State v. Fatty

• Decision Date: 20 May 1986
• Docket Number: No. 1,CA-CR,1
• Citation: State v. Fatty, 150 Ariz. 587, 724 P.2d 1256 (Ariz. App. 1986)
• Parties: STATE of Arizona, Appellee, v. Darrell Kay FATTY, Appellant. 9432.
• Court: Arizona Court of Appeals

Page 1256

724 P.2d 1256

150 Ariz. 587

STATE of Arizona, Appellee, v.Darrell Kay FATTY, Appellant.

No. 1 CA-CR 9432.

Court of Appeals of Arizona Division 1, Department C.

May 20, 1986.

[150 Ariz. 588] Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Crim. Div., Joseph T. Maziarz, Asst. Atty. Gen., Phoenix, for appellee.

Kathleen Kelly Walsh, Flagstaff, for appellant.

OPINION

SHELLEY, Judge.

AppellantDarrell Kay Fatty was charged by indictment with three counts of sexual assault, one count of kidnapping, one count of aggravated assault and one count of burglary.The state filed a motion to amend the indictment to allege the dangerous nature of the felonies.The trial was to a jury, which found appellant guilty on all six counts.The jury found all offenses, except the second and third sexual offenses, to be dangerous.Before sentencing, on the motion of appellant, the court ordered a presentence psychiatric evaluation by Dr. Dean Gerstenberger.

Appellant was sentenced to 20 years each for sexual assault, dangerous, and kidnapping, dangerous.He also received 12 years on each count of sexual assault, nondangerous; seven years for burglary, dangerous; and 2.5 years for aggravated assault, dangerous.The kidnapping and burglary sentences were to run concurrently with each other but consecutively to the other sentences.The other four sentences were concurrent with each other.Appellant timely filed a notice of appeal.

The facts, briefly, are as follows, viewed in the light most favorable to sustaining the conviction.State v. Olivas, 119 Ariz. 22, 579 P.2d 60(App.1978).On May 10, 1985, the victim went to bed in her trailer home in Flagstaff, Arizona.On the morning of the 11th, she awoke to find a man over her, with a stocking over his face.She struggled with him.He put his hand over her nose and mouth.He turned her over, tied her hands behind her back with her bathrobe sash, turned her over again, and shoved a cloth in her throat.At first the victim thought she was going to die from suffocation by the cloth, but she worked the object out of her throat to the point where she could breathe through her nose.The assailant then proceeded to commit three separate sexual assaults.Afterwards, the assailant fell asleep on the victim's bed, and the victim managed to escape to the trailer of a friend.

The police were called and they found the assailant asleep on the victim's bed.Appellant was taken to the police station, where he was interviewed by Detective Costa.Appellant's initial comment to Costa was, "Boy, I think I've got myself in a lot of trouble this time."Appellant, after being given his rights by Detective Costa, signed a waiver of rights form.The appellant then proceeded to detail the events of the night, admitting the three sexual assaults.He also made a written statement.

At trial, the major issue of contention was whether appellant had put a cloth material in the victim's throat and whether that action made the crimes "dangerous" pursuant to A.R.S. § 13-604(K).Appellant's admissions to the police had mentioned nothing about the cloth.The victim said nothing about the cloth in her initial interview with Detective Costa, but she referred to it in the written report Costa asked her to prepare.She had also told the doctor who interviewed her in the emergency room about the cloth.After later reflection, and examining her bedroom, the victim believed that one of her socks was the cloth used by the appellant.After the state rested, the defense moved for a directed verdict on the allegations of dangerousness.The motion was denied.

The first issue presented by appellant is whether the trial court erred by failing to direct a verdict as to the allegations of the use of a dangerous instrument, to-wit, the sock.Appellant contends there was insufficient evidence that the sock was actually in the victim's throat or impaired her breathing.He argues that the cloth was merely in her mouth, and that she could, at all times, breathe through her nose.He contends that, therefore, the "cloth material was never in a position to cause any harm to the victim."The state argues that it was a jury question whether the sock was in a position to harm the victim.

