STATE v. ARROYO

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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. ) ) VINCENT ARROYO, JR., ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 10/1/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0689 DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Yuma County Cause No. S1400CR201000313 The Honorable Denise D. Gaumont, Judge Pro Tem (Retired) AFFIRMED Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section Attorneys for Appellee Mary Elizabeth Perez Attorney for Appellant Phoenix San Diego, CA T H O M P S O N, Judge ¶1 Vincent Arroyo, Jr. (defendant) appeals convictions for three counts of aggravated assault. his For the reasons set forth below, we affirm defendant s convictions and sentences. 1 FACTUAL AND PROCEDURAL BACKGROUND ¶2 Defendant was terminated from Associated Packers in Yuma around the end of February 2010. Citrus A week or two later, defendant parked his car alongside Gregorio P. (Greg), the plant superintendant, and told him to tell Barbara H. (Bobbie), the human resources director, and Mark S., an owner of the company, that they were marked for death. Defendant repeated the threat once or twice more before Greg challenged defendant to a fist fight. Before getting out of his car, defendant reached over to the side of the front seat and pulled out [a] machete. Defendant raised the machete up to waist level as he again told Greg to tell Bobbie and Mark that they were marked for death. ¶3 After Greg drove back to the plant and told Bobbie about the threats, her eyes got big and she appeared scared and nervous. Mark instructed Greg to call the police. Officer Ernesto Rangel arrived at the plant and told Greg, Bobbie, and Mark that defendant. he could do anything and could not stop Bobbie announced over the intercom that the plant was on lockdown. 1 not Defendant convictions. She then returned to her office to tell her has not appealed 2 from two attempted murder co-workers, Elizabeth L. and Guadalupe L. (Lupe) about the threats because she was angry that the police couldn t stop defendant. heard As Bobbie was talking with Elizabeth and Lupe, they glass breaking sounded like gunshots. and crashing and banging that Lupe testified that she felt she was in danger and nervous, worried for [her] life. crawled under a desk. noises She got down and Elizabeth saw defendant hitting the door with the machete, and then exclaimed, He s at the door. Run. Elizabeth and Bobbie ran toward the back door; as they ran down a flight of stairs, Bobbie fell and sprained both her ankles. Other employees helped Bobbie up while Elizabeth yelled at Lupe to get out of the office. ¶4 The three women saw defendant drive plant, and Elizabeth went inside to call 911. away from the Soon thereafter, defendant returned and smashed Bobbie s car windows with the machete. Defendant then opened the office door where Elizabeth was calling 911, and with the machete in his hand made a beeline toward Elizabeth. When he was within five feet of Elizabeth he raised up the machete and said I told you not to call the f***ing cops. Elizabeth felt really fearful and ran toward with the back door defendant computer server with the machete. in pursuit hitting a Elizabeth turned the lock and slammed the door as she exited into the yard where Bobbie and Lupe were. As she was telling them to start running because 3 defendant was behind her, defendant busted the back door open. Although Lupe was five months pregnant and Bobbie sprained ankles, all three women started running. had two At one point, Bobbie looked behind her and defendant said, You better f***ing run, and, When I catch up with you I m going to f***ing kill you. felt Lupe heard defendant say, run for your life, and she scared ending. and in danger, and thought [her] life was The three women ran into the sales office to hide from defendant. ¶5 When defendant saw Mark in the yard, he changed directions and began walking directly towards [Mark] at a fast pace, yelling and screaming, and waving hacking motion while pointing at Mark. the machete in a Officer Zaragoza heard defendant say, Do you want to talk s*** about me now, mother f***er? I m going to f***ing kill you. looked frightened. of the perimeter Mark was fearful and Mark was able to escape to the other side fence where several police officers were standing, and defendant continued on to the sales office where he broke the window with the machete, and kicked in the door before entering the office. Elizabeth was standing near the window and had to turn her