State v. Chavez

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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. VICTOR RICHARD CHAVEZ, Appellant. DIVISION ONE FILED: 03/20/2012 RUTH A. WILLINGHAM, CLERK BY: DLL 1 CA-CR 10-0311 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2009-109195-001DT The Honorable Sam J. Myers, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Liza-Jane Capatos, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Karen M. V. Noble, Deputy Public Defender Attorneys for Appellant Phoenix N O R R I S, Judge ¶1 for Victor unlawful Richard flight ( unlawful flight ). from Chavez a timely pursuing appeals law his conviction enforcement vehicle He argues the superior court improperly instructed the jury on the mental state required to commit unlawful flight by equat[ing] willfully to knowingly, rather than instructing the jury it must find he committed the offense intentionally. ¶2 As explained below, we disagree. Although we ordinarily review de novo a claim that a jury instruction misstates the law, because Chavez counsel did not object to the court s instruction or argue the superior court should have given a different instruction, we review for fundamental, prejudicial error. State v. Moody, 208 Ariz. 424, 466, ¶ 189, 94 P.3d 1119, 1161 (2004) (citations omitted); see also State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 19-20, 115 P.3d 601, 607-08 (2005). ¶3 As pertinent here, the charge of unlawful flight requires the State to prove beyond a reasonable doubt that a driver of a motor vehicle wilfully fled or attempted to elude a pursuing official law enforcement vehicle. ( A.R.S. ) § 28-622.01 (2004). Ariz. Rev. Stat. In instructing the jury on the elements of this charge, the superior court used the Revised Arizona Jury Instructions, Title 28 Vehicular Crimes Instruction 28.622.01 (Unlawful Flight From Pursuing Law Enforcement Vehicle), which states, [a]n act was done willfully if it was done knowingly. The court later used the criminal ( Title 13 ) definition of knowingly to explain to the jury 2 code s [k]nowingly means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that the person s conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission. A.R.S. § 13-105(10)(b) (2009). ¶4 As the State points out, the general statutory definition of wilfully -- with respect to conduct or to a circumstance described by a statute defining an offense . . . a person is aware or believes that the person s conduct is of that nature or that the circumstance exists, A.R.S. § 1-215(42) (2006) -- mirrors the definition of knowingly quoted above. ¶5 Despite this, Chavez argues the superior court should have instructed the jury that wilfully, in this context, meant the same thing as the statutory definition of intentionally in A.R.S. conduct § 13-105(10)(a) described by a -- with to a defining statute respect result an offense, or to that a person s objective is to cause that result or to engage in that conduct -- a more specific mental state than knowingly. 1 See A.R.S. § 13-202(C) (2010) (establishing hierarchy of culpable mental states). We disagree. 1 To the extent Chavez argues the court should have used the common meaning of willfully rather than a statutory definition, he still essentially proposes the court should have used a definition equivalent to intentional. In his opening brief, for example, he argues the ordinary definition of willful is an act that is done intentionally. 3 ¶6 First, statutory as definition discussed, of on its wilfully 2 is face, the consistent applicable with the definition of knowingly, and does not match the definition of intentionally. has previously Second, although perhaps in dicta, this court explained in an unlawful flight case, [t]he [general statutory] definition of wilfully . . . is equivalent to the definition of knowingly given in Title 13. State v. Gendron, 166 Ariz. 562, 565, 804 P.2d 95, 98 (App. 1990) vacated in part on other grounds, 168 Ariz. 153, 812 P.2d 626 (1991); see generally Lamb Excavation, Inc. v. Chase Manhattan Mortg. Corp., 208 Ariz. 478, 482, ¶ 15, 95 P.3d 542, 546 (App. 2004) (court may find [dicta] persuasive when viewed in combination with the remainder of the court s analysis ). ¶7 Third, the case on which Chavez relies for his argument that wilfully is the same as intentionally, Shumway v. Farley, 68 Ariz. 159, 203 P.2d 507 (1949), was decided 29 years before Arizona adopted the Model Penal Code s ( MPC ) definitions of culpable mental states in 1978, see State v. Cox, 217 Ariz. 353, 356, ¶ 16, 174 P.3d 265, 268 (2007) (discussing adoption of MPC mental states), and centered around the meaning 2 See A.R.S. § 13-102(D) (2010) ( Except as otherwise expressly provided, or unless the context otherwise requires, the provisions of [Title 13] shall govern the construction of and punishment for any offense defined outside [Title 13]. ). Chapter 3 of Title 28, which includes the crime of unlawful flight, does not define the term wilfully. See A.R.S. § 28601 (2004) (definitions). 4 of wilful statutes. desertion under the then-governing adoption Shumway did not compare culpable mental states in the criminal context, nor did it address the meaning of knowingly, and it has no application to Chavez criminal case. ¶8 Further, Chavez argument that the use of the term wilfully in the unlawful flight statute pre-dated Arizona s adoption of the MPC s culpable mental states and did not change afterwards does not acknowledge wilfully itself has changed. that the definition of See generally State v. Mikels, 118 Ariz. 495, 497, 578 P.2d 174, 176 (1978) (discussing prior general statutory definition of wilfully ); State v. Tarzian, 136 Ariz. 238, 241, Moreover, the A.R.S. 13-102(D) § 665 P.2d Explanation -- 582, given which was 585 (App. regarding adopted 1983) the in (same). enactment 1978 and of makes criminal definitions applicable to offenses outside Title 13 -reflects that [s]ubsection (D) intends to insure that [Title 13], particularly its mens rea [provisions] criminal offenses defined outside Title 13. . . . apply to Rudolph J. Gerber, Criminal Law of Arizona § 13 102, at 3 (1st ed. 1978) (emphasis added). Thus, although the word wilfully in the unlawful flight statute pre-dates Arizona s adoption of the MPC mental states, Chavez reliance on Shumway is misplaced. ¶9 The superior court s instruction, therefore, did not constitute error, much less fundamental, prejudicial error. 5 ¶10 For the foregoing reasons, we affirm Chavez conviction. /s/_____________________________ PATRICIA K. NORRIS, Presiding Judge CONCURRING: /s/_____________________________ MARGARET H. DOWNIE, Judge /s/_____________________________ MAURICE PORTLEY, Judge 6

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