Facts of the Case

According to the opinion, the defendant got into an altercation one evening outside of a nightclub with another individual. He ended up trying to shoot the individual, but he missed and hit the actual nightclub instead. No one was injured, but the bullets hit a metal tripod inside the building as well as a block wall on the outside of the building.

The defendant was charged with discharging a firearm at a nonresidential structure, aggravated assault, and endangerment. At trial, he argued that he was acting in self-defense, and the jury found him not guilty of aggravated assault and endangerment. The jury did, however, find him guilty of discharging a firearm at a nonresidential structure, and the defendant was sentenced accordingly.

The defendant appealed, asking for a reversal of the guilty conviction.

The Decision

On appeal, the defendant argued that he should not have been found guilty of discharging a firearm at a non-residential structure. According to the defendant, one element of this crime is that the shooter needs to “knowingly” discharge his or her firearm at the building. Here, said the defendant, he intended to shoot the other individual involved in the altercation. He did not mean to hit the building, and thus he could not be found guilty of “knowingly” discharging his gun at the nightclub.

Reviewing the evidence, the higher court ended up agreeing with the defendant. It might be true, said the court, that the defendant was reckless when he hit the building, but there was no evidence to show that hitting the building with a bullet was his ultimate goal. In the absence of this evidence, he could not be found guilty of discharging a bullet at a nonresidential structure; this crime specifically requires that the defendant “knowingly” shot at the building, which was not the case here.

The court then reversed the verdict and sent the case back to the trial court for further proceedings.

Are You Facing Charges for a Violent Crime in Arizona?

At the Law Office of James E. Novak, we come up with effective, creative strategies to get you the results you need when you are facing criminal charges. If you or a loved one has been criminally charged in Arizona, contact our office so we can figure out how to best support you in the litigation process. For a free and confidential consultation, call us today at 480-413-1499. You can also fill out our online form to get in touch with us.

The defendant in the recently decided appeal is a man who was convicted of several felony offenses relating to drugs and weapons that he allegedly had in his vehicle and were discovered after a traffic stop. According to the facts discussed in the appellate opinion, the defendant had been under investigation for several months for alleged drug activity, however, he was initially stopped by a uniformed officer after he was witnessed violating several minor traffic laws. After the defendant was stopped, several rounds of questioning ensued as to his reason for being in the area. The officer also administered field sobriety tests waiting for a K-9 unit to arrive. After some delay, the police dog arrived and alerted the officer to narcotics in the vehicle. A subsequent search of the vehicle discovered significant amounts of drugs and weapons. The defendant was arrested, charged, and ultimately convicted.

After his conviction, the defendant appealed to the Arizona Court of Appeals, challenging the trial judge’s decision to allow the evidence discovered at the traffic stop to be used at trial. The defendant argued that the officer exceeded the scope of the traffic stop and unreasonably delayed the stop in order to allow time for the K-9 unit to arrive and search for the drugs. The appellate court did not completely agree with the trial judge’s ruling that the scope of the traffic stop was not expanded; however, the court upheld the ruling and conviction because the defendant was the subject of an ongoing narcotics investigation, and the law enforcement agents involved all had reasonable suspicion to perform a search based on the evidence gathered in the months-long investigation, as well as what they had witnessed the day of the arrest. As a result of the appellate ruling, the defendant’s conviction will stand, and he will be required to serve out his prison sentence.

Have You Been Arrested for an Arizona Crime?

If you or someone you know has been arrested or charged with a serious Arizona criminal offense, the Law Office of James E. Novak can help you fight the charges and potentially avoid suffering the harsh consequences that can come along with a conviction. Attorney Novak is an experienced Phoenix criminal defense lawyer with the ability to skillfully handle all types of Arizona criminal cases, including Arizona drug charges, weapons offenses, DUI allegations, claims of domestic violence, and other offenses. Attorney Novak can help you develop the best defense against the charge brought against you. To schedule a free consultation and discuss your case today, call 480-413-1499.

Police officers answered a domestic dispute, and the suspect was fatally shot by police.

When the officer arrived on scene, he encountered a woman outside a home.

It was reported that the woman threatened to shoot herself and a friend who was still inside the home with another person.