head to block the shattering glass. Bobbie and Lupe were hidden under a desk, and they heard the window break and the door swing open and footsteps. Bobbie heard the shipping clerk pleading with defendant, Vincent, 4 no. Please, Vincent, no. Police officers were finally able to get into the yard and subdue defendant with tasers. he was taken into custody, defendant continued Even after to scream, saying, I m going to kill them, he wasn t going to let them get away with this, and telling the officers to hurry up [and] take [me] to prison. ¶6 Defendant was charged with four counts of attempted first degree murder, class 2 felonies (Counts 1, 2, 3, and 7), and three counts of aggravated assault, class 3 felonies (Counts 4, 5, and 6). Bobbie was the alleged victim of Counts 1 and 4, Lupe was the alleged victim of Counts 2 and 5, Elizabeth was the alleged victim of Counts 3 and 6, and Mark was the alleged victim of Count 7. ¶7 counsel During opening asserted that statements defendant at trial, threaten[ed] defendant s people, but never had any sort of intent, as demonstrated by his actions, to kill anyone, to even harm anyone, and that he never even touched these women that felt threatened. The subsequently filed a requested jury instruction that stated: In order for the defendant to be found guilty of Aggravated Assault pursuant to A.R.S. 1204(a)(2), 13-1203(a)(2), it is not a necessary element that the victim be in actual substantial risk of imminent death or physical injury. All that is required is that the victim be in reasonable apprehension of physical injury. [R 89] 5 state Defendant The objected trial objection. court because added it the was jury a confusing instruction instruction. over defendant s The jury acquitted defendant of Counts 2 and 3, but found him guilty on the remaining charges, and found Counts 4, 5, and 6 to be dangerous offenses. ¶8 Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), 13-4031 (2010), -4033(A) (2010). DISCUSSION ¶9 Defendant argues that he was denied a fair trial as a result of the state s proposed and final jury instruction on aggravated assault. We review the trial court s decisions on jury instructions for an abuse of discretion. State v. Hurley, 197 Ariz. 400, 402, ¶ 9, 4 P.3d 455, 457 (App. 2000). We review de the novo whether jury instructions adequately state law. State v. Hausner, 230 Ariz. 60, 83, ¶ 107, 280 P.3d 604, 627 (2012). ¶10 Jury instructions must be viewed in their entirety to determine whether they adequately reflect the law. State v. Ovante, 231 Ariz. 180, 188, ¶ 35, 291 P.3d 974, 982 (2013) (citation omitted). We evaluate them in context conjunction with the closing arguments of counsel. and in State v. Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989); 6 see also State v. Valverde, 220 Ariz. 582, 586, ¶ 16, 208 P.3d 233, 237 (2009) ( In assessing the impact of an erroneous instruction, we also consider the attorneys statements to the jury. ). The instructions given need not be faultless, State v. Rutledge, 197 Ariz. 389, 393, ¶ 15, 4 P.3d 444, 448 (App. 2000), and we will not reverse a conviction on the basis of improper instructions unless we can reasonably find that the instructions, when taken as a whole, would mislead the jurors, State v. Strayhand, 184 Ariz. 571, 587, 911 P.2d 577, 593 (App. 1995). ¶11 Defendant 1204(A)(2) (2003), was charged which with provides violating that a A.R.S. person § 13- commits aggravated assault by [i]ntentionally placing another person in reasonable apprehension of imminent 2 physical injury while using a deadly weapon or dangerous instrument. 1203(A)(2) (2003). See A.R.S. § 13- The trial court instructed the jurors on assault and aggravated assault as follows: 2 Although the statute uses the word imminent, the jury instruction used the word immediate, per defendant s request. Webster s dictionary defines imminent as [a]bout to occur at any moment: impending. Webster s II New College Dictionary 553 (1995). Immediate was defined for the jury as not separated in time; acting or happening at once; without delay; instant. The state argues this was a very defense favorable definition that was clear error. In light of our holding, we do not address this argument. However, we recognize that immediate and imminent have distinct definitions and that they are not synonymous. We encourage trial courts to use the statutory language when instructing juries in order to avoid the type of issue raised in this case. 7 The crime of assault requires the proof that the defendant: __. . . . 