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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 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

CHARLES THOMAS LOWE, Appellant.

No. 1 CA-CR 15-0152 

Appeal from the Superior Court in Maricopa County 

No. CR2014-103670-001 

The Honorable Daniel J. Kiley, Judge 

AFFIRMED 

COUNSEL 

Arizona Attorney General’s Office, Phoenix 

By Joseph T. Maziarz 

Counsel for Appellee 

Maricopa County Public Defender’s Office, Phoenix 

By Carlos Daniel Carrion 

Counsel for Appellant
STATE v. LOWE 

Decision of the Court 

2

MEMORANDUM DECISION 

Judge John C. Gemmill delivered the decision of the Court, in which 

Presiding Judge Andrew W. Gould and Judge Margaret H. Downie joined. 

G E M M I L L, Judge: 

¶1 Charles Lowe appeals from his conviction and sentence for 

one count of aggravated assault, a class 3 dangerous felony. Lowe contends 

the trial court erred in failing to hold an aggravation hearing to allow the 

jury to determine the dangerousness allegation. Although the court erred, 

no timely objection was made, and therefore this court reviews only for 

fundamental, prejudicial error. We conclude Lowe cannot demonstrate the 

prejudice required for a reversal, and we thus affirm. 

BACKGROUND 

¶2 In January 2014, J.A. travelled from New Jersey to Phoenix to 

see S.P., his longtime girlfriend. The following night, J.A. and S.P. were 

awakened by Lowe knocking on the door of the apartment. Lowe was an 

acquaintance of S.P.’s who paid her rent and had given her money for 

expenses on several occasions. S.P. told J.A. to stay behind in the bedroom 

and opened the front door to speak with Lowe. J.A. left the bedroom to 

confront Lowe in the living room, and Lowe struck J.A. in the face with a 

large metal flashlight, rupturing his eye. Ultimately, J.A. lost his right eye. 

¶3 Several days later, S.P. saw Lowe driving on her street and 

called 911. She followed Lowe, giving officers his location until they found 

and arrested him. The State filed a direct complaint against Lowe alleging 

two counts of aggravated assault, a class 3 dangerous felony. Count 1 

alleged assault causing serious physical injury and Count 2 alleged assault 

with a deadly weapon or dangerous instrument. Both counts included 

allegations of dangerousness. 

¶4 At trial, the parties discussed preliminary jury instructions on 

dangerousness. The parties agreed dangerousness was inherent in the 

elements of the crime, and Lowe did not object to adding dangerous offense 

language to the instructions. After the jury retired to deliberate, the trial 

court asked the State whether it intended to request an aggravators hearing. 

The State responded that it did not, on the assumption that dangerousness 
STATE v. LOWE 

Decision of the Court 

3

was inherent in the offense. Lowe did not object during the discussion and 

did not request an aggravation hearing. 

¶5 The jury found Lowe guilty on Count 1 and not guilty on 

Count 2. The trial court sentenced Lowe under Arizona Revised Statutes 

(“A.R.S.”) section 13-704 as a dangerous non-repetitive offender to a 

mitigated term of 5 years with credit for 71 days of pre-sentence 

incarceration. Lowe appeals, and we have jurisdiction under Article 6, 

Section 9, of the Arizona Constitution and A.R.S. §§ 12–120.21(A)(1), 13-

4031 and 13-4033. 

ANALYSIS

¶6 Lowe contends the trial court erred by failing to hold an 

aggravation hearing to allow the jury to determine the dangerousness 

allegation. Because Lowe did not object to the jury instructions at trial or 

to the absence of a separate jury determination of dangerousness, we 

review only for fundamental error. State v. Felix, 237 Ariz. 280, 284, ¶ 13 

(App. 2015). Lowe must therefore show both that fundamental error exists 

and that he was prejudiced by the error. State v. Henderson, 210 Ariz. 561, 

567, ¶ 20 (2005).

¶7 Lowe contends the trial court’s determination that 

dangerousness was inherent in the aggravated assault offense lessened the 

State’s burden of proof. He compares the mental state required for 

aggravated assault under A.R.S. §§ 13-1203(A)(1) and 13-1204(A)(1) with 

the mental state required for dangerousness under A.R.S. § 13-105(13). 

Under § 13-1203(A)(1), a person commits assault by “[i]ntentionally, 

knowingly or recklessly causing any physical injury to another person.” 

(Emphasis added). A dangerous offense under § 13-105(13) is “an offense 

involving the discharge, use or threatening exhibition of a deadly weapon 

or dangerous instrument or the intentional or knowing infliction of serious 

physical injury on another person.” (Emphasis added).

¶8 Lowe argues the jury could have found that his actions were 

reckless but not intentional or knowing; in essence, guilty of aggravated 

assault but with no dangerousness finding. See State v. Bowling, 151 Ariz. 

230, 233 (App. 1986). He contends dangerousness is therefore not inherent 

in aggravated assault (serious physical injury), and the State has the burden 

to prove beyond a reasonable doubt the dangerousness allegation under the 

intentional or knowing standard. Finally, Lowe asserts that under State v. 

Hunter, 142 Ariz. 88 (1984), an instruction that does not correctly instruct 

the jury as to the State’s burden of proof is fundamental error. 
STATE v. LOWE 

Decision of the Court 

4

¶9 We agree with Lowe, as does the State, that the trial court 

erred in not allowing the jury to decide the dangerousness allegation. We 

need not determine if the error was fundamental, however, because Lowe 

cannot establish the required prejudice to warrant reversal. See State v. 

Valverde, 220 Ariz. 582, 586, ¶¶ 14–17 (2009) (defendant could not show 

prejudice so the court “need not address here” whether the trial court’s 

omission of an instruction was fundamental error). His argument is that 

there was a likelihood the jury may have found he committed the offense 

recklessly. We disagree, however, because no reasonable jury could have 

found that Lowe’s actions were anything other than intentional or knowing.

See State v. Munninger, 213 Ariz. 393, 395, ¶ 4 (App. 2006) (explaining the 

defendant’s burden to show prejudicial error in a fundamental error 

review). 

¶10 The State’s theory was that Lowe attacked J.A. In contrast, 

Lowe testified that J.A. was the initial aggressor and he struck J.A. in selfdefense. Under either theory, his mental state could not have been merely 

reckless when he struck J.A. causing serious physical injury. See State v. 

Ruelas, 165 Ariz. 326, 328–29 (App. 1990) (citing State v. Prewitt, 104 Ariz. 

326, 332 (1969)) (concluding use of force in self-defense is an intentional act). 

Because no reasonable jury could find that Lowe was merely reckless when 

he injured J.A., he cannot establish prejudice from the trial court’s decision 

not to have the jury specifically determine the dangerousness allegation. 

CONCLUSION 

¶11 For the foregoing reasons, we affirm the conviction and 

sentence.