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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

RICHARD B. TIMLICK, Appellant. 

No. 1 CA-CR 18-0762 

Appeal from the Superior Court in Maricopa County

No. CR2016-002499-001 

The Honorable Jacki Ireland, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz 

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Thomas Baird

Counsel for Appellant 

Richard B. Timlick, Buckeye

Appellant 

FILED 8-27-2019
STATE v. TIMLICK 

Decision of the Court

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MEMORANDUM DECISION

Judge Jennifer M. Perkins delivered the decision of the Court, in which 

Presiding Judge Randall M. Howe and Judge David D. Weinzweig joined.

P E R K I N S, Judge:

¶1 Richard B. Timlick timely filed this appeal in accordance with 

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

following his convictions for aggravated assault, a class 2 felony, driving 

under the influence of alcohol while impaired to the slightest degree, a class 

1 misdemeanor, driving under the influence of alcohol with a blood alcohol 

concentration (“BAC”) of 0.08 or greater, a class 1 misdemeanor, and 

unlawful flight from law enforcement in a vehicle, a class 5 felony. Timlick’s 

counsel has searched the record on appeal and found no arguable question 

of law that is not frivolous. See Anders, 386 U.S. at 744; State v. Clark, 196 

Ariz. 530, 537, ¶ 30 (App. 1999). Timlick filed a supplemental brief arguing 

the prosecutor misstated evidence and improperly commented on 

Timlick’s silence during closing arguments. Timlick also argues that the 

court erred in failing to give a lesser-included offense instruction and by 

considering non-historical prior felonies at sentencing. Finally, Timlick 

argues the verdict forms and jury instructions created confusion for the jury 

as to the classification of the aggravated assault charge. Counsel now asks 

this court to search the record for fundamental error. After reviewing the 

entire record, we affirm Timlick’s convictions and resulting sentences. 

FACTUAL AND PROCEDURAL BACKGROUND

¶2 On March 14, 2016, around 5:00 pm Officer Dufresne 

responded to a 9-1-1 call made by Timlick. Dufresne pulled up next to 

Timlick’s car in his marked police vehicle and spoke with Timlick for a 

moment. As a second officer arrived, Timlick pulled away and Dufresne 

activated his emergency lights and siren and gave chase. A short time into 

the chase, Timlick did a U-turn and drove back toward Dufresne and the 

other pursuing officer. Timlick then crossed the center line into Dufresne’s 

lane and approached him head-on. Dufresne switched lanes to avoid 

Timlick’s car at which point Timlick adjusted to again approach Dufresne 

head-on. Dufresne took additional evasive action and subsequently 

testified that Timlick passed “very close” to him and that “it appeared that 

[Timlick] was trying to actually purposely ram” him. Dufresne testified that 

he was in fear for his life because of Timlick’s actions. 
STATE v. TIMLICK 

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¶3 After Timlick passed Dufresne, the chase continued to a 

commercial parking lot. Both officers pursued Timlick through the parking 

lot and back onto the street until eventually terminating the pursuit out of 

concern for public safety. A police sergeant in an unmarked vehicle located 

Timlick shortly after the initial pursuit ended. The sergeant followed 

Timlick until Timlick parked and left his car. The sergeant identified 

himself and told Timlick to “get on the ground” multiple times until 

Timlick started running toward a nearby mall. The sergeant then used a 

TASER on Timlick and another officer arrested Timlick. The arresting 

officer and a detective who interrogated Timlick that evening later testified 

that they noticed signs Timlick had been drinking. The arresting officer 

asked Timlick to submit to a blood draw and, when he refused, obtained a 

warrant and took a sample of Timlick’s blood for later testing. 

¶4 The State charged Timlick with aggravated assault, two 

counts of driving under the influence of alcohol, and unlawful flight from 

law enforcement. At trial, multiple officers testified and the forensic 

scientist who tested Timlick’s blood testified about the results of those tests

and her analysis. The forensic scientist testified that Timlick had a BAC of 

0.150, more than two hours after his initial contact with Dufresne and, using 

retrograde analysis, that Timlick had a BAC between 0.156 and 0.169 within 

two hours of driving. The jury found Timlick guilty on all counts and 

subsequently found Timlick’s aggravated assault charge to be a dangerous 

offense. 

DISCUSSION

¶5 The record reveals sufficient evidence from which the jury 

could determine, beyond a reasonable doubt, that Timlick is guilty of the 

charged offenses. The record further reflects that all proceedings were 

conducted in compliance with the Arizona Rules of Criminal Procedure, 

and that Timlick was represented by counsel at all stages of the proceedings 

and was present at sentencing. See State v. Conner, 163 Ariz. 97, 104 (1990)

(right to counsel); State v. Bohn, 116 Ariz. 500, 503 (1977) (right to be present 

at critical stages). Timlick was not present for the trial or the 

pronouncement of the jury’s verdict because he voluntarily absented 

himself from trial. See Bohn, 116 Ariz. at 503 (waiver of right to be present 

at critical stages). At sentencing, Timlick had the opportunity to speak on 

his behalf and the court stated on the record the factors it considered in 

imposing the sentence. See Ariz. R. Crim. P. 26.9, 26.10. The sentence 

imposed was within the statutory limits. See A.R.S. §§ 13-701 to -709. 

