A Payson father and son have both received probation after beating a woman up in what the victim described as a tag-team assault last December.
Zachary King Smith, 24, and Jerry Smith will each serve three years probation after pleading guilty to domestic violence charges.
Prosecutors had hoped Zachary would also get some jail time, but Superior Court Judge Peter Cahill Monday said he took into account the victim’s request that her attackers receive no jail time.
“It is important for victims to be heard and if we don’t listen to those voices it’s as if their voices are never heard so the views of the victim in this case are especially important to me,” Cahill said. “It seems to me as though she is safe, feels safe from you and there are a number of reasons why I think the likelihood that you would commit any other crime like this again is relatively low.”
The case touched off an exchange between the judge and the defense attorney about blaming the victim. Although Zachary expressed remorse for the attack, some friends wrote letters sharply criticizing the victim, which Cahill said “infuriated him.” After a discussion in court, Cahill didn’t accept the prosecution’s recommendation of prison time — but did order Zachary to write to the people who supported him and to take responsibility for the attack.
Cahill said he rejected a prison sentence based on several mitigating factors including Zachary’s lack of a felony record, efforts to get counseling, employment, strong family support and remorse.
Those outweigh harm to the victim and his father’s involvement in the attack, Cahill said.
The attack occurred on the evening of Dec. 29, 2012. Zachary’s then-fiancee called police for help from an Aspen Cove apartment. When officers arrived they could hear the woman yelling for help and kicked in the door, which was barricaded with a chair.
Inside, officers found blood throughout the apartment as well as on the victim and both Zachary and Jerry.
The woman explained they had all been drinking and she had helped Jerry to bed. She then used a squirt bottle to spray Zachary in the face to wake him up.
This aggravated Zachary, however, and the two got into a fight, according to police reports.
When the woman called for Jerry’s help, “they both started beating her in a tag team manner.”
“She stated that they would take turns slapping her and holding her down and choking her,” according to police records. At some point in the attack, she lost consciousness.
Doctors later said the woman had a broken nose, concussion and multiple bruises.
When officers questioned Zachary, he said had been pissed off at his fiancee.
At sentencing Monday, Zachary said he was sorry.
“I just want to say how extremely remorseful I am for my actions,” he said.
The victim appeared telephonically at Monday’s hearing. Her only comment was to oppose a prison sentence.
She told a probation officer earlier that her life had gone nowhere in the past year.
“I have not had any stability and this incident has turned my life upside down,” according to a pre-sentencing report. “I have had back pain in the past, but since then it has gotten a lot worse.”
Several people wrote letters of support for Zachary and blamed the victim for the attack. All said Zachary was an outstanding man who had never displayed aggressive behavior. However, some sharply criticized his fiancee.
One friend of Zachary wrote, “the true facts of this incident are overwhelming exaggerated and we strongly feel the courts should show goodwill in Zachary’s favor.”
Cahill said the letters infuriated him by implying the victim deserved the abuse.
“I was so irritated with some of the letters that I had to focus on the others,” he said.
Marc Stanley, Gila County deputy attorney, said there is no excuse for the abuse, even if the woman sprayed Zachary in the face with water.
“It’s as if to say because of this action she deserves to be beaten to the point where her nose is broken, her blood is covering an apartment and she is left choked or strangled and the defendant hit her to the point unconscious,” he said. “I do not agree with, nor do I like, the continued attempt to shift the blame away from this defendant’s actions.”
Stanley said he would like to see Zachary serve some prison time given the violent nature of the assault.
“This defendant needs to understand that there will be serious consequences when he places his hands on another person,” he said.
Zachary’s lawyer, Michael Bernays, objected to Stanley’s comments.
“I have never suggested that (spraying him with water) justified what happened and the state’s continued insistence that a recognition that people sometimes push buttons that result in reactions that are far beyond what they intended is an inaccurate view of the realities of the world,” he said. “It disturbed me when the court made comments at our last hearing, which seemed to suggest that because, not Mr. Smith, but some people that wrote letters on his behalf.”
“Who submitted those letters?” Cahill interjected.
“We did your honor. I can’t tell people what to think about events. I don’t stand as the censor on their opinions on what this relationship was about, whether Mr. Smith was wise to stay in this relationship or not. And the worst that they said was that they believed it had been instigated by (victims’ name redacted) actions in the way she chose to try to awaken Mr. Smith.”
The discussion ultimately prompted Judge Cahill to require Zachary to write letters to some people who sent support letters on his behalf, taking responsibility for having resorted to violence as a result of the argument.
Cahill sentenced Zachary to three years of probation for two counts of aggravated domestic violence.
He pointed out that if Zachary engages in any further domestic violence while on probation he would likely go to prison.
Shawn Fuller, chief deputy county attorney, said Zachary could have served prison time given the terms of the plea agreement and they had argued for that given the “deliberate, sustained nature of the attack.”
A probation officer had also recommended prison time.
A substance abuse counselor, however, testified Monday that she thought Zachary could learn more out of prison if he continues to attend counseling.