NOT ICE: 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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 

## A RIZONA 

## C OURT OF 

## A PPEALS
D IVISION O NE

S TATE OF ARIZONA
, Appellee
,

v.

J OSHUA GEORGE DAVIDS EN, Appellant

.
No. 1 CA- CR 19-0407

A ppeal from the Superior Court in Maricopa County No. CR 2018-138229-001 The Honorable Marvin L. Davis , Judge P ro Tempore

AFFIRMED

COUNSEL
Arizona Attorney General’s Office
, Phoenix By Joshua C. Smith Counsel for Appellee

M aricopa County Public Defender’s Office
, Phoenix By Mark E. Dwyer C ounsel for Appellant FILED 10-1-2020STATE v. DAVIDSEN Decision of the Court

2 MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the Court, in which Presiding Judge Samuel A. Thumma and Judge David D. Weinzweig joined.

W I L L I A M S , Judge :

¶1 Joshua George D a vidsen appeals his convictions and resulting consequences for two counts of disorderly conduct and one count of thre atening or intimidating . For reasons that follow, we affirm.

FACT UAL 1 AND PROCEDURAL HISTORY

¶2 Dav idsen and B.T. were neighbors. B.T. and her boyfriend, M.S., were s wimming in her new pool one night when Davidsen started a n argument through the block fence separating their properties. Davidsen complained about B.T.’s dogs and B.T.’s recent pool construction

. He insulted B.T. and taunted her boyfriend. When the boyfriend reacted, Davidsen grabbed a knife from inside his home, stood by the fence waving the knife, and ultimately threatened to cut M.S.’s throat.

¶3 The State charged Davidsen with two counts of disorderly conduct, C lass 6 dangerous felon ies (Count s 1 and 2), and threatening or intimidating, a C lass 1 misdemeanor (Count 3)

. Davidsen’s first trial ended in a hung jury

. Following the retrial, a jury convicted Davidsen as charged. T he superior court sentenced Davidsen to concurrent terms of 1.75 years imprisonment on Counts 1 and 2 , with a two

- year probation grant for Count 3 to begin upon release from prison. We have jurisdiction over Davidsen ’s timely appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised S tatutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶4 Davidsen argues the consecutive term of probation imposed on Count 3 constituted an illegal sentence under § 13 -116 because the

1 We view the evidence in the light most favorable to sustaining the verdicts, resolving reasonable inferences against Davidsen. See State v. Stroud , 209 Ariz. 410, 412, ¶ 6 (2005).STATE v. DAVIDSEN Decision of the Court

3 threatening or intimidating offense arose from the same act as the disorder ly conduct offenses

. Davidsen did not object when the superior

cour t imposed his sentence

. Thu s, we review his c hallenge only for fundamental, prejudicial error. See State v. Escalante , 245 Ariz. 135, 140, 142, ¶¶ 12

– 13, 21 (2018). A n illegal sentence is fundamental error. State v. Thues
, 203 Ariz. 339, 340, ¶ 4 (App. 2002).

¶5 “An act or omission w hich is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentence s be other than concurrent.” A.R.S. § 13 -116. We apply a three

- part test set forth in State v. Gordon
, 161 Ariz. 308
, 312 –313 (1989), to determine whether a defendant committed a single act
, requiring

con current sentences , or multiple acts
, authorizing consecutive sentences , s ee S tate v. Carlson , 237 Ariz. 381, 400, ¶ 80 (2015).

¶6 Under the first Gordon factor , we “ subtract [] from the factual transaction the evidence necessary to convict on the ultimate charge [,]”

– here, disorderly conduct 2 – and “[ i] f the remaining evidence satisfies the elements of the other crime , then consecutive sentences may be permissible[

. ]” 161 Ari z. at 315

. We consider the other factors only if the first p art of the Gordon test does not end the inquiry

. See State v. Roseberry
, 210 Ariz. 360, 370, ¶ 58 (2005) (explaining the other Gordon factors are examined only when the first factor permits consecutive sentences).

