NOTICE:
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
IN THE COURT OF APPEALS
STATE OF ARIZONA
DIVISION ONE
STATE OF ARIZONA,
)
)
)
)
)
)
)
)
)
)
Appellee,
v.
JAIME DEJESUS VAZQUEZ,
Appellant.
DIVISION ONE
FILED: 06/14/2011
RUTH A. WILLINGHAM,
CLERK
BY: DLL
1 CA-CR 10-0190
DEPARTMENT C
MEMORANDUM DECISION
(Not for Publication –
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2009-152507-001 DT
The Honorable Steven P. Lynch, Commissioner
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By
Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
and Barbara A. Bailey, Assistant Attorney General
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By
Edith M. Lucero, Deputy Public Defender
Attorneys for Appellant
Phoenix
K E S S L E R, Judge
¶1
resisting
Jaime
DeJesus
arrest.
Vazquez
Vazquez
appeals
argues
his
there
conviction
was
for
insufficient
evidence
erred
to
support
when
it
his
conviction
failed
to
and
give
that
several
the
trial
court
additional
jury
instructions regarding the elements of resisting arrest.
For
the reasons that follow, we affirm Vazquez’s conviction.
FACTUAL AND PROCEDURAL HISTORY
¶2
Vazquez
was
a
passenger
subject of a traffic stop.
into
custody
and
the
in
a
vehicle
that
was
the
The driver of the vehicle was taken
vehicle
was
impounded.
During
the
encounter with police, Vazquez became angry and began to yell
and curse.
Despite police orders not to do so, Vazquez tried to
interact with the driver as she sat in the back of a police car,
agitating the driver with his actions.
to
yell
and
attempt
to
interact
After Vazquez continued
with
the
driver,
police
determined Vazquez was interfering with their investigation and
ordered him to leave the area.
When Vazquez refused, the police
decided to place him under arrest.
A struggle ensued between
Vazquez and the police, during which one of the three officers
it ultimately took to subdue him suffered a dislocated thumb.
Additional details are discussed in the context of the issues
addressed below.
¶3
Vazquez
was
charged
with
aggravated assault and resisting arrest.
disorderly
conduct,
At the close of the
State’s case at trial, the trial court granted Vazquez’s motion
for judgment of acquittal on the count of disorderly conduct.
2
The
jury
assault
ultimately
but
guilty
found
of
Vazquez
resisting
not
guilty
arrest.
of
The
aggravated
trial
court
suspended the imposition of sentence, placed Vazquez on three
years
of
probation
undesignated.
pursuant
Arizona
to
and
ordered
that
Vazquez timely appealed.
Arizona
Revised
Constitution,
Statutes
Article
(“A.R.S.”)
the
offense
remain
We have jurisdiction
6,
Section
sections
9,
and
12-120.21(A)(1)
(2003) and 13-4033 (2010).
DISCUSSION
I.
Sufficiency of the Evidence
¶4
was
As the first issue on appeal, Vazquez argues there
insufficient
evidence
to
support
his
conviction
for
resisting arrest and, therefore, the trial court should have
granted
his
motion
for
judgment
of
acquittal.
Vazquez
was
charged with resisting arrest pursuant to A.R.S. § 13-2508(A)(1)
(2010).
That section provides, in part, “[a] person commits
resisting arrest by intentionally preventing or attempting to
prevent a person reasonably known to him to be a peace officer,
acting under color of such peace officer’s official authority,
from effecting an arrest by . . . using or threatening to use
physical force against the peace officer or another . . . .”
A.R.S. § 13-2508(A)(1).
“Physical force” is defined in relevant
part as “force used upon or directed toward the body of another
person.”
A.R.S. § 13-105(31) (2010).
3
Vazquez argues there was
insufficient evidence that he used or threatened to use physical
force against anyone and, therefore, he merely avoided arrest.
He does not challenge the sufficiency of the evidence to support
any other element of the offense.
