State v. Gulley, 240 Ariz. 580

Background

Defendant Donald Gulley assaulted E.W. with a curtain rod, chased her into a kitchen, was restrained by her adult son S.W., who lost consciousness, then later threatened to kill them while pounding on a locked bedroom door. S.W. fled and reported to M.W., who called police.
State charged two counts of disorderly conduct (domestic violence) alleged as class 6 felonies under A.R.S. § 13-707(B) based on a prior misdemeanor disorderly-conduct conviction; also charged aggravated assault (reduced by the jury to assault) and threatening or intimidating (misdemeanor).
At trial the parties stipulated to a certified copy of the prior disorderly-conduct conviction; M.W. testified about S.W.’s out-of-court statements over defendant’s hearsay objection.
Jury convicted on both disorderly-conduct counts (as charged), guilty of assault (lesser included) and guilty of threatening; court sentenced concurrently to presumptive 3.75 years for the class 6 felony counts after finding defendant a category-three repetitive offender based on multiple prior felonies.
On appeal defendant raised: (1) jury decided prior-conviction element rather than court; (2) insufficiency to show prior conviction was for the same subsection; (3) admission of M.W.’s testimony (hearsay/excited utterance); (4) challenges to use/classification of prior felonies and whether § 13‑707(B) converts misdemeanor convictions into felonies for classification/sentencing.

Issues

Issue	State's Argument	Gulley’s Argument	Held
Whether jury should determine prior misdemeanor conviction element (§ 13‑707(C))	Parties agreed jury could be instructed on prior conviction; no reversible error because defendant invited the error	Jury, not court, decided prior-conviction element — requires new trial	No new trial; defendant invited the error by agreeing the prior was an element for the jury; no prejudice shown
Whether prior conviction was the “same misdemeanor” under § 13‑707(B) (different subsections)	Disorderly conduct is a unitary offense; subsections are modes, not distinct crimes	Subsections differ; state failed to prove prior was under same subsection (A)(1)	Held prior was the same misdemeanor; subsections of § 13‑2904(A) constitute a single offense with alternative means
Admissibility of S.W.’s out‑of‑court statements to M.W. (hearsay exceptions)	Statements were excited utterances (startling event; declarant still under stress); admissible	Statements not sufficiently contemporaneous; defendant had time to reflect	Admission affirmed: within trial court’s discretion; statements made 5–10 minutes after events while declarant still highly agitated met excited‑utterance test
Classification/sentencing under § 13‑707(B): does recidivist misdemeanor remain a misdemeanor but receive felony sentence, or become a felony?	§ 13‑707(B) elevates the offense to the next higher class (i.e., becomes a class 6 felony) consistent with sentencing scheme	Defendant/state argued statute leaves conviction as misdemeanor but requires felony‑level sentence; sentencing as category‑three repetitive offender was fundamental error	Court interprets § 13‑707(B) to convert qualifying recidivist class 1 misdemeanor into a class 6 felony; therefore court properly sentenced Gulley as a category‑three repetitive offender

Key Cases Cited

State v. Freeney, 223 Ariz. 110 (2009) (different subsections can define distinct crimes when elements materially differ)
State v. Draper, 123 Ariz. 399 (1979) (construing predecessor to § 13‑707 and referring to enhanced misdemeanor as class 6 felony)
State v. Beasley, 205 Ariz. 334 (App. 2003) (excited‑utterance admissibility factors and totality of circumstances standard)
State v. Anaya, 165 Ariz. 535 (App. 1990) (defining requirements for excited utterance and present sense impression distinctions)
State v. Nelson, 214 Ariz. 196 (App. 2007) (standard to view evidence in light most favorable to sustaining verdict)