NOTICE: NOT FOR PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE

LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE

ARIZONA COURT OF APPEALS DIVISION ONE

STATE OF ARIZONA, 

Appellee,

v.

ROLAND DEWAYNE MCDONALD, 

Appellant.

Nos. 1 CA-CR 12-0761

 1 CA-CR 13-0477

(Consolidated)

Appeal from the Superior Court in Maricopa County

No. CR2011-155142-001

The Honorable Hugh E. Hegyi, Judge

AFFIRMED AS MODIFIED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Colby Mills

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Louise Stark

Counsel for Appellant
STATE v. MCDONALD 

Decision of the Court

2

MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which 

Presiding Judge Patricia A. Orozco and Judge Lawrence F. Winthrop

joined.

J O N E S, Judge:

¶1 Defendant Roland McDonald appeals his conviction and 

sentence for aggravated assault causing temporary but substantial 

disfigurement, a class four felony. On appeal, he raises three issues: (1) 

the trial court erred by instructing the jury on an improper lesser-included 

offense instruction, for which he was convicted; (2) the trial court failed to 

accurately award his presentence incarceration credit; and (3) the trial 

court improperly ordered him to pay the fees for DNA testing. For the 

following reasons, we affirm McDonald’s conviction and sentence as 

modified, with the exception that we vacate the portion of the sentencing 

minute entry requiring him to pay the DNA testing fees. 

FACTS AND PROCEDURAL HISTORY1

¶2 In October 2011, McDonald was employed by Peddler’s Son

Produce (Peddler’s) as a produce puller. On the night of the 22nd, J.M., 

McDonald’s supervisor, approached McDonald about his work 

performance. This sparked a verbal altercation that escalated to the point 

of other employees interjecting and separating the two men. Once 

separated, J.M. told McDonald to leave the premises and went to “cool 

off” in the bathroom; McDonald went to retrieve his personal items from 

his locker. 

¶3 Several minutes later, J.M. went outside to check 

temperatures on Peddler’s refrigerated trucks. By this point, McDonald 

had grabbed his belongings and headed outside as well. When McDonald

reached the outside area where J.M. was standing, he swung at J.M. and 

struck him with his right hand. The contact created a gash on J.M.’s neck 

 1 We view the facts in the light most favorable to sustaining the jury’s 

verdict and view all reasonable inferences against McDonald. State v. 

Hunter, 227 Ariz. 542, 543, ¶ 2, 260 P.3d 1107, 1108 (App. 2011). 
STATE v. MCDONALD 

Decision of the Court

3

under his chin, requiring nineteen stitches to close. At trial, several 

witnesses testified they saw a blade of some sort in McDonald’s hand 

following the attack, but could not say he had the blade in his hand when

he hit J.M. 

¶4 McDonald was indicted on one count of aggravated assault 

with a deadly weapon, a class three felony. See Ariz. Rev. Stat. (A.R.S.) 

§ 13-1204(A)(2) (2014).2 At trial, McDonald’s counsel requested that, in 

addition to the charged count, the jury be instructed on the “lesserincluded” offense of aggravated assault resulting in temporary but 

substantial disfigurement (aggravated assault causing disfigurement). 

See A.R.S. § 13-1204(A)(3).3 Thereafter, the jury found McDonald not 

guilty of aggravated assault with a deadly weapon but guilty of

aggravated assault causing disfigurement, the “lesser-included” offense

specifically requested by McDonald. The trial court sentenced McDonald 

to the presumptive term of ten years’ incarceration. McDonald timely 

appealed his conviction and sentence. 