¶5
“Reversible
error
based
evidence
occurs
where
there
only
on
insufficiency
is
a
complete
probative facts to support the conviction.”
of
the
absence
of
State v. Soto-Fong,
187 Ariz. 186, 200, 928 P.2d 610, 624 (1996).
“To set aside a
jury verdict for insufficient evidence[,] it must clearly appear
that upon no hypothesis whatever is there sufficient evidence to
support
the
Arredondo,
conclusion
155
Ariz.
reached
314,
by
316,
the
746
jury.”
P.2d
484,
State
486
v.
(1987).
Further, “[a] directed verdict of acquittal is appropriate where
there
is
no
substantial
evidence
to
warrant
a
conviction.”
State v. Fulminante, 193 Ariz. 485, 493, ¶ 24, 975 P.2d 75, 83
(1999)
(citation
and
internal
quotation
marks
omitted).
Substantial evidence “is more than a mere scintilla and is such
proof
that
reasonable
sufficient
to
beyond
reasonable
a
quotation
support
marks
persons
a
could
conclusion
doubt.”
omitted).
Id.
“The
accept
of
[a]
as
defendant’s
(citation
question
is
adequate
and
whether,
and
guilt
internal
on
the
evidence presented, rational factfinders could find guilt beyond
a reasonable doubt.”
Id.
The case must be submitted to the
jury if reasonable minds can differ on inferences to be drawn
4
from the evidence introduced at trial.
State v. Hickle, 129
Ariz. 330, 331, 631 P.2d 112, 113 (1981).
¶6
In
our
review
of
the
evidence,
we
“construe
the
evidence in the light most favorable to sustaining the verdict,
and resolve all reasonable inferences against the defendant.”
State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111
(1998).
Further, we resolve any conflict in the evidence in
favor of sustaining the verdict.
State v. Guerra, 161 Ariz.
289, 293, 778 P.2d 1185, 1189 (1989).
We do not, however, weigh
the evidence; that is the function of the jury.
¶7
Id.
In order to effect the arrest of Vazquez, one officer
grabbed his right arm while a second officer grabbed his left
arm.
Vazquez
officers.
immediately
attempted
to
spin
away
from
the
Vazquez also grabbed his right wrist with his left
hand, locked his wrists and locked his arms so the officers
could
not
move
his
arms
behind
his
back
to
handcuff
him.
Vazquez also took what was described as a “football stance” in
an effort to prevent the officers from getting his hands behind
his back.
During the struggle, Vazquez shifted his body back
and forth in an attempt to break free from the officers.
¶8
When Vazquez was ordered to stop resisting, he told
the officers, “You fuckin[’] cops are not taking me to jail” and
continued
to
struggle.
When
the
officers
attempted
to
bend
Vazquez over a nearby bench to gain leverage to control him,
5
Vazquez used his legs to prevent the officers from doing so.
The incident was described as a “standing wrestling match” and
“an
ongoing
struggle
and
fight
for
control.”
Both
officers
described the events in terms of a “struggle” and/or how Vazquez
“struggled.”
It was only after a third officer arrived that the
officers were finally able to gain control of Vazquez and place
him under arrest.
¶9
The
support
evidence
Vazquez’s
admitted
conviction
at
for
trial
was
resisting
sufficient
arrest.
to
Vazquez
attempted to spin away from the officers, struggled with the
officers to prevent them from placing his arms behind his back,
struggled to prevent the officers from gaining control over him
and struggled in an attempt to break free from their hold.
This
evidence was
find
sufficient
to
permit
a
reasonable
jury
to
beyond a reasonable doubt that Vazquez used or threatened to use
“physical force” as defined against one or more of the officers
who arrested him.
See State v. Lee, 217 Ariz. 514, 517, ¶ 11,
176 P.3d 712, 715 (App. 2008) (holding that evidence defendant
jerked her arm away from officer, struggled to keep officers
from placing her arms behind her back and kicked her legs to
prevent officers from gaining control of her was sufficient to
establish defendant used physical force against peace officers
to
prevent
them
from
effecting
arrest);
State
v.
