State v. Sterkeson

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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. JOHNATHON ALLEN STERKESON, Appellant. DIVISION ONE FILED: 03/11/2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0058 DEPARTMENT A MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2007-156796-001-DT The Honorable Steven P. Lynch, Judge Pro Tempore AFFIRMED Terry Goddard, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Craig W. Soland, Assistant Attorney General Attorneys for Appellee Phoenix The Ferragut Law Firm, P.C. By Ulises A. Ferragut, Jr. Attorneys for Appellant Phoenix D O W N I E, Judge ¶1 Johnathon Allen Sterkeson ( Defendant ) appeals from his convictions for aggravated assault and unlawful discharge of a firearm. He contends the jury was insufficiently instructed regarding self-defense, and he challenges various evidentiary rulings. For the reasons that follow, we affirm. FACTS AND PROCEDURAL HISTORY1 ¶2 Defendant and his girlfriend, J.C., ended their relationship, and Defendant was in the process of moving from their shared apartment. During the evening of August 29, 2007, J.C. went to the apartment, though she and her more recent love interest, victim J.H., planned to get together later that night. ¶3 At telephone, one when point, J.H. and J.C. Defendant took the phone, taunted and threatened each other. were and speaking he and by J.H. Around 4:00 a.m. on August 30, J.H. arrived at the apartment and found J.C. and Defendant in the parking lot. A struggle ensued, with the two men wrestling, rolling around, and trying to punch each other. Defendant bit J.H. J.H. sucker-punched Defendant in the face; Defendant threw a large rock at J.H. s vehicle. ¶4 During the final phase of the skirmish, when J.C. and J.H. believed the fighting had ceased, and J.H. was walking away, Defendant began taunting J.H. Defendant retrieved a J.H. came toward Defendant. semi-automatic 1 assault rifle from his We view the facts in the light most favorable to sustaining the verdicts and resolve all inferences against Defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). 2 locked truck and pointed the weapon at J.H. J.C. grabbed the gun s barrel, pointed it to her chest, and told Defendant if he was going to shoot J.H., he would have to shoot her first. J.H. approached Defendant for J.C. s safety. J.H. also thought it would be safer to be near Defendant, rather than some distance away, where Defendant could aim and fire the rifle. Defendant and J.H. struggled for control of the weapon. As J.H. pushed J.C. out of the way, Defendant pointed the gun at J.H., who ducked Defendant and turned. fired another away--right away, but Defendant shot that shot because shot J.H. [J.H.] missed. in the started J.H. ran back. running a short distance and collapsed, bleeding profusely. ¶5 J.H. survived the shooting, but suffered injuries and was hospitalized for twenty days. interview with police, Defendant admitted serious In a videotaped shooting J.H., but claimed he did so in self-defense. ¶6 class The State charged Defendant with aggravated assault, a three dangerous felony, and firearm, a class six dangerous felony. court instructed the jury Defendant guilty as charged. on unlawful discharge of a Trial commenced, and the self-defense. The jury found The court sentenced Defendant to a mitigated term of five years imprisonment for the aggravated assault, to be served concurrently with one-and-a-half years imprisonment for unlawful discharge of a firearm. 3 ¶7 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 (2001), and -4033(A)(1) (Supp. 2008). DISCUSSION 1. ¶8 Self-Defense Instructions Defendant instructing the contends jury on the trial self-defense court without erred giving in further instruction about the meaning of unlawful force or deadly force. 2 Specifically, Defendant contends the court should have instructed the jury on the elements of endangerment, threatening or intimidation, and aggravated assault--crimes J.H. purportedly committed and against which Defendant was defending himself. ¶9 As Defendant concedes, we review only for fundamental error because the defense did not request these instructions at 2 In follows: relevant part, the court instructed the A defendant is justified in using or threatening physical force in self-defense if the following two conditions existed: 1. A reasonable person in the situation would have believed that physical force was immediately necessary to protect against another s use or apparent attempted or threatened use of unlawful physical force[.] 