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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                        DANIEL HORTON, Appellant.

                             No. 1 CA-CR 14-0470
                               FILED 3-8-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-154853-001
                The Honorable Roland J. Steinle, Judge

CONVICTIONS AFFIRMED AS MODIFIED, SENTENCES VACATED,
            REMANDED FOR RESENTENCING


                                   COUNSEL

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

Michael J. Dew, Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellant
                          STATE v. HORTON
                          Decision of the Court



                     MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Chief Judge Michael J. Brown joined.


C A T T A N I, Judge:

¶1            Daniel Horton appeals from his convictions of two counts of
aggravated assault. For reasons that follow, we conclude that the evidence
does not support the convictions, reduce each conviction to the lesser-
included offense of attempted aggravated assault, and remand for
resentencing.

             FACTS AND PROCEDURAL BACKGROUND

¶2           One night in October 2012, a woman (“H.H.”) and her
boyfriend (“L.W.”) were arguing in front of H.H.’s housing unit in Phoenix.
H.H. walked to the street corner and L.W. followed in his car. L.W. got out
of the car and the couple continued to argue and raise their voices.
Although the encounter never became physical, at one point L.W. placed
his hands on H.H.’s hips.

¶3            As the argument began to calm, H.H. and L.W. noticed a man
standing across the street watching them. As they continued their
conversation, they noticed the man still watching them. L.W. yelled to the
man, “Do we have a problem?” and the man shouted for L.W. to step away.
The man also raised his hand as if holding a gun. L.W. placed his wallet on
top of the car, stating “I got a gun too” and asking “what are you going to
do now?” As the man stepped under a light, H.H. recognized him as
someone she knew and started walking towards him. Horton then walked
away.

¶4            As Horton was walking away, H.H. saw that he was holding
a gun and told L.W., “He has an actual gun.” H.H. and L.W. followed
Horton to see what apartment complex he entered, then reported the
incident to the Phoenix Police Department.

¶5            During a consensual search of Horton’s apartment, police
officers found a handgun hidden in the cushion of a couch and arrested
him. H.H. and L.W. subsequently identified Horton as the man who had



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                           Decision of the Court

been across the street while they were arguing, and Horton was charged
with two counts of aggravated assault, both class three felonies.

¶6            Horton failed to appear at a pre-trial hearing and at trial,
which proceeded in his absence. H.H. testified that Horton had responded
to L.W. by raising his hand in a manner suggesting he had a gun in his
hand. But H.H. also testified that she did not know Horton had a gun until
she saw it in his hand as he was walking away. H.H. did not indicate that
she feared for her safety.

¶7            L.W. testified that he thought Horton was “just playing” and
trying to scare him. L.W. was not aware Horton had an actual gun until
H.H. told him about it as Horton was walking away. L.W. stated that at
that point he was “scared” because, even though Horton was walking
away, he was close to H.H. and there was a possibility he could turn
around.

¶8            Following the State’s presentation of evidence, Horton’s
counsel moved for a directed verdict on both counts, which the superior
court denied while noting that it was a “close” call. The jury returned guilty
verdicts as to both counts. The court then denied Horton’s motion for a
new trial in which he argued the verdicts were contrary to the evidence.
Horton was sentenced to mitigated, concurrent terms of five years’
incarceration for both counts, with credit for 214 days of presentence
incarceration. Horton timely appealed, and we have jurisdiction under
Arizona Revised Statutes (“A.R.S.”) § 13-4033.1

                               DISCUSSION

¶9           Horton challenges the trial court’s denial of his motion for
judgment of acquittal and the sufficiency of the evidence underlying his
convictions.

I.     Sufficiency of Evidence.

¶10          We review de novo the superior court’s denial of a motion for
judgment of acquittal under Arizona Rule of Criminal Procedure 20. State
v. West, 226 Ariz. 559, 562, ¶ 15 (2011). A judgment of acquittal is
appropriate only “if there is no substantial evidence to warrant a
conviction.” See Ariz. R. Crim. P. 20(a); State v. Jones, 188 Ariz. 388, 394
(1997). Substantial evidence is evidence, viewed in the light most favorable

1     Absent material revisions after the relevant date, we cite a statute’s
current version unless otherwise indicated.

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to sustaining the verdict, from which a reasonable person could find a
defendant guilty beyond a reasonable doubt. See State v. Bearup, 221 Ariz.
163, 167, ¶ 16 (2009).

¶11            In assessing the sufficiency of the evidence, we do not address
the credibility of witnesses or reweigh the evidence; rather, we defer to the
determination of the jury. See State v. Buccheri-Bianca, 233 Ariz. 324, 334, ¶
38 (App. 2013). Mere speculation, however, concerning “possibilities” is an
insufficient basis to support a conviction. State v. Garcia, 227 Ariz. 377, 379,
¶ 9 (App. 2011).