Henry,
191
Ariz. 283, 284, 285, 955 P.2d 39, 40, 41 (App. 1997) (finding
6
that evidence defendant refused to be handcuffed once officer
forced him to ground, tucked his arms underneath his body and
“squirm[ed]”
defendant
against
forcibly
officer
resisted
was
the
sufficient
officer’s
to
find
attempt
to
the
effect
arrest).
¶10
his
While Vazquez’s testimony regarding the incident and
actions
contradicted
the
officers’
testimony
in
every
material way, “[t]he credibility of witnesses is an issue to be
resolved by the jury.”
624.
Soto-Fong, 187 Ariz. at 200, 928 P.2d at
“Because a jury is free to credit or discredit testimony,
we cannot guess what they believed, nor can we determine what a
reasonable jury should have believed.”
State v. Bronson, 204
Ariz. 321, 328, ¶ 34, 63 P.3d 1058, 1065 (App. 2003) (citation
and internal quotation marks omitted).
Further, while some of
the evidence may have been circumstantial, “Arizona law makes no
distinction between circumstantial and direct evidence.”
State
v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993).
¶11
Vazquez
also
argues
that
because
he
obtained
a
judgment of acquittal for disorderly conduct and was found not
guilty
resisted
of
aggravated
arrest.
The
assault,
he
trial
court
could
not
granted
have
the
actively
motion
for
judgment of acquittal because there was insufficient evidence
Vazquez disturbed the peace or quiet of a neighborhood, family
or person, not because there was insufficient evidence Vazquez
7
engaged in fighting, violent, or seriously disruptive behavior
or
made
unreasonable
noise.
See
A.R.S.
(elements of disorderly conduct).
§
13-2904(A)
(2010)
Regarding the acquittal for
aggravated assault, we will not attempt to divine why the jury
acquitted Vazquez of aggravated assault.
It will suffice to
note that an acquittal for aggravated assault does not establish
that
Vazquez
did
not
use
or
threaten
to
use
physical
against one or both of the police officers involved.
force
Further,
“there is no requirement that a jury’s verdicts on different
counts be consistent.”
State v. Barr, 183 Ariz. 434, 439, 904
P.2d 1258, 1263 (App. 1995).
13-2508(A)(1)
forcible
“confines
resistance
the
involving
Finally, Vazquez argues A.R.S. §
offense
some
of
resisting
substantial
rejected this identical argument in Lee.
arrest
danger.”
to
We
Lee, 217 Ariz. at 517,
¶ 12, 176 P.3d at 715.
¶12
The
evidence
introduced
at
trial
was
sufficient
to
support Vazquez’s conviction for resisting arrest pursuant to
A.R.S. § 13-2508(A)(1).
II.
The Jury Instructions
¶13
Vazquez argues the trial court erred when it failed to
give
seven
arrest.
additional
Rather
than
jury
instructions
specifically
regarding
identifying,
resisting
quoting,
or
otherwise addressing any of those seven proposed instructions in
his argument, Vazquez argues generally he “should have received,
8
to some degree, the instructions he had requested”; that the
instructions in general “offered the jury greater detail as to
what
legally
constitutes
‘resisting’
an
arrest
and,
more
importantly, what does not”; and that the instructions explained
“in greater detail what constituted resisting arrest, avoiding
arrest, or challenging an arrest.”
The majority of Vazquez’s
argument consists of arguing the evidence.
¶14
The trial court found its own proposed instructions
adequately informed the jury of the applicable law regarding
resisting
arrest
instructions.
and
declined
to
give
Vazquez’s
additional
The trial court ultimately instructed the jury
regarding the elements of resisting arrest as charged and the
statutory
definition
of
“physical
force.”
Vazquez
does
not
argue the instructions given by the court did not accurately
state the applicable law, did not give the jury an understanding
of the issues, or were misleading.
¶15
We first note that this issue was not preserved below.
Vazquez
objected
to
the
failure
to
give
three
of
the
instructions in their entirety, objected to the failure to give
a portion of a fourth, and raised no objection to the failure to
give
the
remainder.