2. . . . A defendant may use deadly physical force in self-defense only to protect against another s use or apparent attempted or threatened use of deadly physical force. 4 jury as trial. 627 See State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, (1991) (when a defendant fails to request a jury instruction, we review the failure to give the instruction for fundamental error only). error review, Defendant To obtain relief under fundamental has the burden of establishing that error occurred, the error was fundamental, and he was prejudiced thereby. See State v. Henderson, 210 Ariz. 561, 567-68, ¶¶ 20- 22, 115 P.3d 601, 607-08 (2005). Fundamental error is error that goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial. P.3d at 608. Id. at 568, ¶ 24, 115 To show prejudice, Defendant must demonstrate that, absent the error, a reasonable jury could have reached a different result. ¶10 See id. at 569, ¶ 27, 115 P.3d at 609. The purpose of instructions is to inform the jury of the applicable law. State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996) (citation omitted). Instructions need not be faultless, but they must not mislead the jury, and they must give the jury an understanding of the issues. (citation omitted). See id. Only when the instructions, taken as a whole, are such that it is reasonable to suppose the jury was misled will we reverse for error in the instructions. Schrock, 149 Ariz. 433, 440, 719 P.2d 1049, 1056 (1986). 5 State v. ¶11 We agree with the State that the unrequested instructions shed no light on the key issue before the jury, i.e., how [Defendant] was possibly justified in using deadly force. Defendant did not claim, and there was no evidence that J.H. used or attempted to use deadly physical force during the altercation. See A.R.S. § 13-405 (a person is justified in using deadly physical force against another only when and to the degree physical a force reasonable is person immediately would necessary believe to that protect deadly himself against the other s use or attempted use of unlawful deadly physical force. ) (2001). ¶12 Defendant s reliance on State v. Fish, 222 Ariz. 109, 213 P.3d 258 (App. 2009), is unavailing. Fish was hiking in a remote wooded area when the victim s two barking and growling dogs ran toward him. Id. at 112-13, ¶ 2, 213 P.3d at 261-62. Fish fired a warning shot into the ground to disperse the dogs, and the victim responded by yelling threats while running at Fish with his eyes crossed and looking crazy and enraged . . . . Id. at 113, ¶¶ 2-3, 213 P.3d at 262. Fish shot and killed the victim. he acted in self-defense, second degree murder. ¶13 but Fearing for his life, Id. at ¶ 3. the jury Fish argued that found him guilty of Id. at 113-14, ¶ 5, 213 P.3d at 262-63. On appeal, we held the trial court should have granted Fish s request to instruct the jury that, for purposes of self- 6 defense, the term unlawful physical force included the statutory elements of endangerment, threatening or intimidating, and aggravated assault. Id. at 129, ¶ 66, 213 P.3d at 278. We found the requested instructions were supported by the evidence and stated: The jury could have concluded that the Victim s advances toward [Fish] did not rise to the level of unlawful conduct, not realizing that the Victim could have committed an aggravated assault Defendant. ¶14 without ever making contact with the Id. Fish is not controlling here, where it is undisputed J.H. and Defendant physically fought with each other. Unlike in Fish, where there was no physical contact between the victim and the defendant, the instructions here could not be interpreted in a manner evidence. causing the jury to disregard the self-defense Additionally, Fish engaged in harmless error review because the defense requested the missing instructions. 