¶12            A defendant commits aggravated assault by intentionally
placing the victim(s) in reasonable apprehension of imminent physical
injury, through the use of a deadly weapon. See A.R.S. §§ 13-1203(A)(2), -
1204(A)(2). Both direct and circumstantial evidence may be used to prove
the victim’s apprehension, and “[t]here is no requirement that the victim
testify to actual fright.” State v. Wood, 180 Ariz. 53, 66 (1994).

¶13            Citing State v. Baldenegro, 188 Ariz. 10, 13 (App. 1996), Horton
asserts that the State did not present evidence that the victims reacted with
apprehension or fear. In Baldenegro, this court concluded that the State did
not provide evidence from which a jury could conclude that the victim “saw
a gun pointed at him or at the car before the shooting,” and thus the
evidence was insufficient to establish even circumstantial proof of an
apprehension of fear. Id. at 13. Here, Horton argues that the evidence
similarly established only that the victims became aware that Horton had a
weapon after he began to walk away from them.

¶14           The State acknowledges that the victims did not believe that
Horton intended to place them in reasonable apprehension of imminent
physical injury while they saw him from across the street. The State asserts,
however, that the victims’ reasonable apprehension occurred when Horton
was walking away from them and they realized that Horton had been
pointing a gun at them.

¶15            The first victim, H.H., testified that she did not see the gun
until she started to approach Horton after recognizing him as someone she
knew. H.H. stated that when she spoke to Horton, he recognized her and
he put the gun down and started to walk away. H.H. followed Horton,
even though it was clear that Horton did not want to talk to her and was
trying to leave. H.H. did not testify that she was afraid of Horton or that
she felt she was in danger, even after seeing that Horton had a gun. Under
these circumstances, the evidence was insufficient to establish that H.H.



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                           Decision of the Court

reasonably apprehended imminent physical injury, and we thus vacate the
jury’s finding to that effect.

¶16           The aggravated assault conviction involving the second
victim, L.W., presents a closer question. L.W. testified that he was “scared”
after learning that Horton actually had a gun, even though Horton was no
longer pointing it at him or H.H.:

      Q. [By the Prosecutor] At the point that [H.H.] said that
      [Horton had a gun] and you realized he had[,] had a real gun
      and in fact did have a real gun, at this time, what were you
      thinking?

      A. [L.W.] I was scared. I was scared, first of all, because I
      didn’t know who he was. Second, I didn’t know if he was the
      kind of person to come back and later on retaliate against
      something I said. She recognized him and I didn’t want him
      to try to do something to her, you know. So I was -- I was
      scared.

      Q. At the point -- at this point he has turned around and is
      walking away, were you still scared?

      A. I was -- I was--yeah, I was still scared and surprised, but I
      was more likely scared because I realized when she said it was
      like a real gun. I was like, wow, it is a real gun. I was like,
      man, I was being stupid. You know, pretending like I had a
      gun and he really had a real one, so, you know. And then -- I
      didn’t think what she [was] doing when she walked away
      from me, you know, walking in the front of the path of the
      gun, you know, she didn’t think it was real either until she
      actually walked upon it.

      Q. To the point he put the gun down and was walking away,
      why would you still be scared?

      A. At the point he put the gun down and was walking away?
      Because I was surprised that it was a real gun and that she
      was closer to him than me.

      Q. Given what had happened, did you think it was a
      possibility that he could still turn around?

      A. Yeah.


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¶17            Although L.W.’s statements that he was afraid Horton could
still turn around and that he might retaliate arguably suggest apprehension,
in context, the testimony reflected L.W.’s apprehension about what had
previously happened and apprehension for H.H.’s safety, rather than
L.W.’s imminent fear for his own safety. By the time L.W. learned about
the gun, Horton was walking away from him, and even assuming Horton
kept the gun in his hand to discourage H.H. and L.W. from following him,
there was no evidence that he made any movements suggesting he might
turn around to harm them. Moreover, any suggestion of fear of imminent
harm is belied by the fact that L.W. and H.H. followed Horton even after
realizing he had a gun. Accordingly, we similarly vacate the jury’s finding
that L.W. was in imminent fear of physical injury.

¶18           Although the evidence was insufficient to establish fear of
imminent physical injury, the evidence established the remaining elements
of aggravated assault, and thus establish all of the elements of the lesser-
included offense of attempted aggravated assault. Because the jurors
necessarily found those elements, we reduce Horton’s aggravated assault
convictions to attempted aggravated assault and remand for resentencing.
See A.R.S. § 13-4036 (appellate court may “affirm or modify the judgment
appealed from, and may grant a new trial or render any judgment or make
any other order which is consistent with [] justice and the rights of the state
and the defendant”); see also State v. DiGuilio, 172 Ariz. 156, 161–62 (App.
1992) (collecting cases in which Arizona appellate courts have modified
judgment to reflect conviction of a lesser-included offense when there was
insufficient proof of an element required for the greater offense).

                              CONCLUSION

¶19           For the foregoing reasons, we modify Horton’s aggravated
assault convictions to attempted aggravated assault and remand for
resentencing.




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