Regarding
the
instructions
for
which
Vazquez raised objections, we review the trial court’s decision
to refuse those instructions for abuse of discretion.
State v.
Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995).
Regarding
9
the
instructions
and/or
portions
of
instructions
for
which
Vazquez raised no objection, we review for fundamental error.
See State v. Schrock, 149 Ariz. 433, 440, 719 P.2d 1049, 1056
(1986).
¶16
“The purpose of jury instructions is to inform the
jury of the applicable law . . . .”
State v. Noriega, 187 Ariz.
282, 284, 928 P.2d 706, 708 (App. 1996).
“A set of instructions
need not be faultless; however, they must not mislead the jury
. . . and must give the jury an understanding of the issues.”
Id.
“It is only when the instructions[,] taken as a whole[,]
are such that it is reasonable to suppose the jury would be
misled . . . that a case should be reversed for error” in the
instructions.
Schrock, 149 Ariz. at 440, 719 P.2d at 1056.
“Where the law is adequately covered by [the] instructions as a
whole, no reversible error has occurred.”
State v. Doerr, 193
Ariz. 56, 65, ¶ 35, 969 P.2d 1168, 1177 (1998).
¶17
Regarding
objections
below,
the
the
instructions
first
for
which
instruction
Resisting Arrest” instruction.
was
Vazquez
the
raised
“Defense
to
That instruction read, “[m]ere
[a]rgument with or criticism of a peace officer is [sic] not
sufficient grounds, without more, to find a person guilty of
‘resisting
arrest.’”
The
trial
court
did
not
discretion when it declined to give this instruction.
was
properly
instructed
regarding
10
the
elements
of
abuse
its
The jury
resisting
arrest
and
the
definition
of
“physical
force.”
Those
instructions did not permit a conviction for resisting arrest
based upon mere argument or criticism.
follow their instructions.”
“Juries are presumed to
State v. Dunlap, 187 Ariz. 441,
461, 930 P.2d 518, 538 (App. 1996).
Further, “when a jury is
properly instructed on the applicable law, the trial court is
not required to provide additional instructions that do nothing
more than reiterate or enlarge the instructions in defendant’s
language.”
Bolton, 182 Ariz. at 309, 896 P.2d at 849.
Although
a party is entitled to an instruction on any theory reasonably
supported
by
instruction
the
evidence,
when
instructions.”
it
is
“a
party
is
adequately
not
entitled
covered
by
to
an
other
State v. Martinez, 196 Ariz. 451, 460, ¶ 36, 999
P.2d 795, 804 (2000).
¶18
The
second
instruction
for
which
Vazquez
raised
objection was the “Intent to Resist Arrest” instruction.
instruction
read,
“A
person
cannot
have
intent
to
an
That
resist
an
arrest before the peace officer has informed the person that
there is an intent to arrest him.
A person can be informed of
the peace officer’s intent to arrest through words or actions.”
The trial court did not abuse its discretion when it declined to
give this instruction.
First, we recently rejected, in part,
the
in
argument
expressed
Vazquez’s
instruction
in
State
v.
Barker, 1 CA-CR 09-0700, 2011 WL 1519361, at *2, ¶ 10 (Ariz.
11
App. Apr. 21, 2011).
Therefore, the proposed instruction was,
in part, a misstatement of the law.
Even absent our holding in
Barker, there was no evidence to support the instruction because
Vazquez
never
claimed
he
was
not
informed
of
unaware of the officers’ intent to arrest him.
nor
otherwise
The evidence
introduced at trial established the police officers told Vazquez
he was under arrest when they first attempted to effect the
arrest and there was no evidence or argument to the contrary.
¶19
The
objection
was
instruction.
third
the
instruction
“Avoiding
for
not
which
Vazquez
Resisting
raised
Arrest
an
[sic]”
That instruction read: “One who runs away from a
peace officer attempting to make an arrest, or one who makes an
effort to shake off a peace officer’s arm [sic] is not resisting
arrest.
Mere
non-submission
is
not
resisting
arrest.”
The
trial court did not abuse its discretion when it declined to
give this instruction.
