THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

Not for Publication Rule 111, Rules of the Supreme Court

MEMORANDUM DECISION

KELLY, Judge.

¶1 After a jury trial, appellant David Alley was convicted of one count of aggravated assault with a dangerous instrument and two counts of misdemeanor assault. After finding Alley had two historical prior felony convictions and had been on probation when the instant offenses were committed, the trial court sentenced him to an enhanced, presumptive prison term of 11.25 years for the felony conviction and concurrent sentences of ninety days incarceration, with time considered served, for the misdemeanors. Counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), avowing she has reviewed the record and found no arguable question of law to raise on appeal and asking that we search the record for fundamental error. In compliance with State v. Clark, 196 Ariz. 530, ¶ 32, 2 P.3d 89, 97 (App. 1999), counsel also has provided "a detailed factual and procedural history of the case with citations to the record, [so] this court can satisfy itself that counsel has in fact thoroughly reviewed the record." Alley did not file a pro se, supplemental brief.

¶2 In our review of the record pursuant to Anders, we identified an arguable issue of fundamental error and asked the parties to file supplemental briefs addressing whether double jeopardy principles preclude Alley's two convictions for misdemeanor assault, as lesser-included offenses on charges of aggravated assault based on A.R.S. §§ 13-1203(A)(1) (intentionally, knowingly or recklessly causing physical injury) and 13-1204(A)(3) (assault causing temporary but substantial disfigurement or temporary but substantial loss or impairment), when the jury also found him guilty of aggravated assault based on §§ 13-1203(A)(1) and 13-1204(A)(2) (assault committed using deadly weapon or dangerous instrument). See Penson v. Ohio, 488 U.S. 75, 83-84 (1988) (briefing on arguable issue required); State v. Price, 218 Ariz. 311, ¶ 4, 183 P.3d 1279, 1281 (App. 2008) (conviction for both greater offense and its lesser-included offense violates double jeopardy principles and constitutes fundamental, prejudicial error).

¶3 Viewed in the light most favorable to upholding the jury's verdicts, see State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999), the evidence established that Alley had struck R.H. in the head with a flashlight. Alley was charged with one count each of aggravated assault with a deadly weapon or dangerous instrument, aggravated assault causing temporary but substantial disfigurement or impairment, based on the victim's alleged loss of consciousness, and aggravated assault causing temporary but substantial disfigurement or impairment, based on the use of surgical staples to treat the victim's laceration. The jury convicted Alley of aggravated assault with a dangerous instrument and acquitted him of the other two counts of aggravated assault, but found him guilty of a lesser-included misdemeanor assault for each of those two counts.

¶4 In its supplemental brief, the state concedes that Alley's misdemeanor assault convictions violate double jeopardy principles, because all three of the aggravated assault charges were predicated on the same simple assault under § 13-1203(A)(1), and that simple assault is encompassed by his conviction for aggravated assault with a deadly weapon or dangerous instrument. In other words, his convictions for misdemeanor assault did not require "`proof of an additional fact'" not already required for his conviction on the greater charge of aggravated assault with a deadly weapon. State v. Siddle, 202 Ariz. 512, ¶ 10, 47 P.3d 1150, 1154 (App. 2002), quoting Brown v. Ohio, 432 U.S. 161, 166 (1977). Accordingly, the state acknowledges we should vacate Alley's misdemeanor convictions. See State v. Welch, 198 Ariz. 554, ¶ 13, 12 P.3d 229, 232 (App. 2000). We agree.

¶5 We otherwise conclude substantial evidence supported findings of all the elements necessary for Alley's aggravated assault conviction, see §§ 13-1203(A)(1) and 13-1204(A)(2), and his sentence is authorized by law, see A.R.S. § 13-703(C) and (J). Our examination of the record pursuant to Anders has revealed no other reversible error or arguable issue warranting further appellate review. See Anders, 386 U.S. at 744. Accordingly, we vacate Alley's two misdemeanor assault convictions and sentences, but affirm his conviction and sentence for aggravated assault.

GARYE L. VÁSQUEZ, Presiding Judge, PHILIP G. ESPINOSA, Judge, concurring.