Arizona Attorney - December 2013

aggravated assault under Arizona law is not necessarily a dangerous offense given that an attempt does not require that all the elements of the offense be present for the commission of an attempt, yet only that a defendant took a step to further that conduct. Moreover, as §§ 13- 704 and 13-907(D) both employ the definition of “dangerous offense” provided in § 13-105( 13) (i.e., a dangerous offense is “an offense involving the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument or the intentional or knowing infliction of serious physical injury on another person”), a trial court may rely on a plea related conviction’s designation of an offense as non-dangerous to find a defendant eligible to apply for relief to set aside their conviction. State v. Copeland, 2 CA-SA 2013-0057 9/30/13.

A trial court does not err by
denying a defendant’s motion
to dismiss a child molestation
charge filed 10 years after the
victim first reported the offense
to police where the record indi-
cates the state decided not to
prosecute earlier because it
found the evidence subject to
reasonable doubt. Although the
Due Process Clauses of the Fifth
and Fourteenth Amendments pre-
vent the state from bringing crimi-
nal charges against a person when
it has unreasonably delayed doing
so, to establish that pre-indictment
delay has denied a defendant due
process there must be a showing
that the prosecution intentionally
delayed proceedings to gain a tacti-
cal advantage over the defendant
or to harass him, and that he has
actually been prejudiced by the
delay. A trial court errs by failing to
give a Willits instruction related to
the purposeful destruction of a
videotaped interview of the victim
in such a child molestation case in
which former police policy called
for the destruction of evidence
within 6 to 12 months of closing a
case and the evidence may have
been exculpatory given that the
victim’s later alleged abuse at the
signs are prohibited except where
the prohibition is precluded by law,
any impairment is not substantial.

The statute applies retroactively to existing CC&Rs. Hawk v. PC Village Ass’n, Inc., 1 CA-CV 12-

0362, 9/3/13.

COURT OF APPEALS CRIMINAL MATTERS

In a case in which a defendant was originally indicted for aggravated assault for which the dangerous nature of the crime was also alleged, a respondent judge does not abuse her discretion by granting a motion to set aside the defendant’s plea-related conviction for attempted aggravated assault for which the dangerous nature of the crime was dismissed as part of the plea, even though A.R.S. § 13-907(D) precludes relief for convictions “[i]nvolving a dangerous offense” as defined in § 13-105( 13).

Although § 13-907(D)( 1) provides
that the section “does not apply” to
a person convicted of a “dangerous
offense,” the crime of attempted
time of indictment was substantial-
ly greater than that documented
in contemporary police reports. A
trial court may err by admitting
sexual propensity evidence if its
analysis is flawed under Rule
404(c), ARIZ.R.EVID. State v.
Glissendorf, 2 CA-CR 2012-0405,
9/30/12.

A trial court does not respectively err under either the Fifth or Sixth Amendments by refusing to suppress a defendant’s pre- and post-arrest statements made after being shot in the chest during the crime requiring emergency surgery and subsequent hospitalization with the pain medication, where no evidence was presented at the suppression hearing that the defendant was strongly medicated, in critical condition and/or that he did not understand what was happening at the time of his interrogation rendering his statements involuntary, and where he had not only been properly advised of his rights to remain silent and to counsel under