2. Intentionally put another person in reasonable apprehension of immediate physical injury; The crime of aggravated proof of the following: 1. The assault, and least assault defendant requires committed an 2. The assault was aggravated by at one of the following factors: __. . . . __ The defendant used a deadly weapon or dangerous instrument; __. . . . In order for the Defendant to be found guilty of Aggravated Assault, it is not a necessary element that the victim be in actual substantial risk of imminent death or physical injury. All that is required is that the victim be in reasonable apprehension of physical injury. Defendant argues that the lack of the qualifying term imminent or immediate in the last sentence unnecessarily confused the jurors and ran afoul of controlling Arizona case law. ¶12 The supplemental instruction came from State v. Morgan, 128 Ariz. 362, 367, 625 P.2d 951, 956 (App. 1981), in which this court held that endangerment included offense of aggravated assault. 8 was not a lesser A required element of endangerment is that the victim must be placed in actual substantial risk of imminent death or physical injury, compared to aggravated assault, which requires a person to intentionally place another physical person injury instrument. were many in using reasonable a deadly apprehension weapon or Id. (citations omitted). situations in which an of other imminent dangerous Reasoning that there assault could be committed without placing the victim in actual risk, the court concluded that actual substantial risk of imminent death or physical injury was not an element of aggravated assault, but that the victim must be in reasonable apprehension of physical injury. Id. ¶13 Defendant cites State v. Rineer, 131 Ariz. 147, 639 P.2d 337 (App. 1981), and Appeal of Juvenile Action No. J-785392, 143 Ariz. 254 (1984), inaccurate, confusing, and stated [w]e in to that are argue that the contradictory. complete instruction The agreement Rineer with the court Morgan opinion as it relates to the offense of endangerment. Ariz. at 148, 639 P.2d at 338. was 131 What the Rineer court disagreed with was the Morgan court s holding regarding threatening or intimidating, Juvenile Morgan which Action and No. Rineer, presented here. has no bearing on our discussion. J-78539-2 addressed the and does relate also not conflict to 9 between the 143 Ariz. at 255-56, 693 P.2d at 910-11. Id. issue ¶14 Considered in their adequately stated the law. 15, 4 P.3d at 448. entirety, the jury instructions See Rutledge, 197 Ariz. at 389, ¶ The trial court accurately instructed the jury that in order to convict defendant of aggravated assault, it had to first find that he committed an assault. instructed that an assault requires proof Jurors were that defendant [i]ntentionally put another person in reasonable apprehension of immediate physical injury, and that immediate means not separated in time; acting or happening at once; without delay, instant. We assume that juries follow the instructions they are given. State v. McCurdy, 216 Ariz. 567, 574, ¶ 17, 169 P.3d 931, 938 (App. 2007). ¶15 In addition, defense counsel s arguments to the jury made it clear that it first had to find defendant placed the victims in reasonable apprehension of immediate physical injury. Defense counsel repeatedly emphasized the importance of the word immediate, stating that assault happens when another in apprehension of immediate [] harm. fear that instantly. this injury is going to and immediately, or And that s defined in your jury instruction as not definition jury, puts The person has to come separated in time, without delay, instant. the someone of assault emphasized that from in the order jury for The prosecutor read instructions the jury to to the convict defendant of aggravated assault, it would have to find that he 10 intentionally put another person in reasonable apprehension of immediate physical injury. ¶16 Although the last sentence of the aggravated assault instruction did not include the word immediate, we do not find that this omission negated all the emphasis put on the word in the jury instructions and throughout closing arguments. We cannot reasonably conclude the jurors were confused or misled by the instruction. 