State v. Real, 1 CA-CR 11-0423

CourtCourt of Appeals of Arizona
Writing for the CourtDONN KESSLER
PartiesSTATE OF ARIZONA, Appellee, v. OSCAR ROBLES REAL, Appellant.
Docket NumberNo. 1 CA-CR 11-0423,1 CA-CR 11-0426,1 CA-CR 11-0423
Decision Date27 December 2012


No. 1 CA-CR 11-0423
1 CA-CR 11-0426


Dated: December 27, 2012

See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)

Appeal from the Superior Court in Maricopa County

Cause No. CR2009-005605-001

The Honorable Roger E. Brodman, Judge


Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
And Robert A. Walsh, Assistant Attorney General
Attorneys for Appellee


Bruce Peterson, Office of the Legal Advocate
By Thomas J. Dennis, Deputy Legal Advocate
Attorneys for Appellant



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¶1 Defendant-Appellant Oscar Robles Real ("Robles")1 was tried and convicted of two counts of aggravated assault and a resulting automatic probation revocation. Counsel for Robles filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Finding no arguable issues to raise, counsel requests that this Court search the record for fundamental error. Robles submitted a supplemental brief in propia persona, presenting issues of witness perjury, prosecutorial misconduct, improper denial of a mistrial, and erroneous evidentiary rulings. For the reasons that follow, we affirm Robles's conviction but modify his sentence to increase his presentence incarceration credit.


¶2 While on patrol in a fully marked police vehicle, two Phoenix Police Officers, J.M. and R.S., saw Robles driving a blue truck on Roosevelt Street, "yelling out the window" and "shaking his fist." They turned on their lights and sirens and pursued the truck, wanting to "[make] sure [Robles] was okay." Robles ignored the lights and siren at first, but eventually "stopped . . . abruptly."

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¶3 Once pulled over, Robles started to walk towards R.S. with clenched fists. Robles then began "swinging at him and hit him . . . in the head area," and then "immediately turned around and started running." R.S. chased after Robles, and grabbed him by his jacket. Robles started "blindly" swinging at the officer and "hit him in the head a couple times." R.S. lost his grip on Robles, but J.M. was able to bring him to the ground. The fight continued with Robles continuing to strike the officers with what one officer testified was "uncanny strength."

¶4 After about five minutes, other police officers arrived. It took at least four officers to get Robles into custody. J.M. testified that, in total, Robles elbowed, punched, or kicked him approximately ten to fifteen times and that he was so sore, he "felt like somebody had hit [him] with a truck." Both J.M. and R.S. testified that just after the fight, R.S. clutched his side in pain and had trouble catching his breath. J.M. testified that after the fight, R.S. began "coughing all the time," and before the fight, he never knew R.S. "to become very fatigued by routine tasks" or "to clutch his . . . left or right side of his lungs." Sergeant M.T., R.S.'s supervisor at the time of the incident, testified that R.S. had good physical performance before the date of the fight, and after the fight, R.S.'s physical performance changed. R.S.

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was eventually diagnosed with a paralyzed and elevated diaphragm.

¶5 The State's medical witness, Dr. R.B., testified that R.S. suffered from phrenic nerve damage that was caused by the blunt-force trauma he sustained in the fight. Robles called two of R.S.'s other treating physicians as witnesses who testified that R.S. reported his symptoms began four months before the fight with Robles. Robles introduced other evidence to establish that R.S.'s injured diaphragm could have been caused by incidents of trauma other than the fight with Robles. R.S., however, denied that the symptoms existed before the fight.

¶6 The jury found Robles guilty of aggravated assault against R.S. (Count 1) and J.M. (Count 2). The jury found as an additional aggravator that the assault caused physical, emotional, or financial harm to R.S., but did not make this finding as to J.M. The trial court sentenced Robles to an aggravated term of eight years on Count 1 and a presumptive term of 1.5 years on Count 2, to run consecutively and requiring absolute discharge of Count 1 before sentence on Count 2 began. The court also revoked Robles's probation and left the probation violation as an undesignated felony but did not assign prison time for that offense. This Court granted Robles's motion to

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consolidate his appeal on the assault case with his appeal on his probation revocation.


¶7 In an Anders appeal, this Court must review the entire record for fundamental error. Error is fundamental when it affects the foundation of the case, deprives the defendant of a right essential to his defense, or is an "error of such magnitude that the defendant could not possibly have received a fair trial." See State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005); State v. Gendron, 168 Ariz. 153, 155, 812 P.2d 626, 628 (1991).

¶8 After a thorough review of the record, we find no error warranting reversal of Robles's convictions. The record reflects Robles had a fair trial and all proceedings were conducted in accordance with the Arizona Rules of Criminal Procedure. Robles was represented by counsel at all critical stages of trial, was given an opportunity to speak at sentencing, and the sentences imposed were within the range for Robles's offenses.

I. Sufficiency of the Evidence

¶9 In reviewing the sufficiency of evidence at trial, "[w]e construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences

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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 where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)).

¶10 Robles was convicted of two counts of aggravated assault pursuant to Arizona Revised Statutes ("A.R.S.") section 13-1204(A) (Supp. 2012).2 A person commits aggravated assault if he "commits assault as prescribed by [A.R.S.] § 13-1203 [and] . . . the person causes serious physical injury to another . . . [or] the person commits the assault knowing or having reason to know that the victim is . . . a peace officer . . . engaged in the execution of any official duties." A.R.S. § 13-1204(A)(1), (A)(8)(a). A person commits assault pursuant to A.R.S. § 13-1203(A) (2010) by "[i]ntentionally, knowingly or recklessly causing any physical injury to another person."

A. Aggravated Assault Against Officer R.S.

¶11 The State presented sufficient evidence to convict Robles of a class 2 felony for aggravated assault, which

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required the jury to find that R.S. suffered a "serious physical injury."3 First, the evidence was sufficient for the jury to reasonably conclude that Robles acted intentionally, knowingly, or recklessly. The officers testified that they stopped Robles because he was shaking his fists and shouting at the officers while he was driving, and that upon opening the car door, Robles walked toward R.S. with clenched fists. Second, the jury could also reasonably conclude that Robles caused R.S. to suffer a serious physical injury. A "serious physical injury" is an injury that "creates a reasonable risk of death, or that causes serious and permanent disfigurement, serious impairment of health or loss or protracted impairment of the function of any bodily organ or limb." A.R.S. § 13-105(39) (Supp. 2012). Testimony established that R.S. suffered from phrenic nerve damage that caused him to experience severe shortness of breath and chronic coughing, and that his injury was consistent with a blunt-force trauma to the neck area. Witnesses testified that R.S.'s physical performance diminished after he was injured and that he frequently became very fatigued while engaged in routine

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tasks. Testimony further established that R.S.'s symptoms began immediately after the fight with Robles, during which Robles hit him in the neck and head area several times. Finally, the jury could reasonably conclude that Robles knew or should have known that R.S. was a peace officer. It is undisputed that at the time of the assault, R.S. was on duty, wearing his uniform, and driving a fully-marked police vehicle.

B. Aggravated Assault Against Officer J.M.

¶12 For these same reasons, there was sufficient evidence for the jury to conclude that Robles acted intentionally, knowingly or recklessly and that Robles knew or should have known J.M. was a peace...

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