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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   JAY RANDALL JONES, JR., Appellant.

                             No. 1 CA-CR 15-0232
                               FILED 2-18-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-002142-001
                The Honorable Alfred M. Fenzel, Judge

         CONVICTIONS AFFIRMED AND REMANDED FOR
                 CLARIFICATION OF SENTENCES


                                   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. JONES
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Samuel A. Thumma joined.


H O W E, Judge:

¶1            Jay Randall Jones, Jr., appeals his convictions and sentences
for one count of attempt to commit first degree murder, two counts of
aggravated assault, one count of discharge of a firearm at a residential
structure, two counts of burglary in the first degree, one count of theft, and
one count of endangerment. For the following reasons, we affirm Jones’
convictions, but remand to clarify the sentences imposed.

                 FACTS AND PROCEDURAL HISTORY

¶2            At approximately 4:00 a.m. in early March 2014, police
officers responded to a silent alarm at a gun shop located in a strip mall.
They saw a large jagged hole in a wall that divided the gun shop and a
vacant office. The officers entered the vacant office and heard voices
through the hole and coming from the gun shop.

¶3           Unbeknownst to Jones that the officers were on the other side,
he began to crawl through the hole towards the vacant office. When he
noticed the officers, however, Jones retreated to the gun shop and fled
through a rear entrance. Detective Higgins and Officers Frandsen and
Strnad pursued Jones through a nearby trailer park, and Higgins and Jones
exchanged gunfire in an adjacent neighborhood. Although neither Higgins
nor Jones was shot, one bullet Jones shot pierced the side of a mobile home
and entered the kitchen while the occupant, E.M., was making coffee. The
bullet lodged in the refrigerator, which was welded to the wall, and
“approximately an inch away from [E.M.’s] coffee pot.”

¶4            Meanwhile, Jones exchanged gunfire with the police. Jones
fired one shot at Detective Higgins and then backed up, “tripping over his
own feet,” but still holding the gun in his hand. The detective fired more
shots at Jones; Jones finally “raised up his hands, yelled something like,
okay, okay, and then threw the gun to the side.” After arresting Jones, the
police discovered approximately $40,000 worth of firearms stuffed in duffel
bags in the gun shop and vacant office.



                                      2
                            STATE v. JONES
                           Decision of the Court

¶5             The State charged Jones with one count of attempt to commit
first degree murder (Count 1); three counts of aggravated assault (Counts
2, 3, and 4); one count of discharge of a firearm at a residential structure
(Count 5); two counts of burglary in the first degree (Counts 6 and 7); one
count of theft (Count 8); and one count of endangerment (Count 9). The trial
court granted Jones’ motion for judgment of acquittal on Count 4. The
jurors convicted Jones of the remaining counts.

¶6           At the sentencing hearing, the trial court imposed terms of 15
years’ imprisonment for Counts 1 and 2, to run concurrently with each
other. For Count 3, the court imposed a term of 10.5 years’ imprisonment,
to run consecutively to the sentences for Counts 1 and 2. For Count 5, it
imposed a term of 10.5 years’ imprisonment, to run “concurrently with the
other sentences.” For Counts 6, 7, and 8, the court imposed terms of 7 years’
imprisonment for each count, to run “concurrently with each other and
with Count 5.” For Count 9, the court imposed a term of 3 years’
imprisonment, to run consecutively to the sentences for the other counts.

¶7             The trial court then summarized its oral pronouncement: “So,
it’s basically 10 and a half on 1 and 2 it’s concurrent—15 each on 1 and 2
concurrently; 10 and a half consecutive to 1 and 2; Count 5, concurrent, 10
and a half; Count[s] 6, 7 and 8, consecutive; and Count 9, 3 years
consecutive.” Defense counsel then clarified: “Your Honor, you said on
Counts 6, 7, and 8 concurrent with Count 5?” The court answered: “You’re
right. Concurrent with Count 5, but consecutive to Counts 1, 2, and 3.
Concurrent with Count 5, but consecutive to Counts 1, 2 and 3 and 9.” Jones
timely appealed.

                               DISCUSSION

              1. Sufficiency of Evidence

¶8             Jones argues that insufficient evidence supports his
convictions on aggravated assault against Officer Strnad and discharge of a
firearm at a residential structure. We review de novo the sufficiency of
evidence to support a conviction. State v. Pena, 235 Ariz. 277, 279 ¶ 5, 331
P.3d 412, 414 (2014). In doing so, we view the evidence in the light most
favorable to sustaining the verdicts, resolving all reasonable inferences
against the defendant. State v. Greene, 192 Ariz. 431, 436 ¶ 12, 967 P.2d 106,
111 (1998). Reversible error based on insufficiency of the evidence occurs
only when no probative facts support the conviction. State v. Felix, 237 Ariz.
280, 289 ¶ 30, 349 P.3d 1117, 1126 (App. 2015). The evidence, however, must
be substantial enough for a reasonable person to determine that it supports



                                      3
                            STATE v. JONES
                           Decision of the Court

a verdict of guilty beyond a reasonable doubt. State v. Stroud, 209 Ariz. 410,
411–12 ¶ 6, 103 P.3d 912, 913–14 (2005). Here, sufficient evidence supports
Jones’ convictions for aggravated assault against Officer Strnad and
discharge of a firearm at a residential structure.

