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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   JEFFREY M. DOMINGUEZ, Appellant.

                             No. 1 CA-CR 16-0845
                              FILED 12-28-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2015-142227-001
                    The Honorable Rosa Mroz, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jason Lewis
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
                          STATE v. DOMINGUEZ
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.


W I N T H R O P, Presiding Judge:

¶1           Jeffrey Michael Dominguez (“Dominguez”) appeals his
conviction and sentence for aggravated assault of a peace officer. For the
following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             On September 8, 2015, a dental office employee saw
Dominguez urinating on a tree outside the office. Minutes later, the
employee left the office to get the mail and was approached by Dominguez,
who laughed as he showed her his penis. The employee returned to the
office and called the police.

¶3             Three Tempe Police officers responded to the call. One officer
went to the dental office to speak with the employee and the other two
officers went to speak with Dominguez. After speaking with the employee,
the officer drove her near where Dominguez was seated with the other
officers, and the employee identified Dominguez as the man who exposed
himself to her earlier that afternoon. The officer then drove the employee
back to the office, and joined the other officers in order to arrest Dominguez.
Dominguez jumped up once he realized the officers were attempting to
arrest him; the officers tried to grab Dominguez’ arms, but, in doing so, they
all fell to the ground. Dominguez then began to kick and put his arms
underneath his chest to avoid being handcuffed. One officer deployed her
Taser, but Dominguez removed the wires, regained his footing, and stood
up.

¶4           The officers commanded Dominguez to stop resisting, but he
did not comply.1 The officers then grabbed Dominguez around the waist
and they all fell to the ground again, at which point one officer struck


1     The officers testified that Dominguez did not intentionally attempt
to punch or kick them.



                                      2
                           STATE v. DOMINGUEZ
                            Decision of the Court

Dominguez five times on his head in an attempt to subdue him,2 before a
second officer deployed her Taser for a second time. Dominguez again
disconnected the Taser wires, and continued to roll on the ground. Another
officer deployed his Taser for the third time, at which point the officers were
able to gain control over Dominguez and handcuff him.

¶5            Once Dominguez was arrested, the officer who had struck
Dominguez went to the hospital, where he was diagnosed with a sprained
wrist. The officer missed two days of work and wore an arm brace for one
week because of his injury.

¶6            On October 27, 2015, Dominguez was indicted on three
counts: aggravated assault, a class 4 felony; resisting arrest, a class 6 felony;
and indecent exposure, a class 1 misdemeanor. Following the indictment,
Dominguez proceeded to trial. At the close of trial, the court instructed the
jury on the elements of resisting arrest and aggravated assault, but did not
provide a causation instruction. Neither party objected to the jury
instructions.3 During deliberation the jury asked whether “it matter[ed]
how the officer was injured during the struggle? Whether the injury
occurred during strikes being delivered (the direct behavior of the officer)
versus injury during a fall to the ground, et cetera.” The court informed the
jury that it had “to decide how the officer was injured and whether the
defendant intentionally, knowingly, or recklessly caused that injury.” After
deliberation, the jury found Dominguez guilty on all counts.

¶7            Dominguez filed a timely notice of appeal. We have appellate
jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2016), 13-4031
(2010), and 13-4033(A) (2010).




2      Although the officers’ conduct was not at issue, one officer testified
that their use of force during the arrest was within police policy, and that
officers were permitted to use closed fist strikes as a technique to gain an
arrestee’s compliance.

3      Generally, courts have held that if a jury is properly instructed as to
all elements of an offense, the court need not give specific causation
instructions. State v. Mott, 187 Ariz. 536 (1997).



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                          STATE v. DOMINGUEZ
                           Decision of the Court

                                 ANALYSIS

¶8            On appeal, Dominguez’ only argument is there was
insufficient evidence to convict him of aggravated assault because the
evidence the State submitted does not show he caused the officer’s injury.

¶9              We review questions of sufficiency of the evidence de novo.
State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). We will affirm a jury’s
conviction if “after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at ¶ 16 (quoting State
v. Mathers, 165 Ariz. 64, 66 (1990)). We will reverse for insufficient evidence
only if there is a complete absence of probative facts to support a jury’s
conclusion. State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (citation omitted).
See also State v. Arredondo, 155 Ariz. 314, 316 (1987) (finding a jury verdict
will be set aside if under “no hypothesis whatever is there sufficient
evidence to support the conclusion reached by the jury” (citation omitted)).
It is the jury’s responsibility to determine the credibility and weight to give
conflicting evidence. See State v. Williams, 209 Ariz. 228, 231, ¶ 6 (App.
2004).

¶10           Here, the State was required to present sufficient evidence
that Dominguez committed aggravated assault by intentionally,
knowingly, or recklessly causing physical injury to a peace officer engaged
in his official duties. See A.R.S. §§ 13-1203(A)(1) (2010), -1204(A)(8)(a)
(Supp. 2016).

¶11           Dominguez argues the State failed to prove he intentionally,
knowingly, or recklessly caused the officer’s injury.4 Instead, Dominguez
argues the officer’s deliberate decision to hit him caused the sprained wrist.

¶12           Dominguez essentially argues the State failed to prove
causation. To establish causation the State must prove that “[b]ut for the
conduct the result in question would not have occurred[,]” and “[t]he
relationship between the conduct and result satisfies any additional causal


4      The officers testified that Dominguez did not intentionally kick or
hit them. Thus, the jury’s basis for convicting Dominguez of aggravated
assault was likely that he caused physical injury either knowingly (the
awareness or belief that his actions would cause an injury) or recklessly (the
“gross deviation from the standard of conduct that a reasonable person
would observe in the situation”). A.R.S. § 13-105(10)(b)-(c) (Supp. 2016).