The Arizona statutes define "dangerous" instrument as "anything that under the circumstances in which it is used, attempted to be used, or threatened to be used is readily capable of causing death or serious physical injury."A.R.S. § 13-105(7)(emphasis added).Appellant does concede that a piece of cloth shoved down the throat could cause death.As noted in State v. Befford, 148 Ariz. 508, 715 P.2d 761(1986), "most household items, 'under the circumstances', could conceivably be used as a deadly weapon."715 P.2d at 763.Appellant's argument appears to be that because the cloth was never actually in the throat, only in the mouth, it was not "readily capable" of causing death.We do not agree.

In State v. Borbon, 146 Ariz. 392, 706 P.2d 718(1985), the defendant went up to the attendant's booth at a self-service gas station and began hitting the booth with a tire iron.The booth was locked and the windows were made of bulletproof glass, so the defendant could not get into the booth to harm the attendant.Defendant argued he was entitled to a directed verdict because the state had failed to prove that the tire iron was "readily capable" of causing physical injury.He argued that the evidence showed the defendant could not cause injury because of the construction of the booth.The Arizona Supreme Court disagreed, stating that the "[d]efendant began hitting the door so violently that the occupant was concerned that defendant would be able to break down the door and harm him.We find this evidence sufficient to satisfy the statutory language...."146 Ariz. at 397, 706 P.2d 718.

In this case, the victim clearly testified about her fear regarding the cloth.She testified:

A.He was forcing with his fingers this down my throat.I started panicking and I couldn't--when it got down to maybe about here, I couldn't breathe and I couldn't get any air, it was blocked, and I just--well, I was afraid that I was going to die, and it was about maybe 30 seconds that it was blocked and I couldn't get any air.

Q.Were you able eventually to get some air?

A.Yes.

Q.Would you tell the jury how you accomplished that?

A.I was able to move the gag out of my throat with my tongue, trying to ease it up out of there so I could breathe.At some point I was able to start breathing through my nose also.

Q.Did this object in your throat cause you to react in any way, did you choke or gag or anything like that?

A.I was feeling like I was gagging.

Dr. William Wilson, who treated the appellant in the emergency room at Flagstaff Medical Center, testified that the victim told him the defendant had stuck something in her throat.He testified that the word "throat" appearing in his report, was her word, not his.He testified that if an object is in the throat and is obstructing breathing, it is life-threatening.He testified a lack of air may cause brain damage.He testified the obstruction may cause death within seven to eleven minutes, if not removed.

Appellant contends that the evidence shows that the victim could always breathe through her nose.This misstates the testimony.Despite cross-examination which attempted to establish the above position, the victim testified, "I believe I had to move the sock [to breathe]" and "I was not always able to breathe, no".We may take judicial notice of the fact that if a person cannot breathe, that person will die.Moreover, Dr. William Wilson testified as to the specifics of asphyxiation.Along with appellant's testimony, this was adequate evidence to support the jury's finding that the appellant employed a dangerous instrument.

Appellant's next argument is that, even if the finding that the first sexual assault was "dangerous" was not erroneous, the finding that the kidnapping involved the use of a dangerous instrument was erroneous because the kidnapping was completed before the sock was used.He argues that the kidnapping was complete when he first touched her by putting his hand over the victim's mouth and nose.

We, however, concur with the state's position that the use of the sock was part of the restraint used in connection with the infliction of the first sexual offense.SeeA.R.S. § 13-1304(A)(3).The appellant took several steps to restrain the victim prior to the occurrence of the act of vaginal intercourse.He first placed his hand over her mouth and nose.He ordered her to stop screaming, and she assented to this.He then tied her hands behind her with her robe sash, and put the sock in her mouth.He was then restraining her by putting his weight on her body.Only when all of the above were accomplished did he commit the first sexual assault.

Appellant's assertion that the kidnapping was complete when he put his hand over her mouth and nose is true in one sense.The appellant could at that point have been charged with kidnapping, even if he had gone no further.However, the kidnapping, i.e., the restraint, was not actually "completed" until the appellant completed the sexual assaults and the victim fled from the trailer.The sock was clearly used during the course of the restraint.Thus, the jury had sufficient evidence to find the kidnapping charge to be dangerous and the trial court did not err by failing to direct a verdict on this point.

Illustrating the point is State v. Romero, 135 Ariz. 102, 659 P.2d 655(App.1982).Defendant was unarmed when he entered the victim's home, but armed himself with a weapon taken during the burglary.He was tried and convicted for first-degree burglary (burglary while armed).He argued he could not be convicted because he was not armed when he entered the residence.Division 2 of this court rejected the argument and affirmed the...