¶9            First, substantial evidence supports Jones’ conviction for
aggravated assault against Officer Strnad. As applicable here, a person
commits aggravated assault by intentionally placing a police officer
engaged in the execution of any official duties in reasonable apprehension
of imminent physical injury while knowing or having reason to know that
the victim is a police officer. A.R.S. §§ 13–1203(A)(2), –1204(A)(8)(a). The
record establishes that while Officer Strnad was on duty and dressed in her
police uniform, she pursued Jones on foot after he fled the gun store. During
the pursuit, Jones, while holding a handgun, looked over his shoulder at
Strnad. The officer testified, “I thought he was going to shoot me.”
Consequently, Strnad took cover behind a nearby pillar before running to
the area where Higgins was located. Jones fired at least two shots in the
direction of the officers, and Strnad was concerned for her safety. This
evidence was sufficient for the jurors to conclude that Jones intentionally
placed Strnad in imminent fear of being shot and injured. See In re William
G., 192 Ariz. 208, 213, 963 P.2d 287, 292 (App. 1997) (noting that when
determining one’s state of mind, absent an admission, the court uses
inferences “from all relevant surrounding circumstances”). Accordingly,
based on this evidence, the jurors could reasonably conclude that Jones
committed aggravated assault against Officer Strnad.

¶10           Second, substantial evidence similarly supports Jones’
conviction for discharge of a firearm at a residential structure. A person
commits this offense by knowingly discharging a firearm at a residential
structure. A.R.S. § 13–1211(A). The mental state of “knowingly” requires
only that the defendant “is aware of or believes that [his] conduct is of that
nature or that the circumstance exists” and “does not require any
knowledge of the unlawfulness of the act or omission.” A.R.S. § 13–
105(10)(b). Contrary to Jones’ assertion, evidence that the trailer was his
intended target is not required to sustain his conviction. See State v. Lopez,
234 Ariz. 465, 468 ¶ 13, 323 P.3d 748, 751 (App. 2014) (“The concept of a
transferred mental state has long been recognized in Arizona and applies,
for example, in the ‘bad aim’ situation in which a defendant intends to hit
one party but misses and accidentally hits another. Under that scenario, the
defendant’s felonious intent toward the person he missed is transferred and
deemed to apply to the person he unintentionally hit.”) (citation omitted).




                                      4
                             STATE v. JONES
                            Decision of the Court

¶11           Here, substantial evidence supports Jones’ conviction for
discharging a firearm at a residential structure. The record establishes that
Jones ran through the trailer park where E.M.’s mobile home was located
before firing his weapon. Further, based on Jones’ and the detective’s
respective locations during the gunfight, the evidence shows Jones fired his
weapon in the direction of the trailer park. E.M. testified that, at the time of
the gunfire, he was making coffee when a bullet pierced the wall of his
mobile home and lodged in his refrigerator. The police subsequently
located the bullet in E.M.’s wall, although they could not recover it.
Moreover, Jones and the detective were the only individuals to fire their
weapons around the time the bullet entered E.M.’s home. Based on this
evidence, the jurors could reasonably conclude that Jones knowingly
discharged his firearm in the direction of E.M.’s residence. Consequently,
substantial evidence supports Jones’ convictions for aggravated assault
against Officer Strnad and discharging a firearm at a residential structure.

              2. Jury Instructions and Verdict Forms

¶12           Jones next contends that the verdict forms and final jury
instructions failed to identify the victims for Counts 1, 2, 3, and 9, thereby
violating his right to unanimous verdicts. Because Jones did not raise this
objection at trial, we review for fundamental error only. See State v.
Henderson, 210 Ariz. 561, 567 ¶¶ 19–20, 115 P.3d 601, 607 (2005). To prevail
under fundamental error review, a defendant must prove error, the error
was fundamental, and it caused him prejudice. Id. at ¶ 20. Because the jurors
knew which person was the victim in each count, no error occurred. Jones’
argument rests on the faulty premise that the jurors did not know which
person was the victim in each count. But during closing arguments, the
prosecutor expressly referred to Higgins as the victim of the attempted
murder and one of the aggravated assault allegations and Strnad as the
victim of the other aggravated assault charge. The prosecutor made clear
that the victim of the endangerment charge was E.M. Further, Jones’
counsel made these same distinctions in her closing argument.
Consequently, the jurors knew which person was the victim in each count,
and no error, much less fundamental, prejudicial error, occurred.

              3. Sentencing

¶13         While reviewing the record, this Court identified a
discrepancy between both the sentencing minute entry and order of
confinement and the trial court’s oral pronouncement of Jones’ sentences.
The minute entry and order indicate that the prison terms imposed for
Counts 3 and 5 are to run concurrently with each other and consecutively


                                       5
                            STATE v. JONES
                           Decision of the Court

to the concurrent terms imposed for Counts 6, 7, and 8. However, when the
trial court orally pronounced Jones’ sentences, it ordered the term imposed
for Count 5 to run concurrently with the terms imposed for Counts 6, 7, and
8. The court also noted that the terms imposed for Counts 6, 7, and 8 run
consecutively to the term imposed for Count 3, which contradicts imposing
concurrent terms for Counts 3 and 5 and ordering Counts 6, 7, and 8 to run
concurrently with Count 5. Because we cannot determine from the record
whether (1) the terms imposed for Counts 3 and 5 are to run consecutively
to—or concurrently with—each other; and (2) whether the concurrent terms
imposed for Counts 6, 7, and 8 are to run consecutively to—or concurrently
with—the term imposed for Count 5, we remand to the trial court to make
those determinations. See State v. Bowles, 173 Ariz. 214, 216, 841 P.2d 209,
211 (App. 1992) (“[W]hen there is a discrepancy between the oral
pronouncement of sentence and the minute entry that cannot be resolved
by reference to the record, a remand for clarification of sentence is
appropriate.”).

                             CONCLUSION

¶14          For the foregoing reasons, we affirm Jones’ convictions, but
remand for clarification of the sentences imposed.




                                  :ama




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