite reasonably
believed to the contrary at the time the crime was committed.” State
v. Sepahi, 206 Ariz. 321, ¶ 17, 78 P.3d 732, 735 (2003), quoting Williams,
175 Ariz. at 103, 854 P.2d at 136 (“We hold only that the victim must
be the person against whom the crime is directed, not that the
accused must know the person is under fifteen.”) (emphasis
omitted). Applying that same reasoning to the present case, it was
sufficient for the jury to find Williams had “[i]ntentionally plac[ed]
another person in reasonable apprehension of imminent physical
injury,” § 13-1203(A)(2), while “us[ing] a deadly weapon,” § 13-
1204(A)(2), and that the person was “a peace officer . . . engaged in
the execution of any official duties,” § 13-1204(C).

                        Use of Blood Evidence

¶14          Williams argues that although the trial court properly
excluded the blood evidence for all but impeachment purposes, the
state nevertheless used it as substantive evidence. We review de
novo the “suppression of evidence . . . based on exclusionary rule
principles.” State v. Rosengren, 199 Ariz. 112, ¶ 9, 14 P.3d 303, 307
(App. 2000).

¶15           Before trial, Williams moved to suppress, inter alia, the
evidence of her blood test, arguing it was obtained pursuant to a
warrant that was the fruit of an unlawful, warrantless search. The
trial court agreed, and consequently limited the use of that evidence
to impeachment purposes only.4 At trial, the state sought to use the
blood evidence to impeach Williams’s out-of-court statement, “I shot
down,” by showing the THC in her body would have affected her
perception. The court permitted it and the state presented testimony
from a criminalist showing the presence of THC in Williams’s blood
and describing the effects of marijuana use. Then, during closing
argument, the prosecutor referred to marijuana several times while



      4The trial court also excluded the marijuana and paraphernalia
evidence taken from inside Williams’s home, resulting in the
dismissal of the paraphernalia charge and amendment of the
possession charge to use of marijuana.


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                        STATE v. WILLIAMS
                        Opinion of the Court

discussing the charge for use of marijuana and disorderly conduct—
a lesser-included offense of aggravated assault.

¶16          On appeal, Williams does not argue the trial court erred
by admitting the blood evidence to impeach her statement, “I shot
down.” Rather, she asserts the evidence was used improperly as
substantive evidence to support her conviction for use of marijuana.
She maintains that because the “blood evidence was the only
evidence used to convict [her] of Use of Marijuana,” her conviction
for this charge must be overturned for lack of sufficient evidence.

¶17         When a violation of the Fourth Amendment occurs,
“the exclusionary rule generally requires the suppression at trial of
any evidence directly or indirectly gained as a result of the
violation.” State v. Allen, 216 Ariz. 320, ¶ 9, 166 P.3d 111, 114 (App.
2007). Nevertheless, “illegally seized evidence may be used for
impeachment if the evidence contradicts a particular statement
made by the defendant.” State v. Menard, 135 Ariz. 385, 386, 661 P.2d
649, 650 (App. 1982), citing United States v. Havens, 446 U.S. 620
(1980).

¶18          In State v. Allred, 134 Ariz. 274, 277, 655 P.2d 1326, 1329
(1982), our supreme court acknowledged the danger of unfair
prejudice when impeachment evidence is used for substantive
purposes. One factor to consider in determining unfair prejudice is
whether the impeachment testimony is the sole evidence of guilt. Id.
The court concluded that where the impeachment evidence “was a
pretense for substantive use of an otherwise inadmissible . . .
statement” and, if admitted, the statement “would form the only
evidence that the crime was committed” by the defendant, “the
danger of unfair prejudice and unjust determination is so great” as
to require vacating the defendant’s conviction on that charge. Id. at
278, 655 P.2d at 1330 (emphasis omitted).

¶19           We find this analysis applicable here. The state
concedes that “no other evidence of [Williams’s] use of marijuana
was introduced at trial” and her “conviction . . . should be reversed
for lack of sufficient substantive evidence.” Accordingly, we vacate
Williams’s conviction and sentence for use of marijuana.



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                        STATE v. WILLIAMS
                        Opinion of the Court

¶20           Williams, however, pointing to the prosecutor’s closing
arguments, contends that “the use of the blood evidence tainted the
entire trial” and therefore, “the conviction for Aggravated Assault
should be overturned as well.” We disagree. Setting aside those
statements directed at the now-vacated charge for use of marijuana,
the remaining comments related to Williams’s reckless handling of a
firearm and the disorderly conduct charge. See A.R.S. § 13-2904(6)
(“A person commits disorderly conduct if, with intent to disturb the
peace or quiet of a neighborhood, family or person, or with
knowledge of doing so, such person . . . [r]ecklessly handles,
displays or discharges a deadly weapon or dangerous instrument.”).
The prosecutor acknowledged Williams claimed she had “shot
down,” which tended to show she had safely discharged her
firearm. But, the prosecutor argued, the active THC in her body
“would have an impact on her body, her mind, and her perception.”
Thus, these comments were consistent with the purpose for which
the blood testing evidence had been admitted. See Menard, 135 Ariz.
at 386, 661 P.2d at 650.

¶21          We recognize that two of the prosecutor’s later
comments revisiting this issue characterized the use of marijuana
while using a firearm as inherently reckless. However, if a party
wishes to clarify how the jury may use evidence, it is the party’s
responsibility to request a limiting instruction pursuant to Rule 105,
Ariz. R. Evid. See State v. Miles, 211 Ariz. 475, ¶ 31, 123 P.3d 669, 677
(App. 2005). Or, if a defendant believes a prosecutor’s comments
amount to misconduct, the defendant can object after hearing those
statements. See State v. Moody, 208 Ariz. 424, ¶ 153, 94 P.3d 1119,
1155 (2004). Williams did not take either course of action, and the
issue is thus waived for all but fundamental error. Id. (“Failure to
object to a comment in closing argument waives that argument on
appeal, and we therefore review it only for fundamental error.”).
And, because she does not argue the prosecutor’s comments
resulted in fundamental error, we need not consider the issue
further. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d
135, 140 (App. 2008) (failure to argue fundamental error waives
issue on appeal).




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                    STATE v. WILLIAMS
                    Opinion of the Court

                        Disposition

¶22         For the foregoing reasons, we vacate Williams’s
conviction and sentence for use of marijuana, but affirm her
conviction and sentence for aggravated assault.




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