¶7 The second Gordon inquiry analyzes “ whether, given the entire ‘transaction,’ it was factually impossible to commit the ultimate crime without also committing the secondary crime. If so, then the likelihood will increase tha t the defendant committed a single act[.] ” 161 Ariz. at 315 (emphasis added). Third, w e examine “ whether the defendant’s conduct in committing the lesser crime caused the victim to suffer an additional risk of harm beyond that inherent in the ultimate crim e.” Id

. R elevant to the i ssue before us , “d espite the general principle that probation is not a sentence, A.R.S. § 13

- 116 must be interpreted to prohibit the court from imposing a consecutive term of probation when the conviction underlying it flows from the same act as a conviction resulting in a sentence of imprisonment.” State v. Watson , 248 Ariz. 208, 218, ¶ 32 (App. 2020).

¶8 A pplying the first Gordon factor, we must discard the evidence necessary to prove di sorderly conduct and determine whether the remaining evidence satisfies the elements of threatening or intimidating. As presented to the jury
, the disorderly cond u ct charges required the State to

2 There is no dispute that disorderly conduct is the ultimate charge.STATE v. DAVIDSEN Decision of the Court

4 prove Davidsen “knowingly or intentionally disturb ed the p ea ce or quiet ” of B.T. and M.S

. by “recklessly handling or displaying” the knife

. See A.R.S. § 13-2904(A)(6). For the jury to convict Davidsen of threaten ing or intimidat ing, the State had to prove he “threatened or intimidated by word or conduct

. . . to cause physical injury to another person.” See A.R.S. § 13-1202(A)(1).

¶9 Both parties conclude that Davidsen c ompleted the crime of disorderly conduct when the victims saw h im waving the knife as he st ood by the fence , and we agree . T aking away th at evidence
, the remaining evidence established that Davidsen threat ened to cut M.S.’s throat

. Given the verbal altercation minutes earlier and Davidsen’s a ggressive demeanor
, hi s threat to cut M.S.’s throat satisfied the elements of the threatening or intimidating charge

. See In re Kyle M. , 200 Ariz. 447, 451 –452 , ¶¶ 22 -23 (App. 2001) (holding that § 13

- 1202(A)(1) applies to a “true threat,” meaning one that a reasonable person wou ld understand as a genuine threat to inflict harm) ; see also In re Ryan A

. , 202 Ariz. 19, 22

– 23, ¶¶ 11

- 14 (App. 2002) ( same and explaining the standard is objective) . P ossess ing the knife may have added weight to Davidsen’s threat but was un necessary to prove the threatening or intimidating charge

. ¶10 T urning to Gordon’s second factor
, B. T . testified that although Davidsen “disturbed [ her ] peace” by “waving a knife over the fence,” she was not in “physical fear” or “physical harm” because she was “far enough away.” Similarly , M.S. acknowledged that Davidsen’s act of “waving [the knife] in the air” was “disturbing
, ” but that Davidsen remained around t wenty feet away , never climbing over the fence

. ¶11 Based on the entire transaction, a reasonable juror could find that Davidsen’s display of the knife disturb ed each victim’s pea c e without conveying a genuine threat to injure

— given the distanc e and block fence separating them

. See I n re Kyle M. , 200 Ariz. at 451–452, ¶¶ 22-23; cf. State v. Erivez , 236 Ariz. 472, 476, ¶ 18 (App. 2015) (“Disturbing the peace or quiet of the victim does not necessarily rise to the level of placing the victim in reasonable apprehension of immediate physical injury, the conduct required for an assault.”). Th erefore , b ecause the evidence showed i t was factually possible for Davidsen to disturb the victims without threatening the m , t he second Gordon factor weighs toward viewing the crimes as multiple acts.

¶12 For similar reasons , the third Gordon factor also weighs against conclu ding Davidsen committ ed a single act

. Davidse n’s threat toSTATE v. DAVIDSEN Decision of the Court

5 cut M.S.’s throat added a risk of deadly harm not part of his disorderly conduct act of disturb ing the ir peace

. ¶13 Lastly, Davidsen argues the way in which the evidence was presented
, and the prosecutor’s closing argument
, support his single

- act

a rgument , given that the prosecutor emphasized Davidsen’s possession of the knife to prove all three crimes

. But we do not consider the State ’s arguments whe n conducting the Gordon analysis. 161 Ariz. at 315. Rather, we must determine whether the State produced evidence sufficient to show Davidsen committed multiple acts , and the State did so here

. Accordingly, the superior court did no t err , fundamentally or otherwise, by imposing a consecutive term of probation

.
CONCLUSION

¶14 For the foregoing reasons, we affirm Davidsen’s convictions
, sentences , and probation grant

.