State v. Angle, 1

CourtCourt of Appeals of Arizona
Citation720 P.2d 100,149 Ariz. 499
Docket NumberCA-CR,No. 1,1
PartiesSTATE of Arizona, Appellee, v. Harold Arthur ANGLE, Appellant. 8506.
Decision Date31 December 1985
[149 Ariz. 501] Barbara A. Jarrett, Asst. Atty. Gen., Phoenix, for appellee


The appellant, Harold Arthur Angle (defendant), was charged with three counts of aggravated assault while armed with a deadly weapon in violation of A.R.S. §§ 13-1203(A)(2), 13-1204(A)(2) and (B). The trial judge instructed the jury with respect to these charges and also, over defendant's objection, gave instructions on the lesser included offenses of attempted aggravated assault. The court refused a request from the defense to instruct on disorderly conduct as a lesser included offense. The jury found the defendant guilty of three counts of attempted aggravated assault and he was sentenced to concurrent terms of imprisonment on each count.

Defendant has couched three of his issues on appeal in terms of error for failure to grant a judgment of acquittal, failure to grant a new trial, and error in instructing on the lesser included offenses. Since each turns upon the sufficiency of the evidence to sustain convictions for aggravated assault or attempted aggravated assault, we will analyze the case in terms of the sufficiency of the evidence. We will then proceed to the question of whether the court erred in failing to give instructions for disorderly conduct as lesser included offenses of aggravated assault.

1. Facts

The evidence presented at trial, considered in a light most favorable to sustaining the verdict, established that several days before the incident in question defendant's wife had defendant transported by ambulance to the Veteran's Administration Hospital. Defendant had, shortly before this, been in a motorcycle accident and also had a history of epileptic seizures. He stayed at the Veteran's Administration Hospital overnight and was released. After he arrived home, defendant's wife heard him speaking angrily in the bedroom. She testified that he appeared upset and began looking for ammunition. Defendant and his wife kept a number of rifles and pistols in their home.

Mrs. Angle continued to ask the defendant what was wrong while he proceeded to look through drawers and closets for approximately 15 minutes for the ammunition. After his wife gave him the ammunition, Angle continued to appear upset and told her that he was leaving. He tried to put his boots on, but she removed them, at one point hitting him in the back with one of the boots. Angle reacted, saying: "Nobody touches me and nobody hurts me." He followed his wife into the living room and pointed a rifle at her. She grabbed the rifle and they fought over it. During the struggle, he told his wife that anybody that hurts him, "is asking for it." Defendant's wife, at some point, fell backwards and hit her head on a table. Angle pointed the gun at her but then put the gun down.

Subsequently, defendant went into the kitchen, kicked a chair over, and began looking in cabinets for his medication. His wife gave him the medication, and he stated, "I've just had it with all this, I have had it with everything, I am going to get a divorce and I'm leaving." He walked into the living room and tore things off the wall and threw things around in that room. He then proceeded into the bedroom where he took all his clothes out of the closet and threw them in the living room. He then threw items in the bedroom, and ripped the telephone out of the wall. Finally, he took a gun and put it to his chin and shut his eyes. His wife grabbed the gun, and it went off.

Mrs. Angle, taking the gun, ran to a neighbor's house yelling for help. The defendant followed her into the neighbor's house where a woman took the gun away from defendant's wife. The defendant left the neighbor's house and the police were called.

When Officers Reed and Davis arrived, they found the defendant standing in the doorway of his home loading a rifle. He told Officer Reed that he had a fight with his wife, and he walked out of the house saying that he was not going to be arrested. He had a .45 caliber pistol in his right hand and a hand grenade in his left hand. He did not point the pistol at the officers. Officer Reed attempted to talk defendant into putting the weapons down. Defendant stated that he would not be arrested and that he would use the hand grenade and take the officers with him.

Officer Reed continued to speak with defendant and talked him into putting the gun down. The officer continued the conversation and defendant put down the hand grenade. He then walked towards the officers. A search of his person revealed a knife in a sheath inside his right boot and an ammunition belt around his waist. The officers took the defendant into protective custody and transported him first to the hospital and then to jail. He told the officers enroute that he was going to kill himself because he had nothing to live for. Officer Nordyke arrived at the hospital and told defendant he would be arrested for assault. When he heard this Angle said that he should have killed the officer when he had the chance. Defendant was released from the hospital and Officer Reed transported him to the jail. He told Officer Reed during the trip that he was going to kill his wife when he got out of jail.

