Opinion
No. 2 CA-CR 2019-0096
11-27-2019
THE STATE OF ARIZONA, Appellee, v. STYRON MICHAEL DAVENPORT, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Julian Francis, Assistant Attorney General, Phoenix Counsel for Appellee Rosemary Gordon Pánuco, Tucson Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pinal County
No. S1100CR201701611
The Honorable Patrick K. Gard, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Julian Francis, Assistant Attorney General, Phoenix
Counsel for Appellee Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Vásquez authored the decision of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred. VÁSQUEZ, Chief Judge:
¶1 After a jury trial, Styron Davenport was convicted of possession of marijuana, possession of drug paraphernalia, and resisting arrest. The trial court sentenced him to concurrent prison terms of 1.5 years for each count. On appeal, Davenport argues the court erred in denying his motion to suppress because the deputies lacked reasonable suspicion to stop him and probable cause to arrest him. He also contends there was insufficient evidence to support his conviction for resisting arrest. For the reasons stated below, we affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding Davenport's convictions. See State v. Allen, 235 Ariz. 72, ¶ 2 (App. 2014). One evening in May 2017, Pinal County Sheriff's Deputies Rusty Fernando and Mark Terry, who were in full uniform, were involved in a "saturation detail"—or an "additional police presence in common thoroughfares"—in Casa Grande. They were completing a separate stop when they observed Davenport walk across a five-lane street at a forty-five-degree angle while "[t]here were a lot of vehicles going both north and south."
¶3 Fernando "U-turn[ed]" their marked police vehicle and activated the emergency lights, and upon stopping Terry approached Davenport on foot. Terry asked Davenport to remove his hands from his pockets, which he did, but, as soon as Terry asked Davenport whether he had any weapons, Davenport immediately put his hands back into his pockets. Fearing that Davenport was reaching for a weapon, Terry grabbed his left arm and wrist. According to Terry, as Davenport "tried to pull away . . . and run," Fernando grabbed Davenport's right arm. Both deputies instructed Davenport to stop resisting and to take his hands out of his pockets, but Davenport continued to struggle.
¶4 Less than a minute later, as Davenport was making a fist with his left hand, the deputies' sergeant struck Davenport in the stomach area. Davenport bent over at the waist, and the deputies were able to force him to the ground. Despite the deputies' repeated commands to stop struggling, Davenport continued to resist and refused to remove his hands from his pockets. Fernando struck Davenport multiple times on the head before his arms relaxed, and Terry was able to handcuff him. According to Terry, however, Davenport "tensed back up" and "started fighting . . . some more." Fernando then saw a baggie with a green leafy substance in Davenport's right hand. They suspected the substance was marijuana, removed it from his hand, and took him to their police vehicle. Fernando told Davenport that he had been stopped for jaywalking, and Davenport responded that he "knew the reason for the stop" and that he was "stupid for fighting law enforcement." Subsequent testing confirmed the substance was marijuana.
¶5 Davenport was indicted for possession of marijuana, possession of drug paraphernalia, and resisting arrest. He was convicted as charged and sentenced as described above. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
Motion to Suppress
¶6 Davenport argues the trial court erred in denying his motion to suppress because the deputies lacked reasonable suspicion to stop him and probable cause to arrest him. "In reviewing a motion to suppress, we consider only the evidence presented at the suppression hearing and view it in the light most favorable to upholding the trial court's factual findings." State v. Fornof, 218 Ariz. 74, ¶ 8 (App. 2008). We review for an abuse of discretion a ruling on a motion to suppress. State v. Crowley, 202 Ariz. 80, ¶ 7 (App. 2002). However, we review de novo legal issues, including whether reasonable suspicion or probable cause existed. State v. Sweeny, 224 Ariz. 107, ¶ 12 (App. 2010); State v. Aleman, 210 Ariz. 232, ¶ 15 (App. 2005).
¶7 The Fourth Amendment prohibits unreasonable searches and seizures. U.S. Const. amend. IV, XIV; see State v. Gilstrap, 235 Ariz. 296, ¶ 7 (2014). An arrest must be based on probable cause. State v. Morris, 246 Ariz. 154, ¶ 9 (App. 2019) (describing probable cause to arrest as "belie[f] that an offense has been committed and the person to be arrested is the offender"). However, "a police officer may make a limited investigatory stop . . . if the officer has an articulable, reasonable suspicion, based on the totality of the circumstances, that the suspect is involved in criminal activity." State v. Teagle, 217 Ariz. 17, ¶ 20 (App. 2007). For example, "an officer who has witnessed a traffic violation may initiate a stop." State v. Kjolsrud, 239 Ariz. 319, ¶ 9 (App. 2016).
¶8 The deputies stopped Davenport for jaywalking, which is a traffic violation. See Bergmann Precision, Inc. v. Indus. Comm'n, 199 Ariz. 164, ¶ 17 (App. 2000) (failure to use crosswalk is violation of traffic law). Section 28-793, A.R.S., provides as follows:
A. A pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles on the roadway.A crosswalk is "[t]hat part of a roadway at an intersection included within the prolongations or connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in absence of curbs, from the edges of the traversable roadway." A.R.S. § 28-601(3)(a).