The officer allegedly believed that the woman was aiming a handgun at him. As a result, he shot, and killed her.

This unfortunate ordeal ended horribly wrong. It was the very worst possible scenario for the suspect.

Other adverse consequences occur. These include the high risk of criminal charges being brought against those involved in the domestic dispute.

The four types of charges often coupled with domestic violence crimes are weapons misconduct, aggravated assault, disobeying police orders, and domestic violence charges.

In this article, we will discuss four types of criminal charges often associated with domestic disputes, that put a person at risk for harm or fatality, as well as risk factors, and criminal defense for the charges.

Any one or more of these criminal charges, in absence of injury can be life altering.

Convictions can jeopardize your freedom, leaving you with a long standing criminal record.

1) Aggravated Assault Charges

An aggravated assault is a felony in Arizona.

Misdemeanor assaults and aggravated assaults are differentiated in that they are either felonies or misdemeanors.

While both types of assault are serious, aggravated assault convictions carry very harsh punishments.

Like weapons misconduct, felony assaults charges can be brought in a number of situations. Any assault that involves the use of a deadly weapon may also be charged as aggravated assault.

A deadly weapon includes any object designed for lethal use, including unloaded firearms.

This does not include permanently inoperable firearms. The definition of firearms also does not include a toy weapon.

The prosecution will have to show that a deadly weapon was used to intentionally, recklessly, or knowingly cause a physical injury to somebody else; placed someone else in reasonable apprehension of being physically injured; or knowingly touch somebody else with the intent to injure, provoke, or insult that person.

Any misdemeanor assault against a peace officer who is engaged in performing official duties can also be charged as an aggravated assault.

When an aggravated assault is based on an assault on a peace officer engaged in his job, charges are brought as class 2 felonies. A presumptive term for a class 2 felony is five years, and an aggravated term is 12.5 years.

2) Weapons Misconduct Weapons misconduct refers to criminal offenses that involve a deadly weapon.

Weapons crimes can be brought when a person knowingly carries a concealed deadly weapon other than a pocket knife, while committing a serious offense or felony.

They can also be brought when a person fails to respond correctly, as to whether or not they are carrying a concealed deadly weapon, upon inquiry by a police officer.

There are numerous ways weapons misconduct can result in a criminal record under Arizona Revised Statute section 13-3102.

In the former situation, weapons misconduct is charged as a class 6 felony.

While, these are not punished as harshly as other felonies in Arizona, they still call for prison time.

The presumptive term for a first-time offender’s conviction for a class 6 felony is one year, while an aggravated term is two years.

However, depending on the circumstances, it is sometimes possible to negotiate to get the felony turned into a class 1 misdemeanor with a lighter sentence.

Failing to answer a police officer accurately about a concealed deadly weapon is a class 1 misdemeanor.

The penalties are not as serious, but you can still end up with a criminal record that affects your ability to secure employment, professional licenses, and housing and it could affect the outcome of future criminal charges.

3) Domestic Violence Charges

In Arizona, according to statistics from the National Coalition for Domestic Violence (NCAVD), the presence of a gun, in the home, increases the chance of fatality by 500 percent. Domestic violence can be a felony or misdemeanor. This determination is made based on the actual crime that was committed.

Some examples include assault, sexual assault, criminal trespassing, violation of a restraining order, neglect, delinquency of a minor, stalking, harassment, incest, and other crimes against a child.

Whether or not the crime is one of domestic violence is determined by the nature of the crime and the relationship between the victim and the accused.

Relationships described in Arizona Revised Statutes 13-3601 include, but are not limited to those between current or former spouses, parents, children, grandparents, siblings, those involved in a romantic relationship, co-habitants, those either related, or in a present or former relationship that do not live together.

In Arizona when charges are brought for a third domestic violence incident, within 7 years, the charges are raised to a felony. This is the case, even if the violation was a misdemeanor.

If a deadly weapon such as a gun is displayed in a domestic dispute, while a person under the age of 15 is present, the suspect will be arrested.

This is the case, whether or not the weapon was used.

It is also the case, whether or not the police officer actually witnessed the display of the weapon. In any event, probable cause would be needed in order to make a lawful arrest.

