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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BRUCE DALE MOORE,

Appellant.

No. 1 CA-CR 21-0250 

Appeal from the Superior Court in Yavapai County

No. P1300CR202000540

The Honorable John David Napper, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Eliza C. Ybarra

Counsel for Appellee

Nicole Countryman, Phoenix

Counsel for Appellant

FILED 3-24-2022
STATE v. MOORE

Decision of the Court

2

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which 

Presiding Judge Maria Elena Cruz and Judge Michael J. Brown joined.

T H U M M A, Judge:

¶1 Bruce Dale Moore, Jr. appeals his conviction and sentences, 

asserting the superior court erred by (1) granting a partial acquittal on his 

felony criminal damage count but finding him guilty of misdemeanor

criminal damage; and (2) failing to give him an opportunity to address the 

court before imposing sentence on his various convictions. Because Moore 

has shown no reversible error, his conviction and sentences are affirmed.

FACTS1 AND PROCEDURAL HISTORY

¶2 In March 2021, Moore and his co-defendant were tried on 

eight felony counts alleged to have been committed in May 2020 in Yavapai 

County: attempt to commit first degree murder, three counts of aggravated 

assault, two counts of disorderly conduct, discharge of a firearm at a 

structure and criminal damage (alleging damage of $1,000 or more but less 

than $2,000).

¶3 After the State rested in its case in chief, Moore moved for a 

judgment of acquittal on all counts. See Ariz. R. Crim. P. 20 (2022).2 The 

court entered a judgment of acquittal on the discharge of a firearm at a 

structure count. The court then found the evidence on the criminal damage 

count was insufficient for a felony (which requires at least $1,000 in 

damage), but sufficient for a misdemeanor. See Ariz. Rev. Stat. (A.R.S.) § 13-

1602(B)(5)-(6).

1 On appeal, this court views the evidence in the light most favorable to 

sustaining the conviction and resolves all reasonable inferences against the 

defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008). Moore also was 

charged with misconduct involving weapons, but that count was severed 

before trial and is not at issue here. 

2 Absent material revisions after the relevant dates, statutes and rules cited 

refer to the current version unless otherwise indicated.
STATE v. MOORE

Decision of the Court

3

¶4 When the State noted that testimony was presented that the 

damage was more than $1,000, the court stated it was “uncomfortable with 

that. There was no objection to the hearsay, but we don’t have the name of 

the person who gave him the value, we don’t know how that person even 

was able to figure out what the value was. I’m just not sure there’s 

substantial evidence as to” the criminal damage count charged.

Accordingly, the court granted the motion for acquittal for criminal damage

“as to it being a class 6 felony. It can go forward as a Misdemeanor, and if 

you want, I can decide that.” The jury later found Moore guilty of the 

remaining charges, with the court finding him guilty of misdemeanor 

criminal damage.

¶5 At sentencing, the court noted, and counsel agreed, that the

criminal damage conviction was a class 1 misdemeanor. After hearing 

arguments from counsel, the court sentenced Moore on the various 

convictions. The court did so, however, without affording Moore the right 

to address the court. Just after announcing the sentences, the court realized 

the oversight and asked Moore if he wanted to address the court, stating, “I 

didn’t give the defendants a chance to address the court. Do they have 

anything they want to say?” Moore then briefly addressed the court.

¶6 Given his prior criminal history, Moore was sentenced to a 

variety of concurrent and consecutive prison terms on the felony 

convictions, the longest of which was for 20 years, with appropriate 

presentence incarceration credit. For the criminal damage misdemeanor, he 

was sentenced to 180 days in jail, with 180 days credit for time served. 

¶7 This court has jurisdiction over Moore’s timely appeal 

pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. 

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

DISCUSSION

I. Moore Has Not Shown the Superior Court Erred in Finding Him 

Guilty of a Class 1 Misdemeanor.