2. Aggravated Assault on the Officers

Defendant contends the trial court abused its discretion in denying his motion for a judgment of acquittal on the charge of aggravated assault. Rule 20(a), Arizona Rules of Criminal Procedure, provides that the trial court may grant a motion for a judgment of acquittal, "if there is no substantial evidence to warrant a conviction." "Substantial evidence" is evidence that reasonable persons could accept as adequate to support a conclusion of a defendant's guilt beyond a reasonable doubt. State v. Edwards, 136 Ariz. 177, 186, 665 P.2d 59, 68 (1983).

Defendant contends that the evidence fails to establish that he committed the offenses of aggravated assault on Officers Reed and Davis. Defendant was charged with a violation of A.R.S. §§ 13-1203(A)(2) and 13-1204(A)(2). Under these statutes, a person commits an aggravated assault by, "intentionally placing another person in reasonable apprehension of imminent physical injury," A.R.S. § 13-1203(A)(2), by use of a deadly weapon or a dangerous instrument. A.R.S. § 13-1204(A)(2). It is the gist of Angle's argument, based primarily upon testimony elicited from the police officers on cross-examination, that the incident only rose to a "potential for assault." Officer Reed testified as follows:

Q And when he walked out he had the gun in the right hand?

A Yes.

Q Grenade in the left hand?

A Yes.

Q And I believe you told me he never moved them except to put them down, did he?

A They were moved, but not--no great distance, no.

Q Well, he never made a pointing or threatening gesture?

A No, sir.

Q Or took aim, or took back with the grenade, did he?

A No, sir.

Q And he followed every order you gave him, didn't he?

A After awhile he did, yes.

Q Didn't you tell me yesterday that he followed every order you gave him?

A Yeah, within time, after talking to him, he did, yes.

Q You went slow just because that's what you're trained to do in that situation?

A Yes.

Q And as he put them down he didn't point them at you, did he?

A No, sir.

Q As you explained the situation to us, the man walked out of the house at your request, is that correct?

A No, he came out on his own.

Q Well, you called to him, called in there, identified yourself, and said, "What's the problem," didn't you?

A Yes, sir.

Q And he walked out, isn't that correct?

A He did.

Q And when he walked out, he didn't rush you?

A No, sir.

Q And he didn't do any of those other gestures, then, that I mentioned with those weapons, is that correct?

A That's correct.

Q And he put both of those weapons down?

A He did.

Q And then you directed him to come toward you?

A I did.

Q And he did. Did he attempt to assault you then?

A He did not.

Q Did he attempt to get away from you or do anything?

A No, sir.

Q Resist you in any manner?

A No.

Q And didn't you tell him you weren't there to arrest anybody?

A I believe I recall stating I was trying to find out what was going on at that time.


Q And you didn't tell him, then, he was under arrest, did you, or that you were going to arrest him?

A No, sir.

Q And you asked him to put down the guns, didn't you?

A That is correct.

Q And he did it, didn't he?

A Yes.

Q When did he assault you?

A The assault occurred when he came out and had that--the potential there for the assault is there. It doesn't take very long to drop a handgun from the raised position and pull the trigger.

Q Was that it?

A That is basically it, yes. The threat, or the action that he made, and he made the threat that he would, yes.

The other officer, Davis, testified:

Q What act of assault did he make upon you?

A He was endangering us with the grenade.

Q He was endangering you maybe with the grenade being there, but what affirmative act did he do attempting to assault you?

A In that case, nothing, there.

Q Where was the assault, then?

A The assault was to his wife.

Q Well, are you aware that he is charged with three counts of assault?

A Yes.

Q On you?

A I did not make the charges of assault against myself and Officer Reed.

Q You, yourself, Officer Davis, honestly have a doubt whether he intended to assault you and Officer Reed, don't you?

A I cannot testify that--no, I think he very much could have pulled the pin on that.

Q Okay. He could have. But you have a doubt whether he actually did intend to assault you, don't you?

A I don't have any doubt at the time. At the time, I was very--

Q Then, why, if you thought he was assaulting you with a live...

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