                                      4
                          STATE v. DOMINGUEZ
                           Decision of the Court

requirements imposed by the statute defining the offense.” A.R.S. § 13-
203(A)(1)-(2) (2010). In criminal cases, “both ‘but for’ causation and
proximate cause must be established.” State v. Marty, 166 Ariz. 233, 236
(App. 1990) (citing State v. Lawson, 144 Ariz. 547, 559 (1985)). Generally, the
question of causation is for the jury to decide.5 Barrett v. Harris, 207 Ariz.
374, 378, ¶ 12 (App. 2004). See also Ring v. Arizona, 536 U.S. 584, 600 (2002)
(finding causation is an element “within the jury’s province to decide”).

       I.     “But For” Causation

¶13            Here, the State presented sufficient evidence from which a
jury could conclude that, but for Dominguez’ resisting arrest, the officer
would not have used physical force to gain Dominguez’ compliance, and
would not have sprained his wrist. At trial, the officers testified that they
commanded Dominguez to comply with the arrest and to stop resisting, but
Dominguez did not heed their commands. One officer deployed her Taser
to gain control of Dominguez, but he was not subdued. The officers then
grabbed Dominguez, fell to the ground, hit Dominguez, and used the Taser
twice more before they were able to handcuff and arrest him. The jury
could reasonably conclude from this testimony that, but for Dominguez’
actions, the officer would not have been injured.

       II.    Proximate Cause

¶14            The more difficult analysis is whether Dominguez’ actions
were the proximate cause of the officer’s injury. To establish proximate
cause, the difference between a defendant’s intended result and the harm
the victim actually suffered must not be “so extraordinary that it would be
unfair to hold the defendant responsible for the result.” Marty, 166 Ariz. at
237 (citing Wayne R. LaFave & Austin W. Scott, Substantive Criminal Law,
§ 3.12, at 390 (2d ed. 1986)). A finding of proximate cause thus hinges on
foreseeability: whether it was foreseeable that a defendant’s actions would
cause the harm.6 Marty, 166 Ariz. at 237.



5      The Arizona Supreme Court has held the “criminal standard for
superseding cause [is] . . . the same as our tort standard.” State v. Bass, 198
Ariz. 571, 576, ¶ 13 (2000) (citing Petolicchio v. Santa Cruz Cty. Fair & Rodeo
Ass’n, Inc., 177 Ariz. 256 (1994)).

6     The jury is in the best position to decide whether “a reasonable man
could have foreseen that his actions” would cause the resulting harm.



                                      5
                           STATE v. DOMINGUEZ
                            Decision of the Court

¶15             A defendant will not be criminally liable if an unforeseeable
and abnormal or extraordinary act (superseding act) interrupts the
defendant’s initial action and, instead, causes the victim harm. Bass, 198
Ariz. at 575-76, ¶¶ 11, 14. But see Petolicchio, 177 Ariz. at 263 (finding if “a
defendant’s actions increase the foreseeable risk of a particular harm
occurring . . . that defendant is not relieved of liability” (citing Ontiveros v.
Borak, 136 Ariz. 500, 506 (1983))); United States v. Pineda-Doval, 614 F.3d 1019,
1028-29 (9th Cir. 2010) (finding “[p]roximate cause is drawn more broadly
when the intervening action was not a coincidence or unrelated to the
defendant’s prior conduct, but rather was a response to that conduct . . .
[thus,] a police officer’s conduct in pursuing a fleeing perpetrator, even if it
was negligently performed and resulted in the death of the officer or a third
party, is not deemed conduct so unusual, abnormal or extraordinary as to
constitute a[] superseding cause”).7

¶16            While the directly foreseeable harm likely to occur from
Dominguez’ resisting arrest, and the flailing of his arms and legs, was that
he would kick or strike an officer, that was not the only foreseeable harm.
It also was foreseeable that, by resisting arrest, Dominguez could cause any
number of other injuries to the arresting officers. The fact that an officer
was injured in a different manner, or suffered a different injury than
Dominguez might have expected, does not relieve him of criminal liability.
See Petolicchio, 177 Ariz. at 263 (“It is not necessary that Defendants foresaw
the actual harm that occurred, only that harm could occur.” (citation
omitted)).

¶17            Further, we cannot say, on this record, that the officer’s
decision to try to subdue Dominguez by striking his head, causing the
officer’s sprained wrist, was an abnormal or extraordinary act that broke
the chain of causation. Rather, it is foreseeable that officers may be injured
when arresting an individual, especially if the individual is resisting arrest
and officers have to use force to gain his compliance. In sum, there is

Griffith v. Valley of Sun Recovery & Adjustment Bureau, Inc., 126 Ariz. 227, 230
(App. 1980).

7      We recognize that the distinction between an intervening act that
breaks the chain of causation, such as a willful human intervention, and an
intervening act that does not break the chain of causation, such as a
human’s reflective response to the defendant’s wrongful act, is not always
readily determinable. Frank G. Zarb, Jr., Police Liability for Creating the Need
to Use Deadly Force in Self-Defense, 86 Mich. L. Rev. 1982, 1986-87 (1988).



                                       6
                       STATE v. DOMINGUEZ
                        Decision of the Court

sufficient evidence from which the jury could conclude that Dominguez
caused the officer’s injury by resisting arrest, and is thus guilty of
aggravated assault.

                            CONCLUSION

¶18         Dominguez’ conviction and sentence are affirmed.




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

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