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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

ROGER NELSON, Appellant.

No. 1 CA-CR 14-0260 

Appeal from the Superior Court in Maricopa County 

No. CR2011-145186-001 

The Honorable John R. Ditsworth, Judge 

AFFIRMED 

COUNSEL 

Arizona Attorney General’s Office, Phoenix 

By Joseph T. Maziarz 

Counsel for Appellee 

Maricopa County Public Defender’s Office, Phoenix 

By Terry Reid 

Counsel for Appellant
STATE v. NELSON 

Decision of the Court 

2

MEMORANDUM DECISION 

Judge Donn Kessler delivered the decision of the Court, in which Presiding 

Judge Lawrence F. Winthrop and Judge Samuel A. Thumma joined. 

K E S S L E R, Judge: 

¶1 Roger Nelson filed this appeal in accordance with Anders v. 

California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), 

following his conviction of one count of leaving the scene of a damage 

accident, one count of disorderly conduct, one count of armed robbery, 

three counts of aggravated assault, and one count of attempted second 

degree murder. Finding no arguable issues to raise, Nelson’s counsel 

requested that this Court search the record for fundamental error. Nelson 

was given the opportunity to, but did not submit a pro per supplemental 

brief. For the reasons that follow, we affirm Nelson’s convictions and 

sentences. 

FACTUAL AND PROCEDURAL HISTORY 

¶2 ND and his wife, CD, were leaving Arizona Mills Mall when 

they saw another car speeding toward them, driving the wrong way on a 

one-way street. The car hit a curb and crashed into a tree. A man, identified 

as Nelson, exited the car and began walking quickly toward them. At 

approximately ten feet from ND and his wife, Nelson pointed a small silver 

handgun at their windshield. Nelson pointed the gun at them for fifteen to 

thirty seconds before heading toward the mall. ND and CD called 911 to 

report the incident to the police. 

¶3 Officers arrived at the mall, aware that Nelson had left the 

accident scene and was armed. Officer B. was walking through the parking 

lot in the direction Nelson was described as heading, when a man abruptly 

stopped his vehicle to tell him that Nelson had pointed a gun at him, and 

then entered the mall. Officer B., with the help of additional officers, began 

searching the mall for suspects. 

¶4 Nelson had proceeded to Famous Footwear, where he 

grabbed two boxes of shoes and walked over to the cash register. AM, a 

Famous Footwear employee, testified that Nelson became visibly upset 

when she asked him for his driver’s license or name in order to register him 
STATE v. NELSON 

Decision of the Court 

3

for rewards, and he pulled a small silver gun out from his shorts and 

pointed it at her stomach. Nelson instructed AM to put the shoes in a bag, 

and she complied. Nelson then took the bag of shoes and walked calmly 

out of the store. The incident was recorded by a security camera, and AM 

later identified Nelson once he was in custody. 

¶5 Officer K. arrived on the scene and helped in conducting a 

perimeter to keep the suspect detained in the area. He soon saw Nelson, 

who fit the description of the suspect, and decided to stop and identify him. 

Officer K. told Nelson he needed to talk to him, and stated he needed to pat 

him down first to make sure he was not carrying any weapons. Officer K. 

testified that Nelson became irritated, began to back away, and said “whoa, 

whoa, I’m a citizen.” When Officer K. advanced, Nelson pointed the silver 

handgun at the officer’s chest, and Officer K. reacted by grabbing the gun 

and pushing it away. Nelson tried to swing the gun back toward Officer 

K., repeatedly stating “I’m going to kill you.” The two struggled over the 

gun. When the gun failed to fire, Officer K. wrestled with Nelson, gaining 

possession of the weapon, which he tossed behind himself. Officer K. then 

took a few steps back before subduing Nelson with a Taser. Nelson was 

arrested and taken into custody. 

¶6 Officer A. Mirandized1 and interviewed Nelson at the scene. 

Nelson admitted to crashing his car into a tree, possessing a loaded gun, 

and pointing the gun at both AM and Officer K. 

¶7 Detective O. Mirandized and interviewed Nelson at three in 

the morning the following day. During the interview, Nelson admitted that 

he wrecked his grandfather’s car and was in possession of a loaded weapon. 

