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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

ERIK GABRIEL BENALLY, Appellant.

No. 1 CA-CR 15-0022 

Appeal from the Superior Court in Coconino County 

No. S0300CR201400037 

The Honorable Dan R. Slayton, Judge 

AFFIRMED 

COUNSEL 

Arizona Attorney General's Office, Phoenix 

By Joseph T. Maziarz 

Counsel for Appellee 

Coconino County Public Defender's Office, Flagstaff 

By Brad Bransky 

Counsel for Appellant 

Eric Gabriel Benally, Douglas 

Appellant 
STATE v. BENALLY 

Decision of the Court 

2

MEMORANDUM DECISION 

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in 

which Judge Kent E. Cattani and Judge John C. Gemmill joined. 

J O H N S E N, Judge: 

¶1 This appeal was timely filed in accordance with Anders v. 

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

following Erik Gabriel Benally's conviction of aggravated assault, a Class 3 

felony; shoplifting, a Class 1 misdemeanor; and refusal to provide name, a 

Class 2 misdemeanor. Benally's counsel has searched the record on appeal 

and found no arguable question of law that is not frivolous. See Smith v. 

Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. 738; State v. Clark, 196 Ariz. 530 

(App. 1999). Benally has filed a supplemental brief identifying various 

issues, which we address below. After reviewing the entire record, we 

affirm Benally's convictions and sentences. 

FACTS AND PROCEDURAL HISTORY 

¶2 Benally entered a department store, selected a pair of 

sweatpants and two sweatshirts and removed their price tags.1 He 

continued to another area of the store, where he took two energy drinks and 

concealed them in the sweatshirt he had picked up. Without paying for the 

items, Benally then walked to the store exit, where he was stopped by store 

asset protection employees. The employees asked Benally if he had paid 

for the items, and Benally offered to give the items back. Benally then 

accompanied the employees to an office at the back of the store. While the 

employees were questioning Benally, he suddenly stood and rushed 

toward the door, where one of them was standing. After a brief physical 

altercation, Benally pulled out a knife, flipped it open and moved toward 

the employee standing at the door. The employee felt the tip of the knife 

against his abdomen, but was not injured. He moved aside and Benally 

exited the office and the store and ran toward a nearby hotel. 

 

1 Upon review, we view the facts in the light most favorable to 

sustaining the jury's verdicts and resolve all inferences against Benally. 

State v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998). 
STATE v. BENALLY 

Decision of the Court 

3

¶3 Two police officers who were called to the scene apprehended 

Benally, handcuffed him and placed him under arrest. One officer 

repeatedly asked Benally for his name, but Benally refused to respond. 

¶4 A jury convicted Benally of aggravated assault, shoplifting, 

and refusal to give name. The jury also found the aggravated assault to be 

a dangerous offense. After finding Benally was convicted of two prior 

felonies, the superior court sentenced him to an aggravated term of nine 

years' incarceration for aggravated assault and time served for the other 

convictions. The court granted Benally 325 days of presentence 

incarceration credit. 

¶5 Benally timely appealed. We have jurisdiction pursuant to 

Article 6, Section 9, of the Arizona Constitution, and Arizona Revised 

Statutes sections 12-120.21(A)(1) (2015), 13-4031 (2015) and -4033(A)(1) 

(2015).2

DISCUSSION 

A. Issues Raised in Supplemental Brief. 

¶6 Benally challenges the sufficiency of the evidence, arguing the 

State failed to prove each element of the offenses beyond a reasonable 

doubt. The record contains sufficient evidence, recounted above, to 

support Benally's convictions. The State presented the testimony of both 

asset protection employees who observed Benally remove the merchandise 

and proceed to the exit without paying for them. The employees also 

testified that Benally pulled out a knife and thrust it at one of them. The 

jury also saw video evidence of the altercation, which largely corroborated 

the employees' testimony. The jury also heard evidence he refused the 

police officer's request to give his name. 

¶7 Benally further argues the prosecutor improperly vouched for 

a law enforcement witness when a detective sitting at the prosecution's 

counsel table shook the witness's hand in the presence of the jury. Although 

the prosecution may not impermissibly vouch for its witnesses, the conduct 

at issue here did not constitute error, let alone fundamental error. See 

United States v. Rude, 88 F.3d 1538, 1549 (9th Cir. 1996) (prosecutor's shaking 

of witness's hand in front of the jury did not constitute impermissible 

vouching or reversible error). 

 

2 Absent material revision after the date of an alleged offense, we cite 

a statute's current version. 
STATE v. BENALLY 

Decision of the Court 

4

B. Due Process Review.

¶8 The record reflects Benally received a fair trial. He was 

represented by counsel at all stages of the proceedings against him and was 

present at all critical stages. The court held appropriate pretrial hearings. 

It did not conduct a voluntariness hearing; however, the record did not 

suggest a question about the voluntariness of Benally's statements to police. 

See State v. Smith, 114 Ariz. 415, 419 (1977); State v. Finn, 111 Ariz. 271, 275 

(1974). 

¶9 The State presented both direct and circumstantial evidence 

sufficient to allow the jury to convict. The jury was properly comprised of 

eight members with one alternate. The court properly instructed the jury 

on the elements of the charges, the State's burden of proof and the necessity 

of a unanimous verdict. The jury returned a unanimous verdict, although 

neither side requested the jury to be polled. The court received and 

considered a presentence report, addressed its contents during the 

sentencing hearing and imposed legal sentences for the crimes of which 

Benally was convicted. 

CONCLUSION 

¶10 We have reviewed the entire record for reversible error and 

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

Leon, 104 Ariz. at 300. 

¶11 After the filing of this decision, defense counsel's obligations 

pertaining to this appeal have ended. Defense counsel need do no more 

than inform Benally of the outcome of this appeal and his future options, 

unless, upon review, counsel finds "an issue appropriate for submission" to
STATE v. BENALLY 

Decision of the Court 

5

the Arizona Supreme Court by petition for review. See State v. Shattuck, 140

Ariz. 582, 584-85 (1984). On the court's own motion, Benally has 30 days 

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

for reconsideration. Benally has 30 days from the date of this decision to 

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