B. A pedestrian crossing a roadway at a point where a pedestrian tunnel or overhead pedestrian crossing has been provided shall yield the right-of-way to all vehicles on the roadway.
C. Between adjacent intersections at which traffic control signals are in operation, pedestrians shall not cross at any place except in a marked crosswalk.
Section 28-601(3)(b) also provides that a crosswalk is "[a]ny portion of a roadway at an intersection or elsewhere that is distinctly indicated for pedestrian crossing by lines or other markings on the surface." However, there were no pedestrian markings here, and Davenport does not suggest this section applies.
¶9 Before trial, Davenport filed a motion to suppress "all evidence obtained either directly or indirectly as a result of [his] unlawful arrest." He argued the deputies had "illegally stopped [him]" because he did not violate § 28-793(A), which he maintained is the only subsection that could apply here. Relying on the definition of crosswalk in § 28-601(3)(a), he contended that he crossed the street at a "legal unmarked crosswalk." Davenport also asserted he was "unlawfully arrested" because the deputies lacked probable cause that he had committed an offense. In response, the state argued the motion should be denied because the deputies had "specific and articulable facts justifying an investigative stop" based on their observations of Davenport crossing the street. The state also pointed out, "It is enough that the [deputies] suspect[ed] a violation"—an actual violation was not required. And regarding the arrest, the state argued that the deputies "were lawfully permitted to gain control of [Davenport]" when he "continually resisted orders to keep [his] hands away from his pockets and put them behind his back."
¶10 After a suppression hearing, the trial court denied the motion. The court agreed with Davenport that subsections (B) and (C) of § 28-793 did not apply. Focusing on subsection (A), the court determined that Davenport had "crossed at a 45 degree angle" and "was not in the normal width of a crosswalk area." The court noted that Davenport "had to stop in the middle of an intersection to allow traffic northbound to proceed," which was not "yield[ing] the right-of-way before entering the crosswalk." Additionally, the court agreed with the state that the deputies were allowed to stop Davenport "for mere reasonable suspicion that he may have violated [§ 28-793] whether it's their mistake or not," although it noted that they could not have "arrest[ed] him for it." And the court reasoned, because the deputies had believed Davenport was jaywalking, they could stop him, and, once Davenport put his hands in his pockets, the deputies acted for officer safety and saw the marijuana as a result of that struggle. The court therefore concluded it was a "lawful arrest."
¶11 As he did below, Davenport argues the deputies lacked reasonable suspicion to stop him because he did not violate the jaywalking statute. He asserts there are "unmarked crosswalks" in the area and, "from where . . . they were sitting," the deputies "really couldn't see if Davenport was near or in one of [those] crosswalks." He also contends that he "didn't interfere with the traffic and the cars didn't have to slow down." Davenport additionally argues that the deputies lacked probable cause to arrest him, reasoning that "[e]ven if the officers were arresting him for resisting arrest, that resistance was triggered by the unlawful investigatory stop."
¶12 The state concedes on appeal that § 28-793(A) is the relevant subsection in this case. It contends, however, that if Davenport was crossing the street "at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection," he was required to "yield the right-of-way to all vehicles on the roadway." The parties seem to agree that Davenport was not using a "marked crosswalk." § 28-793(A). And contrary to Davenport's assertion, the evidence presented at the suppression hearing established that he had not been crossing "within an unmarked crosswalk at an intersection." Id.; see Fornof, 218 Ariz. 74, ¶ 8. As stated above, an unmarked crosswalk at an intersection is located "within the prolongations or connections of the lateral lines of the sidewalks on opposite sides of the highway measured from the curbs or, in absence of curbs, from the edges of the traversable roadway." § 28-601(3)(a). In this case, however, according to the deputies, Davenport crossed the street at a forty-five-degree angle outside of the unmarked crosswalk.
¶13 Davenport was required to yield the right-of-way to traffic before walking in the roadway. See § 28-793(A). Again, however, the evidence presented at the suppression hearing established that he did not do so. See Fornof, 218 Ariz. 74, ¶ 8. Davenport crossed two lanes of traffic, stopped in the center lane, and then crossed two more. While stopped, he blocked other vehicles from using the center lane. There was "[e]xtremely heavy" traffic at the time, and, according to Terry, "[i]f [Davenport] wouldn't have stopped in the middle of the road, he would have been hit by a car." Accordingly, the deputies had reasonable suspicion to conduct an investigatory stop because they suspected Davenport of violating § 28-793(A). See Teagle, 217 Ariz. 17, ¶ 20.