593. See Strayhand, 184 Ariz. at 587, 911 P.2d at At most, the omission of immediate in the last sentence would be harmless error. See State v. McKeon, 201 Ariz. 571, 573, ¶ 9, 38 P.3d 1236, 1238 (App. 2002) ( Error is harmless if we can conclude beyond a reasonable doubt that it did not influence the verdict. ). ¶17 Defendant asserts that the erroneous instruction was emphasized by the [s]tate in its rebuttal argument, further exacerbating the prejudicial effect of the instruction. The prosecutor not did state in rebuttal that the statute does require actual touching, but that the victims have to be in reasonable apprehension of injury or death. This was in response to defense counsel s argument that defendant did not touch anyone. Defense counsel reiterated throughout closing argument that defendant never even touched anyone that day, and that if defendant wanted to touch them, he would have. would have been very easy for him to do that. 11 It However, when considered in context, and in light of the jury instructions as a whole and in conjunction with all of the closing arguments, the prosecutor s statement was not prejudicial. we hold that the jury instructions adequately Consequently, set forth the elements of aggravated assault and that the trial court did not abuse its discretion. ¶18 Defendant also argues that there was insufficient evidence that he committed aggravated assault upon Lupe. We review de novo the trial court s denial of a motion for judgment of acquittal. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). On a motion for a judgment of acquittal the relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. State v. Parker, 231 Ariz. 391, ¶ 70, 296 P.3d 54, 70 (2013) (emphasis omitted) (citation omitted). the record elements of contains the substantial offense then acquittal must be denied. evidence the See id. motion establishing for If the judgment of Substantial evidence is such proof that reasonable persons could accept as adequate and sufficient to support beyond a reasonable doubt. a conclusion of defendant s guilt West, 226 Ariz. at 562, ¶ 16, 250 P.3d at 1191 (citation omitted). 12 ¶19 To prove defendant committed aggravated assault upon Lupe, the state was required to establish that he intentionally placed her in reasonable apprehension of imminent physical injury while using a deadly weapon or dangerous instrument. A.R.S. §§ 13-1203(A)(2), -1204(A)(2). did not have the specific See Defendant asserts that he intention of placing Lupe in apprehension, and that the requisite intent cannot be presumed from the act of chasing Bobbie and Elizabeth. [A]bsent a person s outright admission regarding his state of mind, his mental state must necessarily be ascertained by inference from all relevant surrounding circumstances. In re William G., 192 Ariz. 208, 213, 963 P.2d 287, 292 (App. 1997); see also State v. Routhier, 137 Ariz. 90, 99, 669 P.2d 68, 77 (1983) ( Criminal intent, being evidence. a state of mind, is shown by circumstantial Defendant s conduct and comments are evidence of his state of mind. ). ¶20 defendant Here, the followed evidence Elizabeth presented out the at door trial into showed the yard that and pursued Elizabeth, Bobbie, and Lupe who were running from him in fear for their lives. Defendant chased them while holding a machete and yelling out threats to kill. Lupe testified that she felt she was in danger and was being chased. Lupe heard defendant say, Run for your life, and she felt scared and thought [her] life was ending. 13 Although Lupe was not one of defendant s initial targets when he first arrived at the plant, the jurors could reasonably find that defendant saw Lupe and was aware that she was running from him in fear for her life. Even if defendant only intended to break windows with the machete, he intended to act in a manner that would place the women in reasonable apprehension of imminent physical injury that would cause them to flee for their lives. See Juvenile Action No. J- 78539-2, 143 Ariz. at 256, 693 P.2d at 911 (shooting out the tires of an officer s vehicle was an act intended to place the officer in reasonable apprehension of imminent physical injury in order to make him stop the car ). Whether defendant had the specific intention of placing Lupe, in addition to Elizabeth and Bobbie, in reasonable apprehension of imminent physical injury was a question evidence. for the jury, and we will not reweigh the See State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997). ¶21 evidence. Therefore, we conclude the state presented sufficient Accordingly, the trial court did not err in denying the motion for a judgment of acquittal. 14 CONCLUSION ¶22 For the foregoing reasons, we affirm convictions and sentences. /s/ JON W. THOMPSON, Judge CONCURRING: /s/ MICHAEL J. BROWN, Presiding Judge /s/ MARGARET H. DOWNIE, Judge 15 defendant s

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