Under Arizona’s domestic violence law, the police officer’s discretion, they have may seize a firearm temporarily if they learn that one is on the premises, and feel it poses the threat of harm under the circumstances.

In some situations one or more parties will turn on police.

When police are not sure which person is the aggressor, they will often arrest both individuals involved in the dispute.

For the victim, this is adds insult to injury causing a person to become angry and combative towards police.

4) Failure to Obey Police Orders

Arizona Revised Statute section 28-622 prohibits someone from failing to comply with a police officer who has the authority to direct, control, or regulate traffic.

In the incident described above, the woman could have been charged with a failure to comply if the police officer had asked her to put the toy gun down, even though it was not a real firearm.

A failure to obey a police officer is a class 2 criminal misdemeanor.

A class 2 misdemeanor can be punished with a term of imprisonment for a maximum of four months.

High Risk Factors in Domestic Disputes

A recent report was issued by the National Law Enforcement Officers Memorial Fund, which concluded that the deadliest police encounters involve domestic disputes.

Following a recent 5 years study, 684 officer deaths in the line of duty were analyzed. Of those, twenty percent of the officers died of rifle gunshot wounds.

Some of the reasons for this include an escalation of emotions, which is often accompanied by a decrease in logical thinking and reasoning, those involved.

Officers often find it necessary to arrest, or remove one or more of those involved from the home following a heated argument, for the safety of the occupants.

An order from police for one of the parties to leave their own home is often met with resentment and opposition. This alone, can be dangerous for both police and the suspect.

When alcohol and drug abuse is involved, judgment is impaired, which results in increased risk of harm or fatality.

According to statistics from the National Coalition for Domestic Violence, 72% of all murder-suicides in the United States involve intimate partners.

Further, statistics indicate that the existence of an accessible firearm, in the home increases the chance of fatality by 500 percent.

That risk increases to 2,000 percent if there has been a prior history of domestic violence among the individuals.

The officers are well aware of these dangers and exercise vigilance. They often call for back-up officers, for their own protection when called to a domestic dispute.

The police investigation into a domestic dispute begins before they even arrive on scene. When they receive a dispatch for a domestic violence call, one of the first things they do is a background check to see if police have been to the house in the past or if there are prior convictions.

When officers feel threatened, they generally will not take any chances.

Police officers are trained to use force if needed to defend themselves.

This can happen even if what they perceive as a threat, later ends up not being a real threat of harm to the officer.

Criminal Defense Attorney for Aggravated Assault, Weapons Misconduct, Failure to Obey Police Orders, Domestic Violence Charges in Phoenix AZ

If you simply plead guilty, without the guidance and retention of a qualified criminal defense attorney, you will be exposed to a swift conviction and harsh penalties.

It is important in all of these situations to retain experienced legal advocate who can fight for your rights, and provide a strong criminal defense.

No matter how serious your charges may be, you have the right to defend them.

In addition, to protecting your rights, and making sure you are treated fairly, an effective criminal defense attorney may be able to apply specific defenses in your case.

Depending on the circumstances, and strength of the evidence surrounding them, defense strategies can be mounted which can lead to a favorable outcome of your case.

Often, there are mitigating circumstances or facts that can be used to negotiate with the prosecution for a plea deal. In some cases, it may be possible to win at trial by establishing a reasonable doubt.

If your rights were violated or evidence was obtained unlawfully, it often can be suppressed to that it cannot be used to prosecute you.

James Novak, of the Law Office of James Novak, is an experienced criminal defense attorney, and former Maricopa County prosecutor.

Attorney, James defends charges of aggravated assault, failure to obey police orders, domestic violence, and weapons misconduct charges on a regular basis.

If you face active criminal charges in Phoenix, Mesa, Tempe, Chandler, Gilbert or Scottsdale Arizona, James Novak will can provide you with a free and confidential consultation regarding your matter.

If retained, he will tailor and provide a strong defense on your behalf and work to resolve your charges.

Call (480) 413-1499, or contact James Novak today to personally discuss your options for your defense.

