State v. Sanchez1/30/2004
MEMORANDUM DECISION
Not for Publication Rule 111, Rules of the Supreme Court
After a two-day trial, a jury found appellant Nasario Sanchez guilty of four counts of aggravated assault using a dangerous instrument, dangerous nature offenses, and one count of willfully fleeing or attempting to elude a pursuing law enforcement vehicle. Based on the jury's verdicts, the trial court sentenced Sanchez to enhanced, presumptive, concurrent prison terms of 7.5 years on the aggravated assault convictions and to a consecutive, presumptive prison term of 1.5 years on the unlawful flight conviction. On appeal, Sanchez challenges only the enhancement of his sentences under A.R.S. § 13-604(I). Relying on Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 147 L. Ed. 2d 435 (2000), and A.R.S. § 13-604(P), he argues the trial court should have required the jury to separately find that the aggravated assaults he committed were of a "dangerous nature." Because the jury's verdicts reflect that it made such findings, however, we affirm.
BACKGROUND
We view the facts, which are largely undisputed, in the light most favorable to sustaining the convictions. State v. Morgan, 204 Ariz. 166, , 61 P.3d 460, (App. 2002). In September 2002, while looking for vehicles "possibly loaded [with] undocumented aliens," a United States Border Patrol agent noticed a Suburban containing, according to the agent, "ten or more bodies attempting to crouch down in the vehicle." The agent also noticed a van, driven by Sanchez, traveling in front of the Suburban. As the agent began following the vehicles, the Suburban accelerated and passed the van. The van was then between the agent's vehicle and the Suburban. The agent made three attempts to pass the van and continue following the Suburban. Each time, however, the van abruptly swerved in front of the agent's vehicle and prevented him from doing so. The agent testified that, each time the van had swerved, he had feared for his safety.
In response to calls over his radio, a Bisbee police officer joined the pursuit, eventually passed the Border Patrol agent's vehicle, and positioned his patrol car directly behind the van. The van suddenly "came to an abrupt stop" but then continued moving. The officer testified that, when the van had quickly stopped, his car had made "minor contact" with it. The officer further testified that the actions of the van had caused him to fear for his safety.
Sanchez eventually stopped the van, and the officers arrested him. Other officers later found the Suburban empty and apparently abandoned on the side of the road; its occupants were never found. This appeal followed Sanchez's ensuing jury trial, conviction, and sentencing.
DISCUSSION
Section 13-1203(A)(2), A.R.S., provides that " person commits assault by... ntentionally placing another person in reasonable apprehension of imminent physical injury." Under A.R.S. § 13-1204(A)(2), simple assault is elevated to aggravated assault if " person... commits assault as defined in § 13-1203" and does so "us a... dangerous instrument." A motor vehicle can constitute a dangerous instrument. State v. Orduno, 159 Ariz. 564, 566, 769 P.2d 1010, 1012 (1989) (" nder certain circumstances, an automobile may be considered a dangerous instrument for purposes of A.R.S. § 13-604...."); State v. Carrillo, 128 Ariz. 468, 626 P.2d 1100 (App. 1980) (aggravated assault conviction based on defendant's use of car to strike victim affirmed); see also A.R.S. § 13-105(11) ("'Dangerous instrument' means anything that under the circumstances in which it is used, attempted to be used or threatened to be used is readily capable of causing de
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