¶8 Moore first argues that the court lacked the authority to 

designate the criminal damage charge and conviction a class 1

misdemeanor. Moore argues that, instead, the court should have dismissed 

the charge with prejudice after finding there was insufficient evidence for 

it to proceed as a class 6 felony. Moore cites State v. Frey, 141 Ariz. 321 (1984) 

and A.R.S. § 13-604, contending that the court may only designate the 

offense as a misdemeanor after there has been an adjudication for an 

undesignated class 6 felony.
STATE v. MOORE

Decision of the Court

4

¶9 Moore is correct that he was not convicted of an undesignated 

class 6 felony offense, meaning A.R.S. § 13-604 does not apply. For that same 

reason, however, this case is also distinguishable from Frey. That case 

addressed “whether a trial judge can deny a defendant a jury trial, when 

the defendant has been charged with a class 6 felony, by stating an 

intention, before trial, to designate the offense a misdemeanor if the 

defendant is convicted at trial.” 141 Ariz. at 322. Here, the court found, after 

the close of the State’s case, that the evidence was insufficient to support a 

felony criminal damage claim (concluding the State had not proven the 

required amount of damage by substantial evidence), but that the evidence 

was sufficient to support a misdemeanor criminal damage claim (given that 

a lesser amount of damage had been proven). Thus, the predicate in Frey –

a conviction of a class 6 felony criminal damage charge – is not present here. 

¶10 Moore does not argue that he had a right to a jury trial for the 

misdemeanor criminal damage charge. See Derendal v. Griffith, 209 Ariz. 416, 

422 ¶ 21 (2005). Nor has Moore shown that the evidence was inadequate to 

support the court’s finding that he was guilty of class 1 misdemeanor 

criminal damage. A.R.S. § 13-1602(B)(5) (“Criminal damage is a class 1 

misdemeanor if the person recklessly damages property of another in an 

amount of more than two hundred fifty dollars but less than one thousand 

dollars.”). For these reasons, Moore’s conviction of class 1 misdemeanor 

criminal damage is affirmed. 

II. The Oversight in Not Allowing Moore to Address the Court Before 

Sentencing Does Not Require Resentencing.

¶11 Moore argues he was denied his right to address the court 

before his sentences were imposed. Moore is correct in noting the court 

failed to allow him to address the court before announcing his sentences. 

The court, however, recognized the oversight and then immediately 

allowed Moore to address the court before the hearing ended. Because 

Moore did not object, this court reviews for fundamental error. 

¶12 Moore does not argue, let alone show, that the oversight was 

fundamental error resulting in prejudice. State v. Escalante, 245 Ariz. 135, 

140 (2018). “When the court pronounces a sentence, it must give the 

defendant an opportunity to address the court.” Ariz. R. Crim. P. 

26.10(b)(1). A court’s failure to allow a defendant to address the court before 

pronouncing the sentence does not require resentencing “unless the 

defendant can show that he would have added something to the mitigating 

evidence already presented.” State v. Hinchey, 181 Ariz. 307, 313 (1995). In 

Hinchey, the defendant “failed to remind the judge . . . He did not ask to 
STATE v. MOORE

Decision of the Court

5

speak. He let the sentencing go on. He fails to argue what he would have 

offered in mitigation that had not already been presented during [the 

trial].” Id. On that record, Hinchey concluded that “the error [was] technical, 

without any substantive consequence.” Id.

¶13 Here, Moore argues that, had he been allowed to address the 

court before sentencing, he would have expressed his remorse for his 

actions and pled “his own case for leniency.” Moore’s counsel filed a 

sentencing memorandum, highlighting his age and poor health and 

requesting mitigated, concurrent sentences. The sentencing memorandum 

also highlighted Moore’s remorse, including a statement that “Moore told 

the detective he let the whole situation get to him, that he regrets bringing 

the gun to the situation, and he regrets what happened. With time, Mr. 

Moore has experienced more remorse, the more time he has had to think 

about it.” While Moore should have received an opportunity to address the 

court before the court announced the sentences, the court promptly 

recognized the error and gave Moore an opportunity to address the court, 

to which he responded and asked about the time of the sentence. Moore has 

failed to show fundamental error resulting in prejudice. 

CONCLUSION

¶14 Moore’s conviction and sentences are affirmed.