126-30, ¶¶ 55-68, 213 P.3d at 275-79. Id. at Thus, it was the State s burden to show that the instructions did not affect the verdict. Id. at 279, ¶ 68, 213 P.3d at 279. Defendant bears the burden of proof. In the case at bar, As we have already noted, there was no evidence J.H. used or threatened to use deadly force against Defendant. Additionally, Defendant neither characterized J.H. s conduct as the crimes of threatening or intimidating and aggravated assault nor argued he was defending 7 himself against aggravated assault. established the requisite prejudice. an instruction [J.H.] would defining have been crimes helpful Nor has Defendant He merely speculates that potentially to the jury attributable to to an determine element of the offense. ¶15 We failure suggests. to find sua no fundamental sponte instruct error the in the trial court s jury as Defendant now See also State v. Barraza, 209 Ariz. 441, 104 P.3d 172 (App. 2005) (rejecting contention that the failure to define unlawful physical force constituted fundamental error). 2. ¶16 Evidence of Alcohol and Drug Use Defendant sought to admit evidence that, at the time J.H. received emergency treatment for shooting-related injuries, his blood alcohol concentration was .082, and blood tests showed the presence This evidence Defendant testify. the of benzodiazepines, was contained expected J.H. s in opiates, J.H. s treating and medical physician cannabinoids. records, to and similarly In a pretrial ruling, the court precluded admission of medical records, but allowed Defendant to question about any alcohol and drug usage the night of the shooting.3 J.H. The court further ruled that, if J.H. s testimony contradicted his 3 The court also ruled that Defendant could testify he smelled alcohol on J.H. s breath, and it allowed him to question the police officers and trauma surgeon about smelling alcohol. 8 medical records, the records would be admissible for impeachment under Arizona Rule of Evidence 608(b). ¶17 We review the trial court s evidentiary ruling for an abuse of discretion. State v. McGill, 213 Ariz. 147, 156, ¶ 40, 140 P.3d 930, 939 (2006); State v. Sucharew, 205 Ariz. 16, 21, ¶ 9, 66 P.3d 59, 64 (App. 2003). As a preliminary matter, we note that, although J.H. s medical records were apparently redacted in an attempt to comply with the court s order, they nevertheless specifically disclose that, at 5:30 a.m. on August 30, 2007, J.H. s blood alcohol concentration was 82 MG/DL. same page of the exhibit includes a NOTE about The ALCOHOL TOXICITY LEVELS, stating, >80 MG/DL LEGAL TOXICATION LEVEL IN ARIZONA. Thus, evidence of J.H. s alcohol concentration was before the jury. ¶18 We also find no abuse of discretion in the ruling regarding J.H. s presented with benzodiazepines purported medical and drug records opiates, it use. Had reflecting could several treated J.H. drugs were the have presence was due to illicit use by J.H. reflects the administered jury been presence concluded of their However, the record by paramedics who As J.H. testified, On the scene I was treated with morphine, and the tranquilizer did knock me out. J.H. s trauma surgeon confirmed that paramedics gave J.H. medication to help him relax and to chemically paralyze him to put in a 9 breathing tube. With respect to the presence of cannabinoids, the medical records did not indicate when J.H. may have ingested marijuana.4 ¶19 Finally, the trial court specifically authorized Defendant to cross-examine J.H. and his surgeon about any drug usage. The defense did not avail itself of this opportunity. ¶20 We find no error in the court s orders. Confrontation Clause arguments are without Defendant s merit. The Confrontation Clause is generally satisfied by the opportunity to cross-examine. Delaware v. Fensterer, 474 U.S. 15, (1985); United States v. Owens, 484 U.S. 554, 559 (1988). 22 This line of cases survives the decision in Crawford v. Washington, 541 U.S. 36, 68 (2004). P.3d 805 (App. 2007). See State v. Real, 214 Ariz. 232, 150 The alcohol-related evidence was before the jury, and Defendant was provided an adequate opportunity to explore whether the victim was under the influence of drugs. 