¶6 The arguments raised by Timlick in his supplemental brief do 

not change our analysis as they are without merit. First, though Timlick
STATE v. TIMLICK 

Decision of the Court

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alleges the State improperly characterized evidence in closing arguments, 

the record belies this allegation. A detective that interviewed Timlick after 

his arrest testified that Timlick admitted he drove at the pursuing police 

officers but claimed he did not intend to ram them. In closing, the 

prosecutor characterized Timlick’s statement to the detective as an 

“admission” that Timlick “intentionally drove at the officers.” Based on the 

detective’s testimony, Timlick admitted to driving at the officers and only 

suggested that he did not intend to ultimately ram them. He did not claim 

he unintentionally drove at the officers. 

¶7 Second, Timlick argues the State improperly commented on 

his silence during closing arguments. During closing, the prosecutor 

explained that to prove the driving under the influence charges, the State 

had to prove Timlick was driving and said “[w]e’ve heard no evidence 

otherwise.” Though under different circumstances such statements could 

amount to commenting on a defendant’s silence, this single statement 

regarding evidence that could have been challenged in numerous ways 

does not rise to the level of a comment “calculated to direct the jurors’ 

attention to the defendant’s exercise of his Fifth Amendment privilege.” 

State v. Hughes, 193 Ariz. 72, 87, ¶ 64 (1998) (quoting State v. McCutcheon, 

159 Ariz. 44, 45 (1988)). Thus, the passing reference was not a comment, 

directly or indirectly, on Timlick’s decision not to testify. 

¶8 Third, Timlick argues the trial court erred in refusing to give 

a lesser-included offense instruction on the aggravated assault charge. A 

defendant is entitled to an appropriate lesser-included offense instruction 

on request and if supported by the evidence. Ariz. R. Crim. P. 21.4(a). 

Timlick did not request any such instruction and the court did not err in 

declining to sua sponte instruct the jury on a lesser-included offense. Id.; see 

also State v. Gipson, 229 Ariz. 484, 487, ¶ 15 (2012) (trial court should

generally withhold lesser-included offense instruction unless requested by 

one of the parties). Timlick suggests on appeal that the court should have 

given instructions on threatening under A.R.S. § 13-1202(A)(1) or disorderly 

conduct under A.R.S. § 13-2904. Neither of these crimes requires the victim 

to be in actual fear of injury or to be a police officer and thus these 

instructions were not supported by the evidence. See State v. Lara, 183 Ariz. 

233, 235 (1995) (disorderly conduct not implicated when there is no 

question as to a distinguishing element of aggravated assault). 

¶9 Fourth, Timlick argues the court erred in using non-historical 

prior felonies to charge him as a category three offender. A category three 

offender is an adult standing trial for a felony with two or more historical 

prior felony convictions. A.R.S. § 13-703(C). “Historical prior felonies” 

include “[a]ny felony conviction that is a third or more prior felony 
STATE v. TIMLICK 

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conviction.” A.R.S. § 13-105(22)(d). At sentencing, the court found Timlick 

had four prior felonies, the third and fourth of which were historical prior 

felonies. Thus, the court did not improperly include non-historical prior 

felonies.

¶10 Finally, Timlick repeats his argument that he should have 

been charged with reckless display of a dangerous instrument rather than 

aggravated assault, this time characterizing the error as confusing the jury.

The State, not the court or defendant, makes charging decisions. See State v. 

Mieg, 225 Ariz. 445, 447, ¶ 10 (App. 2010) (prosecutor generally has broad 

discretion over charging decisions). Thus, it is not error to charge a 

defendant with crimes supported by the evidence or to forego other charges 

in the prosecutor’s discretion. As previously stated, the evidence supports 

Timlick’s convictions. Accordingly, there was no error in the jury 

instructions or verdict form as to the aggravated assault charge.

¶11 To the extent Timlick received extra pre-sentence 

incarceration credit, the State did not cross-appeal the overage and we 

therefore lack jurisdiction to modify Timlick’s pre-sentence incarceration 

credit. See State v. Dawson, 164 Ariz. 278, 286 (1990). 

CONCLUSION

¶12 We have reviewed the entire record for arguable issues of law

and find none, and therefore affirm the convictions and resulting sentences. 

See Leon, 104 Ariz. at 300–1. 

¶13 Defense counsel’s obligations pertaining to Timlick’s 

representation in this appeal have ended. Counsel need do no more than 

inform Timlick of the outcome of this appeal and his future options, 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). On the court’s own motion, Timlick has 30 days 

from the date of this decision to proceed, if he wishes, with a pro per motion 

for reconsideration. Additionally, Timlick has 30 days from the date of this 

decision to proceed, if he wishes, with a pro per petition for review.