He stated that after the accident he tried to stop a couple by pointing his 

gun at them, and then ran into the mall to hide. Once inside the mall, 

Nelson admitted to robbing Famous Footwear, but minimized the 

encounter claiming he only showed AM the gun and tapped it on the 

counter so she would know it was real. Nelson further admitted to waving 

the gun around in the mall and trying to carjack a man in the parking lot by 

trying to shoot out the vehicle’s window. When the gun did not fire, Nelson 

took the magazine and chambered bullet out of the gun, cleaned it, 

reinserted the magazine into the gun, and walked away. Finally, Nelson 

admitted that he knew Officer K. was a uniformed police officer, that he 

told Officer K. to back off or he would shoot him, and that he pointed the 

gun at the officer’s chest. 

 

1 Miranda v. Arizona, 384 U.S. 436 (1966). 
STATE v. NELSON 

Decision of the Court 

4

¶8 A criminalist with the Arizona Department of Public Safety 

testified that the gun worked, but not well. He concluded the bullet failed 

to fire during the struggle with Officer K. because the firing pin struck the 

periphery, rather than the center of the primer. 

¶9 Nelson was convicted of Count 1: Leaving the Scene of a 

Damage Accident; Count 2: Disorderly Conduct; Count 3: Armed Robbery; 

Count 4: Aggravated Assault; Count 5 Amended: Attempted Second 

Degree Murder; Count 6: Aggravated Assault; and Count 7: Aggravated 

Assault. Nelson was sentenced to a twenty-six year term of imprisonment2

and awarded 948 days of presentence incarceration credit. 

¶10 Nelson timely appealed. We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, as well as Arizona Revised 

Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and -

4033(A)(1) (2010). 

STANDARD OF REVIEW 

¶11 In an Anders appeal, this Court must review the entire record 

for fundamental error. See State v. Banicki, 188 Ariz. 114, 117 (App. 1997). 

Fundamental error is “error going to the foundation of the case, error that 

takes from the defendant a right essential to his defense, and error of such 

magnitude that the defendant could not possibly have received a fair trial.” 

State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005) (quoting State v. Hunter, 

142 Ariz. 88, 90 (1984)). To obtain a reversal, the defendant must also 

demonstrate that the error caused prejudice. Id. at ¶ 20. 

DISCUSSION 

¶12 After careful review of the record, we find no grounds for 

reversal of Nelson’s convictions or sentences. The record reflects Nelson 

had a fair trial and all proceedings were conducted in accordance with the 

Arizona Rules of Criminal Procedure. Nelson was present and represented 

by counsel at all critical stages of trial, had the opportunity to speak at 

sentencing, and the sentences imposed were within the range for Nelson’s 

offenses. 

 

2 Nelson was sentenced to one day for Count 1, three years for Count 2, 

twenty-one years for Counts 3-5, and five years for Counts 6-7. Counts 1-5 

were ordered to be served concurrently, with Counts 6-7 to be served upon 

release from Counts 1-5. 
STATE v. NELSON 

Decision of the Court 

5

¶13 In reviewing the sufficiency of evidence at trial, “[w]e 

construe the evidence in the light most favorable to sustaining the verdict, 

and resolve all reasonable inferences against the defendant.” State v. Greene, 

192 Ariz. 431, 436, ¶ 12 (1998). “Reversible error based on insufficiency of 

the evidence occurs only where there is a complete absence of probative 

facts to support the conviction.” State v. Soto-Fong, 187 Ariz. 186, 200 (1996) 

(quoting State v. Scott, 113 Ariz. 423, 424-25 (1976)).

¶14 First, there is evidence in the record to support the jury’s 

conviction of Nelson for the crime of leaving the scene of a damage 

accident. Pursuant to A.R.S. § 28-662 (Supp. 2015), if after a vehicular 

accident there is damage to a vehicle, the driver is required to stop or 

immediately return to the scene of the accident, remain at the scene until all 

legal requirements are fulfilled, and make the stop without obstructing 

traffic. As explained above, two witnesses saw Nelson crash his car and 

leave the scene, and Nelson admitted doing so during his interrogation. See 

supra ¶¶ 2, 7. Based on the record, there is sufficient evidence to support 

Nelson’s conviction of leaving the scene of a damage accident. 

¶15 There is also sufficient evidence in the record to support the 

jury’s conviction of Nelson for the crime of disorderly conduct. “A person 

commits disorderly conduct if, with intent to disturb the peace or quiet of a 

neighborhood, family or person, or with knowledge of doing so, such 

person . . . [r]ecklessly handles, displays or discharges a deadly weapon or 

dangerous instrument.” A.R.S. § 13-2904(A)(6) (2010). During his 

interview with detectives, Nelson admitted to possessing a loaded gun, to 

“waving it around like an idiot,” and that guns can be used as a tool to 

terrify people with. 