Again, the jury was properly instructed
regarding the elements of the offense of resisting arrest and
what
constitutes
“physical
force.”
Those
instructions
adequately informed the jury they could not convict Vazquez of
resisting arrest simply because he ran away, shook off an arm,
or merely failed to submit without more on his part.
juries are presumed to follow their instructions.
Again,
We also note
that because there was no evidence Vazquez ran way, that portion
of the instruction was not supported by the evidence.
12
¶20
The
fourth
instruction
for
which
Vazquez
raised
an
objection was a portion of an instruction Vazquez titled, “Case
Law
that
Defendant
Instructions.”
The
Requests
portion
Be
of
Included
the
as
instruction
Part
for
of
Jury
which
he
objected read:
Resisting arrest is a crime committed against a
person; a defendant must use or threaten to use
physical force or any other means that creates a
substantial risk of causing physical injury to the
peace officer or another to violate the statute,
whereas if a defendant prevented arrest without using
or threatening to use physical force or other means
creating substantial risk of physical injury, he
‘avoids arrest.’
The trial judge did not abuse its discretion when it declined to
give this instruction because it was a misstatement of the law
and
is
misleading.
This
proposed
instruction
combined
the
elements of resisting arrest as defined pursuant to A.R.S. § 132508(A)(1) (use or threatened use of physical force against an
officer)
with
the
elements
of
resisting
arrest
as
defined
pursuant to section 13-2508(A)(2) (use of any other means which
creates
a
substantial
risk
of
causing
physical
injury
to
an
officer) to create an ambiguously defined offense which does
exist under Arizona law.
¶21
Regarding the instructions for which Vazquez raised no
objection, “[t]o establish fundamental error, [a defendant] must
show that the error complained of goes to the foundation of his
case, takes away a right that is essential to his defense, and
13
is of such magnitude that he could not have received a fair
trial.”
601,
State v. Henderson, 210 Ariz. 561, 568, ¶ 24, 115 P.3d
608
(2005).
Even
once
fundamental
error
has
been
established, a defendant must still demonstrate the error was
prejudicial.
¶22
Id. at ¶ 26.
The
objection
first
was
instruction
the
“Resisting
for
which
Arrest”
Vazquez
raised
instruction.
no
That
instruction paraphrased A.R.S. § 13-2508(A)(1) with additional
language
and
correctly
resisting arrest.
identified
many
of
the
elements
of
However, that instruction also provided that
in order to convict Vazquez of resisting arrest, [t]he jury must
find that “the means used by [Vazquez] to prevent the arrest
involved either the use or threat to use physical force or any
other substantial risk of physical injury to either the peace
officer or another.”
this instruction.
instruction,
A.R.S.
§
(A)(2)
(any
physical
this
We find no error in the failure to give
First, just as with the “Case Law . . .”
language
13-2508(A)(1)
improperly
injury).
or
creating
means
(use
a
Vazquez
combined
threatened
use
substantial
was
not
elements
of
risk
charged
from
force)
of
and
causing
pursuant
to
subsection (A)(2) and a conviction pursuant to subsection (A)(1)
does
not
Therefore,
require
the
“a
substantial
instruction
would
risk
of
injury”
have
permitted
to
the
anyone.
jury
to
convict based on elements which are not elements of the charged
14
offense.
of
the
Further, this portion of the instruction omitted one
elements
(A)(1).
of
the
offense
as
defined
under
subsection
The instruction provided a defendant may be convicted
based upon mere use or threatened use of physical force.
A
conviction
a
pursuant
defendant
officer
use
or
or
to
subsection
threaten
another.”
to
(A)(1)
use
Therefore,
force
the
requires
“against
instruction
that
the
peace
was
also
a
misstatement of the law.
¶23
The next two instructions for which Vazquez raised no
objection
to
their
exclusion
were
the
“Justification
–
Self
Defense” instruction and the “Use of Force in Law Enforcement”
instruction.
The
self-defense
instruction
paraphrased
the
language of A.R.S. § 13-404(B)(2) (2010) regarding how a person
may use physical force to resist arrest if the physical force
used
by
allowed
the
by
peace
officer
law.
