STATE v. GUKEISEN

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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. ) ) DANIEL R GUKEISEN, ) ) Appellant. ) ) ) __________________________________) 1 CA-CR 11-0401 DIVISION ONE FILED: 12/11/2012 RUTH A. WILLINGHAM, CLERK BY: mjt DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-005838-001 The Honorable Cari A. Harrison, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Joseph T. Maziarz, Section Chief Counsel Craig W. Soland, Assistant Attorney General Attorneys for Appellee Phoenix Coppersmith Schermer & Brockelman PLC By James J. Belanger Scott M. Bennett Attorneys for Appellant Phoenix G O U L D, Judge ¶1 Daniel R. Gukeisen appeals his resulting sentence for manslaughter. conviction and the Gukeisen challenges the sufficiency of the evidence and also argues that the trial court erred in denying his motion for new trial based on a claim of prosecutorial misconduct. We affirm. BACKGROUND ¶2 Gukeisen was indicted for manslaughter, a class 2 felony and dangerous offense, stemming from the fatal stabbing of the victim during an altercation in front of Gukeisen s condominium. Upon trial to a jury, Gukeisen was convicted of manslaughter, but dangerous. the jury found the offense to be non- The trial court sentenced Gukeisen to a presumptive five-year prison term. Gukeisen timely appealed. DISCUSSION A. ¶3 to Sufficiency of Evidence Gukeisen contends his conviction must be reversed due insufficient evidence. Specifically, he argues that the evidence was insufficient to support a finding that he was not justified in using deadly force against the victim. claims of insufficient evidence de novo. We review State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). ¶4 A judgment of acquittal is appropriate when substantial evidence [exists] to warrant a conviction. 2 no State v. Nunez, 167 Ariz. 272, 278, 806 P.2d 861, 867 (1991)(quoting State v. Clabourne, 142 Ariz. 335, 345, 690 P.2d 54, 64 (1984)); see also Arizona Substantial evidence Rules is of proof Criminal that Procedure reasonable 20(a). persons could accept as sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. 277, 290, 908 P.2d 1062, 1075 State v. Spears, 184 Ariz. (1996). In reviewing the sufficiency of the evidence, we do not reweigh the evidence to decide if we would reach the same conclusion as the jury. v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 State (1997). Instead, we view the evidence in the light most favorable to upholding against the the insufficiency verdict, resolving defendant. of the Id. all reasonable Reversible evidence occurs only inferences error where based there is on a complete absence of probative facts to support the conviction. State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25, 555 P.2d 1117, 1118-19 (1976)). ¶5 The trial court determined the evidence supported various justification defenses and instructed the jury on selfdefense, defense of third party, defense of residence, and crime prevention. When evidence of justification is presented, the State must prove beyond a reasonable doubt that the defendant s acts were not justified. Arizona Revised Statutes ( A.R.S. ) § 3 13-205(A);1 State v. King, 225 Ariz. 87, 90, ¶ 14, 235 P.3d 240, 243 (2010). ¶6 A person is justified in . . . using . . . deadly physical force against another . . . [w]hen and to the degree a reasonable person would believe that deadly physical force is immediately necessary to protect himself against the other s use or attempted use of unlawful deadly physical force. 13-405(A). A.R.S. § The same standard applies to use of deadly physical force in the defense of a third party and premises. A.R.S. §§ 13-406, force 13-407(B). The use of deadly physical is justified for the purpose of crime prevention if and to the extent the person reasonably believes that . . . deadly physical force is immediately necessary to prevent the other s commission of certain enumerated offenses, including first or second degree burglary, aggravated assault, and sexual assault. A.R.S. § 13-411(A). Thus, the self-defense, defense of third party, defense of premises, and crime prevention justification statutes all permit the use of deadly force only when and to the extent a reasonable person would believe it immediately necessary to prevent an enumerated offense under § 13 411, or to protect against the use, attempted use, or threatened use of deadly physical force. 1 Absent material revisions after the relevant dates, statutes cited refer to the current version unless otherwise indicated. 4 ¶7 Viewed in the light most favorable to sustaining the verdict, the evidence was sufficient to permit the jury to find that Gukeisen stabbed the victim with a knife in response to a single punch that grazed his head. Gukeisen claims the State failed to meet its burden of proving that he was not justified in using deadly force against the victim because there was evidence that when he stabbed the victim (1) the fight was two against one; (2) the victim and his friend were younger and stronger; (3) the victim and his friend started the fight; and (4) either the victim or his friend hit Gukeisen s brother in the head with a rock. The evidence regarding use of a rock to hit Gukeisen s brother was disputed and conflicting, however, and because Gukeisen did not testify, there was no evidence that he actually believed that his use of deadly force against the victim was immediately necessary to protect himself or his brother from any use or threatened use of deadly force by the victim. To the Gukeisen made no contrary, claim that when he interviewed stabbed the defense and instead denied having a weapon. by the victim police, in self- This denial could reasonably be considered as evidence of consciousness of guilt that the stabbing was not justified. See State v. Kountz, 108 Ariz. 459, 463, 501 P.2d 931, 935 (1972)(upholding instruction that false statements by defendant concerning the charge against him may be considered as consciousness of guilt). 