¶16 There is sufficient evidence in the record to support the jury’s 

conviction of Nelson for the count of armed robbery. “A person commits 

robbery if in the course of taking any property of another from his person 

or immediate presence and against his will, such person threatens or uses 

force against any person with intent either to coerce surrender of property 

or to prevent resistance to such person taking or retaining property.” A.R.S. 

§ 13-1902(A) (2010). A person commits armed robbery if, during the 

commission of robbery, the person “[i]s armed with a deadly weapon or a 

simulated deadly weapon . . . .” A.R.S. § 13-1904(A)(1) (2010). As discussed 

above, the evidence of Nelson’s use of his handgun to steal two pairs of 

shoes from Famous Footwear is sufficient to prove armed robbery. See 

supra ¶ 4, 7. 
STATE v. NELSON 

Decision of the Court 

6

¶17 There is sufficient evidence in the record to support the jury’s 

conviction of Nelson for the count of aggravated assault as to Officer K. “A 

person commits assault by . . . [i]ntentionally placing another person in 

reasonable apprehension of imminent physical injury.” A.R.S. § 13-

1203(A)(3) (2010). “A person commits aggravated assault . . . [i]f the person 

uses a deadly weapon or dangerous instrument,” A.R.S. § 13-1204(A)(2) 

(Supp. 2015), or “commits the assault knowing or having reason to know 

that the victim is . . . [a] peace officer, or a person summoned and directed 

by the officer while engaged in the execution of any official duties or if the 

assault results from the execution of the peace officer’s official duties,” 

A.R.S. § 13-1204(A)(8)(a). There was testimony that Nelson possessed a 

loaded weapon, that he knew Officer K. was a police officer, that he told 

Officer K. to back off or he would shoot him, and that he pointed the gun at 

Officer K.’s chest. Officer K. further testified that while Nelson was pointing 

the gun at him, he thought he was going to die. 

¶18 There is sufficient evidence in the record to support the jury’s 

conviction of Nelson for attempted second degree murder. A person 

commits attempted second degree murder if he intentionally does 

anything, which under the circumstances as the person believes them to be, 

is a step in a course of conduct planned to culminate in the intentional death 

of another person. A.R.S. §§ 13-1001 (2010) (attempt), 13-1104 (2010) 

(second degree murder). The evidence of aggravated assault as to Officer 

K. is also sufficient to prove all the elements of attempted second degree 

murder. There was further testimony that there were two indentations on 

the primer of the gun’s bullet indicating that the trigger had been pulled 

twice, and the bullet failed to fire because the firing pin struck the periphery 

rather than the center of the primer. Because Nelson admitted to trying to 

carjack a man in the parking lot by trying to shoot out the vehicle’s window, 

the jury could infer that the second indentation on the bullet occurred when 

Nelson and Officer K. were struggling for control over the weapon. 

¶19 Finally, there is sufficient evidence in the record to support 

the jury’s conviction of Nelson for two counts of aggravated assault as to 

ND and CD. “A person commits assault by . . . [i]ntentionally placing 

another person in reasonable apprehension of imminent physical injury,” 

A.R.S. § 13-1203, and “[a] person commits aggravated assault . . . [i]f the 

person uses a deadly weapon or dangerous instrument,” A.R.S. § 13-

1204(A)(2). Here, ND and CD both testified that Nelson pointed a gun at 

them and they feared for their lives. See supra ¶ 2. In addition, during the 

interrogation, Nelson admitted that after the accident he tried to stop a 

couple by pointing his gun at them before running into the mall to hide. 
STATE v. NELSON 

Decision of the Court 

7

¶20 In comparing the evidence in the record to the elements listed 

in the statutes, we find there was sufficient evidence to support the jury’s 

conviction of Nelson for leaving the scene of a damage accident, disorderly 

conduct, armed robbery, three counts of aggravated assault, and attempted 

second degree murder. 

CONCLUSION 

¶21 For the foregoing reasons, we affirm Nelson’s convictions and 

sentences. Upon the filing of this decision, defense counsel shall inform 

Nelson of the status of his appeal and his future appellate options. Defense 

counsel has no further obligations, unless, upon review, counsel finds an 

issue appropriate for submission to the Arizona Supreme Court by petition 

for review. See State v. Shattuck, 140 Ariz. 582, 584-85 (1984). Upon the 

Court’s own motion, Nelson shall have thirty days from the date of this 

decision to proceed, if he so desires, with a pro per motion for 

reconsideration or petition for review.