Additional Resources:

• Arizona Revised Statutes section 13-3102 (misconduct involving weapons)
• Arizona Revised Statutes section 13-1204 (aggravated assault)
• Arizona Revised Statutes section 28-622 (failure to comply with a police officer)
• Arizona Revised Statutes section 13- 3601 (domestic violence)
• Phoenix Superior Court
• National Law Enforcement Officers Memorial Fund | Police Deadly Encounters

More Articles:

• Aggravated Assault: The High Cost of Harming a Police Officer,
• Assault Convictions Require “Intent” and “Knowledge” or “Recklessness”
• Failure to Comply with Police Orders and Constitutionality Challenges

The Arizona Rules of Criminal Procedure afford parties the right to request a change of judge before trial. But these rights are not without limitations.

In a recent case, an Arizona appellate court reviewed a defendant’s conviction for misconduct involving weapons. The appeal centered around two arguments, one being the defendant’s request for a new judge.

First, defendant had requested a peremptory change of judge under Arizona Rule of Criminal Procedure 10.2, which was denied by the trial court.

Secondly, the defendant challenged the sufficiency of the evidence used to obtain the conviction.

In this article we will also, take a closer look at the arguments, and summarize three concepts related to the Rules of Criminal Procedure for trial, which were addressed in this case:

• The Right of the Parties to Request Change of Judge;
• Special Actions v. Direct Appeals; and
• Judgement of Acquittal

We will also discuss the proceedings, final ruling, the right to bear arms, procedural and evidentiary challenge in trial, and criminal defense for weapons charges.

Prohibited Possessor of Weapons Case

The case arose when officers learned that the defendant, the subject of an outstanding felony arrest warrant, was staying at a house Maricopa County.

The officers received a tip that the suspect was armed. They were informed that the suspect may potentially use a deadly weapon to avoid being captured.

Police called for back-up, and went to the house where they learned the suspect was staying.

There, they detained the defendant, based on the outstanding warrant, and located a .40 caliber bullet in one of his pockets at that time.

Another person who was renting the house confirmed that the defendant was staying there with her and her children.

That individual also informed the officers there was a gun in the house. She voluntarily consented to a search of the home for a weapon.

Police subsequently, found a .40 caliber semi-automatic loaded pistol with a bullet in one chamber, ammunition, an empty pill bottle, and a gun cleaning kit inside a briefcase in a bedroom closet.

Following jury trial the suspect was convicted of knowingly possessing a deadly weapon, as a prohibited possessor.

Court Proceedings

Initially, the defendant was indicted for one count of misconduct involving weapons. The court reassigned the case to a different judge one week before trial.

The day before trial, the defendant filed a notice of change of judge, by right pursuant to Arizona Rules of Criminal Procedure 10.2.

The Court found the request untimely. The defendant was found guilty of the charges, and convicted. He was sentenced to serve 2.5 years in prison.

On appeal, the defendant argued that the trial court erred in denying his request for a peremptory change of judge.

In response, the state argued that the appellate court wasn’t permitted to hear this issue, since the defendant had challenged the ruling by a special action.

In reviewing this issue, the Appeals Court determined that it needed to address whether or not the ruling should be challenged by a direct appeal or special action.

The Appeals Court concluded that a challenge to the denial of a notice of peremptory change of judge must be brought by Special Action, and that it cannot be challenged on direct appeal (State v. Mincey, Arizona 1981).

Further the court ruled that even if this were a special action, the defendant wouldn’t be entitled to relief.

This is because Rule 10.2(c) required the defendant to file the notice of change of judge on the next business day, after receiving notice of the assignment that took place fewer than 10 days before trial.

The defendant also argued that the state did not present enough evidence to support his conviction, so the trial court should have granted his motion for a judgment of acquittal under Rule 20.

The court noted that under A.R.S. § 13-3102(A)(4), someone commits misconduct involving weapons by knowingly possessing a deadly weapon when he or she is prohibited from doing so.

Under A.R.S. § 13- 3101(A)(7)(b), a person is prohibited from possessing guns if they’ve been convicted of a felony inside or outside the state of Arizona, and your civil right to possess or carry a firearm hasn’t been restored.

The defendant did not argue that he was not a prohibited possessor in this case. The parties had stipulated to the defendant’s prior felony conviction.

