                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                 WILLIAM ALBERT DERRICO, Appellant.

                             No. 1 CA-CR 18-0853
                               FILED 11-26-2019


           Appeal from the Superior Court in Mohave County
                        No. S8015CR201700953
           The Honorable Billy K. Sipe, Jr., Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
                             STATE v. DERRICO
                             Decision of the Court



                        MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge James B. Morse Jr. joined.


C R U Z, Judge:

¶1           William Albert Derrico1 (“Derrico”) appeals his convictions
for aggravated assault with a tire knocker and attempted second degree
murder, arguing that both are supported by insufficient evidence. For the
following reasons, we affirm.

                 FACTUAL AND PROCEDURAL HISTORY

¶2           Derrico and M.W. were friends. Derrico gave M.W. $35 worth
of methamphetamine and, in return, M.W. gave Derrico an electronic tablet.
Both parties were aware that the tablet had a damaged screen.

¶3            A few weeks later, Derrico wanted to reverse the transaction
and asked M.W. for $70 back instead of $35, claiming he bought the tablet
for $70. M.W. offered to buy back the tablet for $35. Derrico threatened
“seven or eight” times to kill M.W. if he didn’t give him $70. Derrico also
told his neighbor that he wanted to shoot M.W. in the head. M.W. later said
he thought that these threats were “nothing,” but he made sure to keep his
“distance away from [Derrico].”

¶4           Early one morning, M.W. was sitting with his dogs in front of
a café when Derrico arrived. According to M.W., Derrico angrily exited his
vehicle, waved a tire knocker2 as if he was going to hit M.W., and yelled at
M.W. about the money, shouting “You’re dead, you’re dead.” M.W. then
ran around the side of the café to avoid Derrico. M.W.’s dogs surrounded
Derrico, and Derrico swung the tire knocker at the dogs. At that point,



1       The documents in the record inconsistently spell Appellant’s name
as William Albert Derrico and William Albert D’Errico. We use the name
listed on the judgment and sentencing minute entry.

2        A tire knocker is a wood stick used to check the air pressure in truck
tires.


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                           STATE v. DERRICO
                           Decision of the Court

Derrico retreated to his vehicle and drove off. M.W. then walked home
with his dogs.

¶5              Upon arriving at his home, M.W. noticed Derrico’s vehicle
quickly approaching. Derrico stopped in front of M.W.’s trailer, pulled out
a firearm, and shot M.W. in the back of the head. M.W.’s head hit the side
of his trailer, and he felt it become numb. Derrico then said, “How’s that
motherfucker,” and quickly drove off. M.W.’s head was bleeding, and he
was taken to the emergency room and treated for a gunshot wound to the
top of his head.

¶6             Shortly after the shooting, detectives and sheriff’s deputies
from the Mohave County Sheriff’s Office contacted Derrico at his residence
and read him Miranda warnings. See Miranda v. Arizona, 384 U.S. 436 (1966).
Derrico admitted that he had “been after” M.W. for weeks to try to “get
even” with him. Derrico then confirmed that he showed up at the café with
a tire knocker and that M.W. fled around the side of the café. Derrico also
admitted that he shot his firearm “up in the air at him,” but that he aimed
over the trailer, hoping to “wake [M.W.] up” and convince him to pay $70
for the tablet. The detectives then seized the firearm and tire knocker from
Derrico’s residence.

¶7           At trial, M.W. testified that Derrico was “wielding [the tire
knocker] around like he was going to hit me with it.” And when questioned
about his apprehension, the following transpired between the defense
counsel and M.W.:

      Q. Right. But like you said, you really weren’t afraid of him
      anyway ‘cause all his threats are just - - are just him, for lack
      of a better phrase, blowing smoke up your butt, right?

      A. Pretty much.

      Q. Okay.

      A. But I was gonna keep my distance anyways.

¶8           The jury found Derrico guilty of attempted second degree
murder, drive by shooting, and two counts of aggravated assault.

¶9           Derrico timely appealed, and we have jurisdiction pursuant
to Arizona Revised Statutes (“A.R.S.”) section 12-120.21(A)(1).




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                            STATE v. DERRICO
                            Decision of the Court

                               DISCUSSION

¶10          “We will reverse a conviction ‘only if no substantial evidence
supports the conviction.’” State v. Denson, 241 Ariz. 6, 10, ¶ 17 (App. 2016)
(citation omitted). Substantial evidence is evidence “that reasonable
persons could accept as adequate and sufficient to support a conclusion of
defendant’s guilt beyond a reasonable doubt.” State v. Jones, 125 Ariz. 417,
409 (1980). “Evidence sufficient to support a conviction can be direct or
circumstantial.” Denson, 241 Ariz. at 10, ¶ 17.

¶11            We review de novo whether the evidence presented is
sufficient to support a conviction. Id. But it would be inappropriate for us
to reevaluate the “evidence to decide if [we] would reach the same
conclusions as the trier of fact.” State v. Guerra, 161 Ariz. 289, 293 (1989).
Rather, we must view the evidence “in the light most favorable to
sustaining the conviction” and draw all reasonable inferences “against the
defendant.” Id.

