                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                  CHARLES THOMAS LOWE, Appellant.

                             No. 1 CA-CR 15-0152
                               FILED 3-29-2016


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-103670-001
                  The Honorable Daniel J. Kiley, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Carlos Daniel Carrion
Counsel for Appellant
                             STATE v. LOWE
                            Decision of the Court



                      MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Andrew W. Gould and Judge Margaret H. Downie joined.


G E M M I L L, Judge:

¶1             Charles Lowe appeals from his conviction and sentence for
one count of aggravated assault, a class 3 dangerous felony. Lowe contends
the trial court erred in failing to hold an aggravation hearing to allow the
jury to determine the dangerousness allegation. Although the court erred,
no timely objection was made, and therefore this court reviews only for
fundamental, prejudicial error. We conclude Lowe cannot demonstrate the
prejudice required for a reversal, and we thus affirm.

                              BACKGROUND

¶2             In January 2014, J.A. travelled from New Jersey to Phoenix to
see S.P., his longtime girlfriend. The following night, J.A. and S.P. were
awakened by Lowe knocking on the door of the apartment. Lowe was an
acquaintance of S.P.’s who paid her rent and had given her money for
expenses on several occasions. S.P. told J.A. to stay behind in the bedroom
and opened the front door to speak with Lowe. J.A. left the bedroom to
confront Lowe in the living room, and Lowe struck J.A. in the face with a
large metal flashlight, rupturing his eye. Ultimately, J.A. lost his right eye.

¶3            Several days later, S.P. saw Lowe driving on her street and
called 911. She followed Lowe, giving officers his location until they found
and arrested him. The State filed a direct complaint against Lowe alleging
two counts of aggravated assault, a class 3 dangerous felony. Count 1
alleged assault causing serious physical injury and Count 2 alleged assault
with a deadly weapon or dangerous instrument. Both counts included
allegations of dangerousness.

¶4            At trial, the parties discussed preliminary jury instructions on
dangerousness. The parties agreed dangerousness was inherent in the
elements of the crime, and Lowe did not object to adding dangerous offense
language to the instructions. After the jury retired to deliberate, the trial
court asked the State whether it intended to request an aggravators hearing.
The State responded that it did not, on the assumption that dangerousness



                                      2
                            STATE v. LOWE
                           Decision of the Court

was inherent in the offense. Lowe did not object during the discussion and
did not request an aggravation hearing.

¶5            The jury found Lowe guilty on Count 1 and not guilty on
Count 2. The trial court sentenced Lowe under Arizona Revised Statutes
(“A.R.S.”) section 13-704 as a dangerous non-repetitive offender to a
mitigated term of 5 years with credit for 71 days of pre-sentence
incarceration. Lowe appeals, and we have jurisdiction under Article 6,
Section 9, of the Arizona Constitution and A.R.S. §§ 12–120.21(A)(1), 13-
4031 and 13-4033.
                               ANALYSIS

¶6            Lowe contends the trial court erred by failing to hold an
aggravation hearing to allow the jury to determine the dangerousness
allegation. Because Lowe did not object to the jury instructions at trial or
to the absence of a separate jury determination of dangerousness, we
review only for fundamental error. State v. Felix, 237 Ariz. 280, 284, ¶ 13
(App. 2015). Lowe must therefore show both that fundamental error exists
and that he was prejudiced by the error. State v. Henderson, 210 Ariz. 561,
567, ¶ 20 (2005).

¶7            Lowe contends the trial court’s determination that
dangerousness was inherent in the aggravated assault offense lessened the
State’s burden of proof. He compares the mental state required for
aggravated assault under A.R.S. §§ 13-1203(A)(1) and 13-1204(A)(1) with
the mental state required for dangerousness under A.R.S. § 13-105(13).
Under § 13-1203(A)(1), a person commits assault by “[i]ntentionally,
knowingly or recklessly causing any physical injury to another person.”
(Emphasis added). A dangerous offense under § 13-105(13) 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.” (Emphasis added).

¶8             Lowe argues the jury could have found that his actions were
reckless but not intentional or knowing; in essence, guilty of aggravated
assault but with no dangerousness finding. See State v. Bowling, 151 Ariz.
230, 233 (App. 1986). He contends dangerousness is therefore not inherent
in aggravated assault (serious physical injury), and the State has the burden
to prove beyond a reasonable doubt the dangerousness allegation under the
intentional or knowing standard. Finally, Lowe asserts that under State v.
Hunter, 142 Ariz. 88 (1984), an instruction that does not correctly instruct
the jury as to the State’s burden of proof is fundamental error.




                                     3
                             STATE v. LOWE
                            Decision of the Court

¶9            We agree with Lowe, as does the State, that the trial court
erred in not allowing the jury to decide the dangerousness allegation. We
need not determine if the error was fundamental, however, because Lowe
cannot establish the required prejudice to warrant reversal. See State v.
Valverde, 220 Ariz. 582, 586, ¶¶ 14–17 (2009) (defendant could not show
prejudice so the court “need not address here” whether the trial court’s
omission of an instruction was fundamental error). His argument is that
there was a likelihood the jury may have found he committed the offense
recklessly. We disagree, however, because no reasonable jury could have
found that Lowe’s actions were anything other than intentional or knowing.
See State v. Munninger, 213 Ariz. 393, 395, ¶ 4 (App. 2006) (explaining the
defendant’s burden to show prejudicial error in a fundamental error
review).

¶10           The State’s theory was that Lowe attacked J.A. In contrast,
Lowe testified that J.A. was the initial aggressor and he struck J.A. in self-
defense. Under either theory, his mental state could not have been merely
reckless when he struck J.A. causing serious physical injury. See State v.
Ruelas, 165 Ariz. 326, 328–29 (App. 1990) (citing State v. Prewitt, 104 Ariz.
326, 332 (1969)) (concluding use of force in self-defense is an intentional act).
Because no reasonable jury could find that Lowe was merely reckless when
he injured J.A., he cannot establish prejudice from the trial court’s decision
not to have the jury specifically determine the dangerousness allegation.

                               CONCLUSION

¶11           For the foregoing reasons, we affirm the conviction and
sentence.




                                    :ama




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