5 ¶8 In addition to the above circumstantial evidence that the stabbing was not justified, there was also direct evidence in the form statement of to an the admission police by Gukeisen. minimizing his As part of his participation in the altercation, Gukeisen stated that he knew use of deadly force would not have been appropriate in the situation. ¶9 We find no merit to Gukeisen s argument that the State cannot rationally contend his statement to the police denying involvement in the stabbing was false and then use portions of that same statement to support the case against him. It does not always follow that when a person lies, everything said in connection with the lie is false. As for which portions of Gukeisen s statement were true and which were false, it is for the jury to weigh the evidence and determine credibility, and we will not substitute our judgment for that of the jury. State v. Williams, 209 Ariz. 228, 231, ¶ 6, 99 P.3d 43, 46 (App. 2004). ¶10 Considering the totality of circumstances, the jury could reasonably find beyond a reasonable doubt that Gukeisen was not legally justified in stabbing the victim. Fulminante, 193 Ariz. 485, 494, ¶ 26, 975 See State v. P.2d 75, 84 (1999)(applying totality of circumstances test for sufficiency of evidence). We therefore hold that evidence to support the jury's verdict. 6 there was sufficient B. ¶11 Denial of Motion for New Trial his Gukeisen argues that the trial court erred in denying motion misconduct. for new trial based on a claim of prosecutorial We review the denial of a motion for new trial for abuse of discretion. State v. Hoskins, 199 Ariz. 127, 142, ¶ 52, 14 P.3d 997, 1012 (2000). ¶12 During closing argument, defense counsel argued that the State had failed to prove that Gukeisen was the person who stabbed the victim, and that even if he had, the evidence showed that Gukeisen rebuttal was argument, justified the in using prosecutor deadly force. addressed the In his defense arguments: Because think of this, what have we heard so far today, and basically throughout the entire case from the defense? I didn t do it. But if I did, it was in selfdefense. You can t have both. You don t get to make that kind of argument, although that s what they ve done here. He either did it and not in self-defense or he didn t do it at all. The testimony is that Dan Gukeisen is the person who stabbed [the victim], and you should find him guilty. ¶13 No objection was made by Gukeisen to the prosecutor s argument before the jury commenced deliberations. The next day, however, Gukeisen moved for a corrective instruction or, in the alternative, a mistrial based on two claims of prosecutorial misconduct. One of the claims of misconduct raised by Gukeisen 7 involved the prosecutor s comment during rebuttal argument that You can t have misstatement both. argued that the of Gukeisen regarding his ability law this to was a assert alternative defenses and that the jury should be instructed that it was proper for him to rely on the self-defense without having to admit that he stabbed the victim. ¶14 On appeal, Gukeisen argues that the trial court erred by failing to correct the prosecutor s misstatement of the law concerning motion for his alternative new trial defenses raising the and same then by denying Contrary issue. his to Gukeisen s argument, however, the record reveals the trial court granted the motion for a curative instruction and instructed the jury precisely as requested by him: Members of the jury, you are further instructed that no evidence has been presented in this trial that defendant Daniel Gukeisen has ever said, acknowledged or admitted to stabbing [the victim]. Further, it is proper under the law for the defendant to rely on the defense [of] selfdefense and for the Court to instruct the jury on self-defense as it s done without the defendant admitting, claiming or otherwise acknowledging that he, defendant, is the person that stabbed [the victim]. ¶15 Even if the prosecutor s remarks were deemed to constitute a misstatement of the law as opposed to merely an effort to disparage the presentation of factually inconsistent defenses, which we do not decide, 8 acts of prosecutorial misconduct may be cured by the trial court's instructions. State v. Means, 115 Ariz. 502, 505, 566 P.2d 303, 306 (1977). Gukeisen s proffer of an affidavit detailing post-trial statements by several jurors submitted with his motion for new trial to prove the prosecutor s rebuttal argument resulted in juror confusion unavailing. notwithstanding curative instruction is Arizona does not permit juror testimony to impeach the verdict except in matters then, or [n]o the testimony of juror misconduct, and even affidavit shall be received which inquires into the subjective motives or mental processes which led a juror to assent or dissent from the verdict. Nelson, 229 Ariz. 180, 191-92, ¶ 47, 273 P.3d State v. 632, 643-44 (2012); State v. Dickens, 187 Ariz. 1, 15, 926 P.2d 468, 482 (1996); Ariz. R. Crim. P. 24.1(d). ¶16 On this record, the trial court could reasonably find the curative instruction requested by Gukeisen was sufficient to remedy any possible juror confusion caused by the prosecutor s rebuttal argument regarding the alternative defenses. v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, ( Jurors are presumed to follow instructions. ). See State 443 (1996) Accordingly, there was no error by the trial court in denying the motion for new trial. 9 CONCLUSION ¶17 For the foregoing reasons, we affirm Gukeisen s conviction and sentence. /S/____________________________ ANDREW W. GOULD, Judge CONCURRING: /S/_________________________________ MICHAEL J. BROWN, Presiding Judge /S/_________________________________ DONN KESSLER, Judge 10

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