Legal Question in Appeals and Writs in Arizona

I was found guilty for assault but Im not guilty for all the charges against me. Victim claims that I had given him a black eye, which I admitted to, but also chipped his tooth. I know I did not do this for a fact, there was no evidence from the police of the night in questions, they only took a picture of this eye, not tooth. During sentencing they showed a picture from the victims personal phone and are taking his word that I did this. Mind you im female 120lbs he is male around 180 lbs. The picture was on the victims cell phone so whose to say this didnt happen moths before the incident or even weeks after? I know he is putting the blame on me for the tooth so he doesn't have to pay, should I appeal this decision so I dont have to pay for his tooth?

Asked on 4/28/12, 7:26 am

1 Answer from Attorneys

Edward Hoffman Law Offices of Edward A. Hoffman
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It's not clear why you think you're not guilty if you admit you gave the victim a black eye. Whether you also chipped his tooth has nothing to do with whether you're guilty. It's only about the extent of the injuries you caused.

Did you have a jury trial? Did the jury believe the victim's testimony about his tooth? If so, there may not be much you can do about it on appeal. Jurors are there to decide questions of fact, and appellate judges -- who didn't see the witnesses testify -- will not second-guess those decisions. The same is generally true of factual findings made by the judge in cases where there is no jury.

What the appellate court will look at are claims of legal error. If the trial court admitted prosecution evidence it should have kept out, excluded defense evidence it should have let in, instructed the jury incorrectly, etc., *and* if the error seems likely to have led to a worse result for you than you otherwise would have obtained, the court might rule in your favor.

You ask who's to say when the tooth was chipped. The answer is anybody who has relevant information. That includes the victim. If he testified that the tooth was damaged when you hit him, then the jury was entitled to believe that testimony.

That you're a 120 lb woman and he's a 180 lb man does not mean you're innocent, or even that you didn't chip his tooth. Sometimes smaller women do injure larger men. Even you admit giving him a black eye, so it isn't hard to believe that you chipped his tooth as well.

The one thing that jumps out at me in your question is your statement that the evidence about the chipped tooth only came out "during sentencing". If you had a jury trial and if the jury did not see that evidence, then the judge may not have been authorized to use it as the basis for a harsher sentence -- including a higher restitution award. You should discuss this with your lawyer ASAP.

Remember that appeals are usually subject to strict deadlines. Offhand I don't know what those deadlines are in Arizona, but you should act quickly in order to preserve your rights.

Good luck.

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4/28/12, 4:38 pm

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