I.     Aggravated Assault with a Tire Knocker

¶12           Derrico argues that his conviction for aggravated assault with
a tire knocker is not supported by sufficient evidence because he did not
intend to place M.W. in reasonable apprehension of imminent injury, and
M.W. was not in apprehension of imminent injury. We disagree.

¶13            To be guilty of aggravated assault, the defendant must
“[i]ntentionally place[] another person in reasonable apprehension of
imminent physical injury” while using a “deadly weapon.” A.R.S. §§ 13-
1203(A)(2), -1204(A)(2). Prior threats are highly probative to show intent.
State v. Buot, 232 Ariz. 432, 433, ¶ 6 (App. 2013). “Either direct or
circumstantial evidence may prove the victim’s apprehension. There is no
requirement that the victim testify to actual fright.” State v. Wood, 180 Ariz.
53, 66 (1994).

¶14           Contrary to Derrico’s assertion, there is substantial evidence
that he intentionally placed M.W. in reasonable apprehension of imminent
physical injury. Derrico admitted that he had “been after” M.W. for months
to “get even with the little fucker” and that he wanted to “wake [M.W.] up.”
Derrico also confirmed that he went to the café with a tire knocker and that
M.W. fled. Derrico’s recorded admission was played to the jury. Derrico
also made prior threats of physical injury, supporting the conclusion that
he intended to place M.W. in reasonable apprehension of imminent harm.
See Buot, 232 Ariz. at 433, ¶ 6. Finally, although M.W. stated in response to
defense counsel’s questioning that he “[p]retty much” agreed that he wasn’t


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                            STATE v. DERRICO
                            Decision of the Court

afraid of Derrico, that agreement was not precise, and he further testified “I
was [going to] keep my distance anyways” as Derrico was “wielding [the
tire knocker] around like he was [going to] hit me with it” and yelling
“You’re dead, you’re dead.” In fact, M.W. tried to keep away from Derrico
by running around the side of the café. To the extent there is contradictory
evidence, we resolve the inference of M.W.’s apprehension against Derrico.
See Guerra, 161 Ariz. at 293.

¶15           Accordingly, the evidence supports the conclusion that
Derrico intentionally placed M.W. in reasonable apprehension of imminent
physical injury.

II.    Attempted Second Degree Murder

¶16          Derrico argues that his conviction for attempted second
degree murder is not supported by sufficient evidence because he intended
to shoot over M.W.’s head and therefore lacked the specific intent to kill
M.W. or knowledge that his conduct would cause M.W.’s death. We
disagree.

¶17           To be guilty of second degree murder, the defendant must,
without premeditation, “intentionally cause[] the death of another person.”
A.R.S. § 13-1104(A)(1). “[I]n order to commit an ‘attempt’ a defendant must
have an intent to perform acts and to achieve a result which, if
accomplished, would constitute the crime.” State v. Curry, 187 Ariz. 623,
627 (App. 1996) (emphasis omitted); see also A.R.S. § 13-1001. “The offense
of attempted second degree murder requires proof that the defendant
intended or knew that his conduct would cause death.” State v. Ontiveros,
206 Ariz. 539, 542, ¶ 14 (App. 2003). Prior threats are highly probative to
show intent and absence of mistake. See Buot, 232 Ariz. at 433, ¶ 6; see also
Wood, 180 Ariz. at 63 (recognizing that prior threats are relevant to not only
show intent but premeditation).

¶18            In this case, the State presented evidence that Derrico had
“been after” M.W. for weeks and threatened at least seven times to kill
M.W. A neighbor testified that Derrico even said that he was going to
“shoot [M.W.] in the head.” And Derrico did, in fact, shoot M.W. in the
head and yelled “How’s that” after doing so. See State v. Vann, 11 Ariz.
App. 180, 182 (1970) (stating that what a “defendant does or fails to do and
what he says may be evidence” of intent). Derrico’s use of a firearm alone
is sufficient for the jury to infer an intent to kill, and the fact that Derrico
shot M.W. in the head significantly bolsters that inference. See State v.
McIntyre, 106 Ariz. 439, 443 (1970) (noting that use of a deadly weapon is



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                           STATE v. DERRICO
                           Decision of the Court

sufficient evidence of intent). Finally, the jury was not required to accept
Derrico’s self-serving statement that he aimed over M.W.’s head. See State
v. Pieck, 111 Ariz. 318, 320 (1974) (“The jury is not compelled to accept the
story or believe the testimony of an interested party.”).

¶19          Accordingly, there is substantial evidence that Derrico
engaged in conduct intending to cause M.W.’s death.

                               CONCLUSION

¶20          For the foregoing reasons, we affirm Derrico’s convictions
and sentences.




                         AMY M. WOOD • Clerk of the Court
                         FILED: AA




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