The defendant had told an officer that he wasn’t allowed to have a gun during a post-arrest interrogation.

However, the defendant argued that there wasn’t enough evidence to show he actually possessed the gun.

In evaluating the possession challenge, the court noted that possession may be actual or constructive (State v. Gonsalves Arizona 2013).

The Court recognized that since the pistol wasn’t found on the defendant it was not actual possession. The next step was to look at whether or not enough evidence was presented to support the concept of constructive possession.

The Court noted that constructive possession applies when the property is found in a place where the defendant has “dominion” (Arizona v. Tyler 1986), or control, and the defendant has actual knowledge of the prohibited property’s existence (Arizona v. Cox 2007; citing Arizona v. Villavicencio 1972).

A defendant is in constructive possession of property if it is found in a place that is under the defendant’s control or “dominion”, and under circumstances from which one can reasonably infer that the defendant actually knew the property existed there.

Direct or circumstantial evidence can be used to show constructive possession, and more than one person can jointly possess the prohibited object.

Someone merely being present in the same place as the prohibited property is not enough to show control or dominion.

In this case, the defendant indicated that he had a briefcase like the one that the officers found, but he didn’t know if that one was his. He had also admitted his was in a closet. The tag on the briefcase referenced Wisconsin, where the defendant’s prior felony was committed.

Additionally, the prescription pill bottle had the defendant’s name on it and was dated less than two months before the arrest. Moreover, the defendant had a .40 caliber bullet in his pocket, which was circumstantial evidence linking him to the pistol.

The Appeals Court noted in its evaluation that that the original tip to the police about the suspect having a gun, appeared to be “hearsay”.

However, it noted that since the defendant did not object on that basis at trial, it may be admitted as competent evidence (Arizona v. McGann 1982).

The court ruled there was enough evidence to show he had constructive possession, and his conviction was affirmed.

Request for Change of Judge

Under Arizona Rules of Criminal Procedure 10.2, Rights of Parties, a person has the right to request a new judge prior to trial by filing a pleading with the court. The request must be in good faith. The court will have reason to deny this request however the moving attorney must disavow that the request is being made for any of the following reasons:

• So that severance may be obtained;

• Interference with the judge’s reasonable case management protocol;

• Prejudice of faith, race, or gender;

• Request of change of the same judge, in a blanket fashion as cited in (State v. City Court of Tucson, 150 Ariz. 99, 722 P.2d 267 (1986) where the prosecution requested a change of judge in every impaired driving case);

• For a more convenient geographical location;

• To secure an advantage or circumvent a disadvantage related to a negotiated plea agreement, with the exception of those allowed by Rules of Criminal Procedure 17.4g.0

Change of Judge Requests – Time Restrictions

Reassignment of a Judge is subject to certain time restrictions. A change of judge may be filed within ten days after:

• The Arraignment, as long as proper notice and assignment is provided;

• The Arizona Appellate Court files a mandate with the Superior Court clerk.

In all other cases when a different judge is assigned to preside over a case less than 10 days before a trial begins, certain time rules apply: Notice of the change is required to be filed with the other parties. The other parties must be in actual receipt of the notice by 5:00 p.m. of the next business day, the earlier of the assignment, or by the start of trial.

When filing the change of judge, the parties are required to provide written notification as to whether or not they have agreed upon a judge who is in a position to take the case. Their request will be honored.

If the parties cannot agree upon a judge then the presiding judge will complete the reassignment immediately.

Special Action v. Direct Appeal

In Arizona the Rules of Criminal Procedure, for trial, allow for Special Actions as part of trial proceedings.

They are used provide a remedy for arguments involved in the case, for example those involving evidence, or rules of procedure.

Generally these take place prior to the completion of the trial

The disputing party begins the process by filing a petition with the court, similar to an Appellate brief.

This differs from a Direct Appeal in which the petition can be filed only following final orders, and appealable judgments.

Arizona Statutes exists that allow for Special Action filing. These are referred to as Statutory Special Actions.

Special Actions are not available where there is an equal and adequate remedy that exists through the filing of a Direct Appeal.