The
effecting
“Use
of
the
Force
arrest
in
Law
exceeds
that
Enforcement”
instruction paraphrased A.R.S. § 13-409 (2010) regarding when
and to what extent physical force may be used in the course of
an arrest.
¶24
We find no error in the failure to give either of
these instructions.
by
the
evidence.
First, the instructions were not supported
There
was
no
evidence,
and
Vazquez
never
argued, the arrest was not lawful, the police used force beyond
that
allowed
by
law
or
that
Vazquez
15
acted
in
self-defense.
Further, the “Use of Force in Law Enforcement” instruction was a
misstatement of the law because it provided that an officer may
use physical force to make an arrest only after the officer has
made
known
the
purpose
of
the
arrest.
Section
13-409(2)
provides a person may use physical force to effect an arrest if,
in addition to satisfying the other elements of section 13-409,
they make known the purpose of the arrest, if they believe the
purpose of the arrest is otherwise known to the arrestee, or if
the purpose cannot be reasonably made known to the arrestee.
¶25
The
final
instructions
for
which
Vazquez
raised
no
objection are contained in subparagraphs 2 and 3 of the “Case
Law”
instruction
addressed
in
part
above,
supra
¶
20.
Subparagraph 2 read:
One who runs away from a peace officer attempting to
make an arrest, or one who makes an effort to shake
off a peace officer’s arm is not resisting arrest.
Mere non-submission is not resisting arrest.
The
state must prove, beyond a reasonable doubt, that the
defendant engaged in assaultive behavior with the
intent to prevent an arrest.
If the state is unable
to prove this, you must find the defendant not guilty.
We
find
no
error
subparagraph 2.
in
the
failure
to
instruct
the
jury
with
First, the first two sentences of subparagraph
2 are identical to the “Avoiding not Resisting Arrest [sic]”
instruction already addressed above.
Second, the “assaultive
behavior”
because
adequately
language
was
instructed
unnecessary
regarding
16
the
elements
the
of
jury
was
resisting
arrest. 1
Again, “a party is not entitled to an instruction when
it is adequately covered by other instructions.”
Martinez, 196
Ariz. at 460, ¶ 36, 999 P.2d at 804.
¶26
Subparagraph
3
of
the
instruction
read,
in
part,
“[w]hen an individual is the object of an attempt to effect his
or
her
arrest,
the
individual
may:
[s]ubmit
[a]void the arrest; or [r]esist the arrest.
to
the
arrest;
Only the latter
conduct constitutes the statutory offense of Resisting Arrest.”
We find no error in the failure to give a jury instruction which
does nothing more than instruct the jury that only resisting
arrest constitutes the statutory offense of resisting arrest.
¶27
For the above reasons, we find no error, fundamental
or otherwise, in the failure to give any of Vazquez’s proffered
instructions regarding resisting arrest.
1
We acknowledge we used the phrase "assaultive behavior" in
State v. Womack when we addressed whether the offense of
resisting arrest encompassed mere flight from an officer.
174
Ariz. 108, 111, 847 P.2d 609, 612 (App. 1992) ("As we read the
statute, it prohibits assaultive behavior directed toward an
arresting officer, not an arrestee's efforts to put as much
distance as possible between himself and the officer.").
We
used this phrase as a general, non-technical characterization to
contrast the general conduct contemplated by A.R.S. § 13-2508
with the conduct of simply running away.
We did not hold nor
otherwise imply that a conviction pursuant to A.R.S. § 13-2508
requires that the defendant engage in conduct that would
otherwise constitute assault as defined in A.R.S. § 13-1203
(2010) or as defined under civil law.
17
CONCLUSION
¶28
Because
we
find
no
error,
we
affirm
Vazquez’s
conviction.
/s/
_________________________________
DONN KESSLER, Judge
CONCURRING:
/s/
____________________________________
PATRICIA A. OROZCO, Presiding Judge
/s/
____________________________________
MICHAEL J. BROWN, Judge
18
