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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JOSHUA GEORGE DAVIDSEN, Appellant. 

No. 1 CA-CR 19-0407 

Appeal from the Superior Court in Maricopa County

No. CR2018-138229-001 

The Honorable Marvin L. Davis, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joshua C. Smith

Counsel for Appellee 

Maricopa County Public Defender’s Office, Phoenix

By Mark E. Dwyer

Counsel for Appellant

FILED 10-1-2020
STATE 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 Davidsen appeals his convictions and 

resulting consequences for two counts of disorderly conduct and one count 

of threatening or intimidating. For reasons that follow, we affirm.

FACTUAL1 AND PROCEDURAL HISTORY

¶2 Davidsen and B.T. were neighbors. B.T. and her boyfriend, 

M.S., were swimming in her new pool one night when Davidsen started an 

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, Class 6 dangerous felonies (Counts 1 and 2), and threatening or 

intimidating, a Class 1 misdemeanor (Count 3). Davidsen’s first trial ended 

in a hung jury. Following the retrial, a jury convicted Davidsen as charged.

The 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 Statutes (“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 

disorderly conduct offenses. Davidsen did not object when the superior

court imposed his sentence. Thus, we review his challenge only for

fundamental, prejudicial error. See State v. Escalante, 245 Ariz. 135, 140, 142, 

¶¶ 12–13, 21 (2018). An illegal sentence is fundamental error. State v. Thues, 

203 Ariz. 339, 340, ¶ 4 (App. 2002). 

¶5 “An act or omission which is made punishable in different 

ways by different sections of the laws may be punished under both, but in 

no event may sentences 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

concurrent sentences, or multiple acts, authorizing consecutive sentences, 

see State 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 conduct2 – and “[i]f the remaining evidence satisfies the 

elements of the other crime, then consecutive sentences may be 

permissible[.]” 161 Ariz. at 315. We consider the other factors only if the 

first part 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 that the defendant committed a single act[.]” 161 Ariz. at 315

(emphasis added). Third, we 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 crime.” Id. Relevant to the issue

before us, “despite 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 Applying the first Gordon factor, we must discard the 

evidence necessary to prove disorderly conduct and determine whether the 

remaining evidence satisfies the elements of threatening or intimidating. As 

presented to the jury, the disorderly conduct 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 disturbed the peace 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 threatening or 

intimidating, 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 completed the crime of

disorderly conduct when the victims saw him waving the knife as he stood 

by the fence, and we agree. Taking away that evidence, the remaining 

evidence established that Davidsen threatened to cut M.S.’s throat. Given 

the verbal altercation minutes earlier and Davidsen’s aggressive demeanor, 

his 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 would 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). Possessing the knife may have 

added weight to Davidsen’s threat but was unnecessary to prove the 

threatening or intimidating charge. 

¶10 Turning 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 twenty 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 disturbed each victim’s peace without 

conveying a genuine threat to injure—given the distance and block fence

separating them. See In 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.”). Therefore, because the evidence showed it was 

factually possible for Davidsen to disturb the victims without threatening 

them, the second Gordon factor weighs toward viewing the crimes as 

multiple acts. 

¶12 For similar reasons, the third Gordon factor also weighs 

against concluding Davidsen committed a single act. Davidsen’s threat to 
STATE 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 disturbing their peace. 

¶13 Lastly, Davidsen argues the way in which the evidence was 

presented, and the prosecutor’s closing argument, support his single-act 

argument, 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 when 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 not 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.