¶14 Moreover, when Davenport placed his hands back in his pockets after being told to remove them and refused to follow commands during the investigatory stop, the deputies were justified in restraining him for officer safety. See Rodriguez v. United States, ___ U.S. ___, ___, 135 S. Ct. 1609, 1614 (2015) ("Like a Terry stop, the tolerable duration of police inquiries in the traffic-stop context is determined by the seizure's 'mission'—to address the traffic violation that warranted the stop and attend to related safety concerns."). And when the deputies observed what appeared to be a small bag of marijuana in Davenport's hand, they had probable cause to arrest him. See Morris, 246 Ariz. 154, ¶ 9. The trial court therefore did not abuse its discretion in denying the motion to suppress. See Sweeny, 224 Ariz. 107, ¶ 12; Crowley, 202 Ariz. 80, ¶ 7.
Sufficiency of the Evidence
¶15 Davenport also argues the state failed to present sufficient evidence supporting his conviction for resisting arrest. We review de novo the sufficiency of the evidence. State v. Snider, 233 Ariz. 243, ¶ 4 (App. 2013). "[T]he 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. West, 226 Ariz. 559, ¶ 16 (2011) (quoting State v. Mathers, 165 Ariz. 64, 66 (1990)). We will reverse only if no substantial evidence supports the conviction. State v. Rivera, 226 Ariz. 325, ¶ 3 (App. 2011). "Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." Id. (quoting State v. Spears, 184 Ariz. 277, 290 (1996)). Substantial evidence may be direct or circumstantial. State v. Pena, 209 Ariz. 503, ¶ 7 (App. 2005).
¶16 Pursuant to A.R.S. § 13-2508(A),
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:For subsection (3), "'passive resistance' means a nonviolent physical act or failure to act that is intended to impede, hinder or delay the effecting of an arrest." § 13-2508(C).
1. Using or threatening to use physical force against the peace officer or another.
2. Using any other means creating a substantial risk of causing physical injury to the peace officer or another.
3. Engaging in passive resistance.
¶17 Davenport was charged with violating § 13-2508(A)(2). However, he argues that the evidence presented at trial does not support his conviction under that subsection because he did not act "in a way that created a substantial risk of causing physical injury to the officers." He points out that he "didn't swing at anyone," he "didn't kick anyone," and Terry "described Davenport's behavior as passive resistance."
Although the parties apparently agree on appeal that § 13-2508(A)(2) applies, the jury instructions also included language pursuant to § 13-2508(A)(1). The state did not, however, present evidence that Davenport had used or threatened to use physical force. But Davenport neither objected to the instruction below, nor raised this issue on appeal. Accordingly, we deem it waived and do not address it further. See State v. Larson, 222 Ariz. 341, ¶ 23 (App. 2009). --------
¶18 "[W]hen physical force is not used, [§] 13-2508(A)(2) requires that a substantial risk of causing physical injury to the peace officer or another be present before an action constitutes resisting arrest." State v. Lee, 217 Ariz. 514, ¶ 13 (App. 2008). Substantial risk of physical injury does not require substantial danger to the officer, see id., but only a substantial risk of "impairment of physical condition," A.R.S. § 13-105(33); see State v. Cagle, 228 Ariz. 374, ¶¶ 3-4, 17-18 (App. 2011) (defendant convicted of resisting arrest based on creating substantial risk of causing physical injury to officers by laying in road on stomach with arms under body to prevent officers from handcuffing him, while cars drove past); State v. Henry, 191 Ariz. 283, 284-85 (App. 1997) (defendant convicted of resisting arrest based on creating substantial risk of causing physical injury when arresting officer was struck with bottle after defendant shouted for help from crowd of intervening bystanders).
¶19 At trial, Fernando testified that, during the arrest, it had been "getting dark [outside]" and "there was a lot of traffic." He further explained that Davenport had stood in a "defensive posture," meaning he was "pulling away and tensing up." Fernando recounted that Davenport had refused to comply with his commands to stop resisting "easily over ten times," even after the deputies' sergeant had struck him in the stomach. He also testified that Davenport had continued to resist after he turned onto his stomach holding his hands and knees underneath his chest. Terry explained that Davenport had only "stopped fighting" after he was struck in the head multiple times by Fernando. Fernando also testified that after Davenport had been handcuffed, Davenport admitted that he was "stupid for fighting law enforcement."
¶20 Although Davenport did not "swing" or "kick" at the deputies, as Davenport points out, Davenport's refusal to adhere to the deputies' commands coupled with his physical resistance, which he described as "fighting law enforcement," amounted to resisting arrest, see Lee, 217 Ariz. 514, ¶ 13, because his conduct resulted in him having to be taken to the ground by three deputies, at night, near a busy street, which the jury reasonably could have concluded created a substantial risk of physical impairment, cf. Cagle, 228 Ariz. 374, ¶¶ 3-4. Accordingly, the state presented sufficient evidence to support Davenport's conviction for resisting arrest. See Snider, 233 Ariz. 243, ¶ 4.
Disposition
¶21 For the reasons stated above, we affirm Davenport's convictions and sentences.