A single bullet fired into a car is enough to result in four separate counts of assault, the state Court of Appeals has concluded.
A claim by Dominick Cooke that he could not be convicted of multiple charges in a Tucson road-rage case because there was just a single bullet was rejected by the Court of Appeals in a new ruling.
Cooke is simply misreading the law, said Appellate Judge Jeffrey Sklar, writing for the unanimous court.
That means the multiple aggravated assault convictions from the 2021 road rage incident that injured twin 5-year-old girls are upheld.
According to court records, Cooke was a passenger in a vehicle when he shot at the car being driven by the girls’ parents in the area of North Dodge Boulevard and East Grant Road.
After a verbal altercation, Cooke fired a single shot into the driver’s side door of the family’s pickup, with the bullet shattering one of the twin’s shinbones before it ricocheted and grazed the other twin’s arm.
Police eventually found the sedan and identified Cooke as the gunman.
Cooke was eventually found guilty on four counts of aggravated assault and other related charges, some of the counts to be served consecutively, with a cumulative total of 48 years.
Dominick Cooke
On appeal, Cooke called the convictions “multiplicitous’’ because they all arose from a single incident. That, Cooke argued, violates the Double Jeopardy clauses of both the U.S. and Arizona constitutions, because he was effectively punished multiple times for the same act.
The issue, Sklar explained, turns on what Arizona courts have determined is an “allowable unit of prosecution.’’
What Cooke was arguing, the judge said, is the law on aggravated assault creates a “conduct-driven’’ unit of prosecution.
“In other words, he argues that each ‘use’ of a deadly weapon is a separate crime,’’ Sklar said. “It follows, he argues, that because he fired only one shot, he was eligible for only one conviction, regardless of how many occupants were in the truck or how many victims the bullet struck.’’
The flaw in that, said the judge, is that’s not how the law on aggravated assault is worded. That law, explained Sklar, makes it a crime to use a deadly weapon on “another person.’’
“Thus, under these circumstances, firing a single shot constitutes multiple aggravated assaults with a deadly weapon,’’ the judge said. “Put differently, a defendant commits a separate aggravated assault with a deadly weapon on each victim.’’
And Sklar rejected Cooke’s claim that wasn’t what the legislature intended, saying the statute is “unambiguous.’’
The appellate court was no more impressed by Cooke’s argument that the jury could have found that his girlfriend, who was in the car with him, actually fired the shot. What that would have meant is the only thing he could be found guilty of was brandishing a deadly weapon that placed the parents in reasonable apprehension of imminent physical injury.
Sklar said there are several problems with that.
First, he said the parents both testified the weapon was fired mere seconds after Cooke brandished it, suggesting it did not change hands.
“The jury also heard a recorded jail call from Cooke asking his girlfriend to confess to the shooting,’’ the judge said.
“After that call, the girlfriend — who by then was Cooke’s wife — testified that she picked up the weapon and accidentally ‘made the gun go off,’ ‘’ Sklar wrote. “This was even though she had previously told police that she had not shot the gun.’’
Under those circumstances, the appellate judge said, no reasonable jury could have accepted Cooke’s argument and concluded that his girlfriend fired the weapon.
The appellate court, however, did say there was insufficient evidence to sustain separate verdicts of aggravated assault causing a temporary but substantial disfigurement related to the bullet that grazed one child’s arm.
And the judges also reversed a finding that the offenses constituted a “dangerous crime against children.’’
That requires a separate finding by a jury that a defendant “focused on, directed against, aimed at, or targeted a victim under the age of 15.’’ Arizona law spells out anyone convicted of such a crime must serve every day of his or her sentence, with no possibility of early release.
But Sklar said the jury never was asked to reach the conclusion that what Cooke did fits that definition — and never made an actual finding it applies. That, he said, made the day-for-day sentencing by the trial judge incorrect.
All that sends the case back to court to recalculate the 48-year sentence and direct that Cooke is now entitled to earned release credits.
