                          NOTICE: NOT FOR PUBLICATION.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.

                      ZEKE FLOYD SMITH, Appellant.

                             No. 1 CA-CR 13-0462
                               FILED 4-29-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-009268-001
              The Honorable Margaret R. Mahoney, Judge

                         AFFIRMED AS MODIFIED


                                   COUNSEL

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

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



                       MEMORANDUM DECISION

Presiding Judge Peter B. Swann delivered the decision of the Court, in
which Judge Patricia K. Norris and Judge Kenton D. Jones joined.


S W A N N, Judge:

¶1            Defendant Zeke Floyd Smith appeals his conviction and
sentence for aggravated assault. This case comes to us as an appeal under
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451
P.2d 878 (1969). Defendant’s appellate counsel has searched the record on
appeal and found no arguable, nonfrivolous question of law, and asks us
to review the record for fundamental error. See Anders, 386 U.S. 738; Smith
v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App.
1999). Defendant was given the opportunity to file a supplemental brief in
propria persona but did not do so.

¶2           We affirm Defendant’s conviction and sentence, but vacate
the portion of the judgment requiring Defendant to pay the cost of DNA
testing.

                 FACTS AND PROCEDURAL HISTORY

¶3           Defendant was indicted for aggravated assault. He pled not
guilty and was tried by jury. His first trial ended in a mistrial because the
jurors were unable to reach a verdict. A second trial followed.

¶4            At the second trial, the state presented evidence of the
following facts. On June 4, 2012, Officer Geoffrey Francetic of the Phoenix
Police Department was on patrol in his patrol vehicle when he saw
Defendant sitting on a sidewalk drinking a beverage from a glass
container. Suspecting that the beverage was alcoholic, Francetic exited his
vehicle and, announcing his name and police affiliation, approached
Defendant on foot. Defendant responded by pouring his beverage onto
the ground and asking, “What the fuck you want from me,
motherfucker?” Observing that the beverage container was labeled as
beer, and that the beverage foamed and smelled like beer, Francetic told
Defendant that he was investigating whether Defendant was consuming
alcohol in public. Continuing to curse at the officer, Defendant complied
with directions to provide an identification card and sit on a nearby bench



                                       2
                           STATE v. SMITH
                          Decision of the Court

while Francetic used his radio to check Defendant’s records. As Francetic
completed the records check, Defendant rose from the bench, clenched his
hands by his face, and stated, “I’m going to kick your ass, motherfucker.”
Coming toward Francetic, Defendant then swung his right arm at
Francetic’s head. Francetic stepped back to avoid the blow and pushed
Defendant onto the bench. He then restrained Defendant and, with the
help of another officer who arrived on the scene, took him into custody.

¶5            At the conclusion of the state’s case-in-chief, Defendant
moved for a judgment of acquittal. The court denied the motion and
Defendant rested. While considering the evidence, the jury informed the
court that one juror remained undecided and wanted additional
instruction regarding what aspect of Defendant’s conduct the jury was
supposed to consider in evaluating whether Francetic experienced
“reasonable apprehension of imminent physical injury” for purposes of
assault. The court responded to this question by asking whether
additional argument by counsel would be helpful, and the jury answered
in the affirmative. Counsel then presented brief supplemental closing
arguments, and the jury thereafter found Defendant guilty.

¶6            The court entered judgment on the jury’s verdict and
sentenced Defendant to a presumptive term of 1.5 years in prison, with
credit for 368 days of presentence incarceration, to run concurrent with a
sentence for a separate offense to which Defendant had pled guilty.
Defendant timely appeals.

                             DISCUSSION

¶7              The record reveals no fundamental error. Defendant was
present and represented at all critical stages. The record shows no
evidence of jury misconduct and the jury was properly comprised of eight
jurors. See A.R.S. § 21-102(B); Ariz. R. Crim. P. 18.1(a). When the jury
indicated that all but one of its members had reached a decision, the court
properly offered assistance in the form of additional closing argument
regarding the question posed by the undecided juror. See Ariz. R. Crim. P.
22.4; State v. Huerstel, 206 Ariz. 93, 99, ¶ 17, 75 P.3d 698, 704 (2003).

¶8           The evidence that the state presented at trial was properly
admissible and was sufficient to support Defendant’s convictions.
Defendant was charged with aggravated assault under A.R.S. §§ 13-
1203(A)(2) and -1204(A)(8)(a), which required the state to prove that
Defendant intentionally placed Francetic in reasonable apprehension of
imminent physical injury knowing or having reason to know that



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                            STATE v. SMITH
                           Decision of the Court

Francetic was a peace officer engaged in the execution of official duties.
The state produced evidence that after an on-duty police officer
introduced himself to Defendant, Defendant threatened to fight the
officer, approached him in a fighting stance, and swung a fist at his head.
The officer testified that he was concerned for his safety and believed that
Defendant’s fist would have hit him had he not stepped back. This
evidence was sufficient to allow the jury to find Defendant guilty of
aggravated assault.

¶9           At sentencing, Defendant was given an opportunity to speak
and the court stated on the record the evidence and materials it
considered and the factors it found in imposing sentence. The court
imposed a legal sentence for the offense, see A.R.S. §§ 13-702(D), -1204(E),
and correctly calculated Defendant’s presentence incarceration credit
under A.R.S. § 13-712(B). The court erred, however, by ordering that
Defendant “submit to DNA testing for law enforcement identification
purposes and pay the applicable fee for the cost of that testing in
accordance with A.R.S. § 13-610.” Section 13–610 authorizes the collection
of DNA samples for certain law enforcement purposes but it does not
authorize the imposition of a fee for DNA testing on a convicted
defendant. State v. Reyes, 232 Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App.
2013).

                             CONCLUSION

¶10           We vacate the portion of the judgment requiring Defendant
to pay the cost of his DNA testing. We otherwise affirm.




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                           STATE v. SMITH
                          Decision of the Court

¶11           Defense counsel’s obligations pertaining to this appeal have
come to an end. See State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154,
156-57 (1984).      Unless, upon review, counsel discovers an issue
appropriate for petition for review to the Arizona Supreme Court, counsel
must only inform Defendant of the status of this appeal and Defendant’s
future options. Id. Defendant has 30 days from the date of this decision
to file a petition for review in propria persona. See Ariz. R. Crim. P.
31.19(a). Upon the court’s own motion, Defendant has 30 days from the
date of this decision in which to file a motion for reconsideration.




                                :MJT




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