¶5 Following his sentencing and the filing of his notice of 

appeal, McDonald moved to vacate the judgment, pursuant to Arizona 

Rule of Criminal Procedure 24.2, arguing the aggravated assault causing 

disfigurement instruction was erroneously given as it was not a proper 

lesser-included offense, and therefore his conviction violated the United 

States and Arizona Constitutions. The trial court denied his motion, 

finding McDonald requested the instruction be given and that the 

instruction comported with the evidence at trial. McDonald’s counsel did 

not submit a notice of appeal regarding the motion to vacate. Thereafter, 

McDonald petitioned for leave to file a delayed notice of appeal pursuant 

to Arizona Rule of Criminal Procedure 32.1(f), which the trial court 

granted. See State v. Rosales, 205 Ariz. 86, 87-88, ¶ 3, 66 P.3d 1263, 1264-65 

(App. 2003). McDonald then timely appealed. Upon McDonald’s motion, 

his two appeals were consolidated. We have jurisdiction pursuant A.R.S. 

§§ 12-120.21(A)(1) (2014), 13-4031 (2014), and -4033(A) (2014).

 2 Absent material revisions after the relevant dates, we cite to the current 

version of the statutes and rules unless otherwise indicated.

3 The jury was also instructed on simple assault. 
STATE v. MCDONALD 

Decision of the Court

4

DISCUSSION

I. Lesser-Included Offense 

¶6 McDonald argues the trial court erred by instructing the jury 

on aggravated assault causing temporary but substantial disfigurement, 

for which he was convicted, as it was not a proper “lesser-included” 

offense of the offense to which he was charged (aggravated assault with a 

deadly weapon). 

¶7 Assuming, without deciding, the complained of instruction 

was given in error, relief is unavailable to McDonald because he invited 

such error. State v. Logan, 200 Ariz. 564, 565-66, ¶ 9, 30 P.3d 631, 632-33 

(2001) (“If an error is invited, we do not consider whether the alleged error 

is fundamental, for doing so would run counter to the purposes of the 

invited error doctrine. Instead, as we repeatedly have held, we will not 

find reversible error when the party complaining of it invited the error.”); 

State v. Lucero, 223 Ariz. 129, 135, ¶ 17, 220 P.3d 249, 255 (App. 2009) 

(“[I]nvited error precludes a party who causes or initiates an error from 

profiting from the error on appeal. If the error is invited, the offending 

party has no recourse on appeal even under the exacting standard of 

fundamental error.”) (internal citations omitted). As McDonald

specifically requested the trial court provide the jury with the alleged 

erroneous instruction, he invited any error that may have arisen and 

“waived his right to challenge the instructions on appeal.” State v. Roque, 

213 Ariz. 193, 225, ¶ 137, 141 P.3d 368, 400 (2006); see Lucero, 223 Ariz. at 

136, ¶ 20, 220 P.3d at 256 (“[A] party invites an erroneous jury instruction 

by expressly requesting it.”). 

II. Presentence Incarceration Credit

¶8 A defendant is entitled to credit for all time spent in custody

pursuant to an alleged offense until the defendant is sentenced to 

imprisonment for that offense. A.R.S. § 13-712(B) (2014). McDonald was 

placed in custody on October 25, 2011, and was sentenced on November 

16, 2012. He was therefore entitled to 388 days of presentence 

incarceration credit; however, the trial court awarded him with 387 days. 

Thus, as the State concedes, McDonald is entitled to one additional day of 

presentence incarceration credit.

III. DNA Testing Fees

¶9 Finally, McDonald argues the trial court erred by ordering 

him to “pay the applicable fee for the cost of [DNA] testing in accordance 
STATE v. MCDONALD 

Decision of the Court

5

with A.R.S. § 13-610.” The State concedes A.R.S. § 13-610 (2014) does not 

authorize the trial court to order convicted persons to pay for the cost of 

that DNA testing. Accordingly, we vacate that portion of the trial court’s 

sentencing minute entry requiring McDonald to do so. State v. Reyes, 232 

Ariz. 468, 472, ¶ 14, 307 P.3d 35, 39 (App. 2013). 

CONCLUSION

¶10 For the foregoing reasons, we affirm McDonald’s conviction 

and sentence, but modify the sentencing minute entry to reflect 388 days 

of presentence incarceration credit. Further, we vacate the portion of the 

sentencing minute entry that directs McDonald to pay the costs of DNA 

testing.