A Direct Appeal is a formal petition in writing asking the Appeals Court to review the decision to make sure rights were not violated, procedures were followed, and laws were interpreted correctly.

Judgement of Acquittal

Arizona Rule 20 of the Criminal Procedures allows for a Judgment of Acquittal on behalf of the defendant. It may take place before the verdict or after the verdict.

An Acquittal is in essence, a “not-guilty” judgment. It is a conclusion that can be reached pursuant to a jury verdict in whole or in part on the counts; motion by the defendant, or by the court itself.

This may be concluded when it is determined that substantial evidence does not exist that would lead to a guilty verdict, or that the state prosecution did not did not satisfy its burden of proof beyond a reasonable doubt.

Criminal Defense for Arizona Prohibited Possessor Charges

Under the Arizona Constitution and United States Constitution persons currently have the right to bear arms.

But these rights are not without limits at both levels.

For example under Arizona Law A.R.S. 13- 3102, is in violation of Weapons Crime Laws if they are convicted of:

• Possess a deadly weapon, while classified as a Prohibited Possessor;
• Possess a Prohibited Weapon as defined by law; or
• Other Misconduct of Weapons as defined by law.

Weapons crimes may be classified as Misdemeanors or Felonies. Both are serious, particularly those brought as felonies.

All felony convictions in Arizona expose a person to prison sentences, large fines, a felony criminal record, and jeopardize a person’s rights in the future to bear arms, even to defend themselves.

It is important to understand your rights if you carry or possess weapons, and the fact that those rights are in jeopardy if you face felony charges.

If you face criminal charges, you should hire an experienced weapons crime defense attorney to protect your rights, and defend your charges.

Due to the multifaceted nature of criminal charges, numerous challenges or defenses may exist, and every possible avenue explored for applicability for criminal defense purposes.

10 Common Defenses Used for Prohibited Possessor Charges

Below are 10 challenges that might apply to prohibited Possessor charges:

• Constitutional Rights violations such as unlawful search and seizure;
• Validity or trustworthiness of “heresay” testimony;
• Lack of constructive or actual possession;
• Lack of knowledge of prohibited property;
• Lack of Dominion where the prohibited property was found;
• Lack of ownership of the firearm;
• Challenges to whether or not the suspect is a prohibited possessor;
• Challenges to whether or not the property is prohibited;
• Violations of Police agency procedures or Rules of Criminal Procedural;
• Insufficiency of Evidence or other trial challenges

Prohibited Possession of Weapons Defense Attorney Mesa, AZ

“Always Prepared to Defend.”

– James Novak, DUI & Criminal Defense Attorney Mesa AZ

James Novak is a highly skilled criminal defense attorney. If retained, James Novak will evaluate your case to determine what defenses apply and tailor your defense. He will determine what challenges if presented are likely to lead to the most favorable resolution in your case.

If you are charged with a gun crime in Arizona, you should consult an experienced criminal defense attorney. James Novak of the Law Office of James Novak provides a free initial consultation for active charges in his area. He can discuss your matter with you, and provide you with options for a defense. Call or contact the Law Office of James Novak today for a confidential and free consultation at (480) 413-1499.

Additional Resources

• A.R.S. § 13-3102 (A)(4) (Misconduct involving weapons)
• A.R.S. § 13- 3101(A)(7)(b) (Definitions related to weapons charges)
• Arizona 13-3925 (Unlawful Search and Seizure; Admissibility of Evidence)
• Requirements and Exceptions to Lawful Search Warrants in Arizona
• Arizona Constitution Article 2, Section 8 (Privacy Rights)
• Arizona Rules of Criminal Procedure | III Rights of Parties | Rules 10.1 & 10.2
• Arizona Rules of Criminal Procedure| Rule 20 | Judgement of Acquittal
• Maricopa County Attorney | Criminal Process

Other Recent Articles of Interest

• Medical Marijuana Users have a Limited DUI Defense; Not General Immunity from Prosecution
• Why Good Juries Reach Bad Verdicts
• Violations of “Search and Seizure” Laws: How they Impact Prosecution,
• U.S. Supreme Court Rules No Warrant Needed To Collect DNA If Arrested,
• Yes, You Have Constitutional Rights At An Arizona Checkpoint