3. ¶21 J.H. s Presence During Argument J.H. regarding was present admissibility of in the the courtroom drug and during alcohol Defense counsel sought J.H. s exclusion, stating: argument evidence. I don t want [J.H.] listening to what s going on here and I have some things that I need to say without his being here. 4 In response, the As the State pointed out, marijuana stays in your system for a very long time, up to 30 days. 10 State noted the victim rights statute is pretty clear, the victim can be in the courtroom at every proceeding. The court declined to remove J.H. from the courtroom. ¶22 Defendant cannot override, criminal contends supersede, defendant s federal a victim s limit, presence afforded him to hinder, or constitutional trial, due process, and confrontation. J.H. s right the rights be present impair to a a fair According to Defendant, opportunity to manipulate, control, and limit the jury s exposure to evidence . . . [of J.H. s alcohol use]. ¶23 If J.H. had been excused from the courtroom, nothing prevented the State from explaining to him the court s in limine ruling relating to his testimony. Moreover, even assuming the trial court erred, the error would be harmless as a matter of law. See State v. Moody, 208 Ariz. 424, 457, ¶ 132, 94 P.3d 1119, 1152 (2004) (holding that an error is harmless if the appellate court can say, beyond a reasonable doubt, that the error did not contribute to or affect the guilty verdict). J.H. admitted drinking a couple of beers, and the admitted medical records included his blood alcohol concentration, along with a notation that it was greater than the legal toxication level in Arizona. 11 4. Text Messages Regarding Drug Usage ¶24 In his opening brief, Defendant challenged the preclusion of certain text messages, notwithstanding the fact he agreed below that such evidence was inadmissible. In his reply brief, Defendant withdraws this claim for purposes of direct appeal. We thus do not address it. 5. ¶25 J.H. s Statements to Third Parties Defendant next challenges a ruling that precluded him from asking J.H. whether shooting incident. he had spoken to anyone about the Defendant does not cite supporting authority or relevant portions of the record in support of this claim. We thus P. decline to address it. See Ariz. R. Crim. 31.13(c)(1)(vi); Carver, 160 Ariz. at 175, 771 P.2d at 1390; Moody, 208 Ariz. at 452 n.9, ¶ 101, 94 P.3d at 1147 n.9; State v. Jaeger, 973 P.2d 404, ¶ 31 (Utah 1999) ( [T]his court is not a depository in which the appealing party may dump the burden of argument and research. ) (citation omitted). ¶26 We Defendant also does cannot not now, properly address this and not trial, did substance of the precluded testimony. we cannot determine whether error whether Defendant was prejudiced. at issue because explain the Absent an offer of proof, occurred, and if it did, See Ariz. R. Evid. 103(a)(2) (error may not be predicated on ruling excluding evidence unless substance of evidence shown by offer of proof or apparent from 12 context); State v. Towery, 186 Ariz. 168, 179, 920 P.2d 290, 301 (1996) ( [The] proponent of the precluded evidence must . . . make the offer determine of whether proof the so that trial the judge reviewing erred can precluding in court the evidence. ) (citations omitted). 6. Defendant s Medical Records ¶27 Again without citing authority or the record, Defendant argues the trial court should have admitted unredacted copies of his medical records. The record reflects that seventeen pages of Defendant s medical records were admitted as exhibit 120, two lines of which were redacted. shows Defendant moved for admission of The record also exhibit Consequently, Defendant invited any purported error. 120. See State v. Logan, 200 Ariz. 564, 565-66, ¶ 9, 30 P.3d 631, 632-33 (2001) ( If an error is invited, we do not consider whether the alleged error is fundamental, for doing so would run counter to the purposes of the invited error doctrine. Instead, as we repeatedly have held, we will not find reversible error when the party complaining of it invited the error. ) (citation omitted); State v. Lucero, 223 Ariz. 129, 138, 258 (App. 2009) ( [I]f the party ¶ 31, 220 P.3d 249, complaining on appeal affirmatively and independently initiated the error, he should be barred from raising the error on appeal. ). 13 Nothing in the record establishes what information was redacted from medical records, and Defendant made no offer of proof. CONCLUSION ¶28 Defendant s convictions and sentences are affirmed. /s/ MARGARET H. DOWNIE, Judge CONCURRING: /s/ MAURICE PORTLEY, Presiding Judge /s/ LAWRENCE F. WINTHROP, Judge 14 the

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