Opinion
No. 1 CA-CR 20-0296
02-18-2021
STATE OF ARIZONA, Appellee, v. ALEXANDER MICHAEL LUBIC, Appellant.
COUNSEL Attorney General's Office, Phoenix By Michelle L. Hogan Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Mikel Steinfeld Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2018-000661-001
The Honorable Frank W. Moskowitz, Judge
AFFIRMED
COUNSEL Attorney General's Office, Phoenix
By Michelle L. Hogan
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Mikel Steinfeld
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Paul J. McMurdie delivered the Court's decision, in which Judge Cynthia J. Bailey and Judge Lawrence F. Winthrop joined. McMURDIE, Judge:
¶1 Alexander Lubic appeals from his conviction and sentence for disorderly conduct. Finding no error, we affirm.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to upholding the verdicts. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).
¶2 The State charged Lubic with two counts of aggravated assault, class 3 dangerous felonies, and one count of misconduct involving body armor, a class 4 dangerous felony.
¶3 In August 2018, Spencer Swann attended a party that continued into the early hours of the morning. Swann was intoxicated but wanted to drive home. To prevent Swann from driving drunk, the other partygoers kept his keys, eventually giving them to the host. Swann grew agitated, refused ride offers, and demanded the keys. The partygoers locked him out of the house without the keys. Swann continued to yell from outside the home, demanding his keys. By one witness's account, Swann said that a friend would come and help him get them.
¶4 Just after 5:00 a.m., Lubic received a call from Swann. Lubic returned the call, and Swann told him that he had been attacked and that his keys and wallet had been stolen. Swann claimed a "cartel" had sold him drugs. Swann sent Lubic a "pin" directing Lubic to Swann's location. Swann also sent text messages to one of the partygoers, Cathy Browne, saying that people were coming in ten minutes and he did not want anyone to get hurt.
To protect the identity of the victim, we use a pseudonym.
¶5 When Lubic arrived, he told Swann to leave with him. But Swann approached the backyard fence, and Lubic took his rifle and followed.
¶6 Browne, who saw Lubic park his vehicle, went to the backyard and warned the others that someone had actually come. Peering over the fence, she saw Lubic, who had a large gun and wearing what she thought was body armor. Browne testified that she again looked over the fence at Lubic after hearing him say that he was police and had come to get Swann's keys. She claimed that Lubic pointed the rifle at her when she peered over the fence and began to count down from ten. She ran back to the host, took the keys, and threw them over the fence. The men retrieved the keys and drove away.
¶7 Lubic's version of the events differed from Browne's. He testified that he strapped the rifle over his chest with the barrel facing down before approaching the fence. He did not recall seeing anyone beyond the fence, but he may have demanded the keys. He did not remember a countdown at the fence but knows he did not perform one. He acknowledged someone threw the keys over the fence a short time after approaching it with his rifle. When Swann retrieved his keys, he and Lubic drove away.
¶8 During Lubic's testimony, he discussed his firearms training and the legality of open and concealed carry in Arizona. After his testimony, jurors submitted questions regarding gun ownership and possession. A juror asked whether Lubic had open and concealed carry permits, and Lubic answered that they were not required in Arizona. The State did not offer contrary evidence.
¶9 Before closing arguments, Lubic asked for a jury instruction on his constitutional right to bear arms in Arizona or a stipulation that it was legal for him to carry a weapon. The court answered that there was evidence in the record that Lubic did not need a license to carry and thus that he could not be charged merely for being present and carrying a weapon.
Lubic argues that the court erred by stating that testimony may have made his instruction superfluous. But cf. Neder v. United States, 527 U.S. 1, 18-20 (1999) (finding harmless error when jury instructions omitted an element of the offense, but the "omitted element is supported by uncontroverted evidence"); State v. Dickinson, 233 Ariz. 527, 530-31, 533, ¶¶ 10-12, 22 (App. 2013) (finding no reversible error where jury instruction misstated an offense's element because defendant failed to show prejudice considering the facts). Because we conclude that the requested instruction was potentially confusing, and thus correctly denied, we do not address this issue further. --------
¶10 During closing arguments, the State argued that when Lubic pointed the rifle at Browne and counted down, he satisfied the elements of aggravated assault. The State argued in the alternative that Lubic committed disorderly conduct by approaching the home while carrying the rifle across his chest and making demands. The State agreed with Lubic that he was not charged with merely possessing a gun but argued he used it in criminal conduct.
¶11 Lubic denied that he committed aggravated assault because he lacked the requisite intent and did not point the gun. He further argued he did not commit disorderly conduct because rather than recklessly handling the firearm, he used his training to carry it safely. He claimed he was legally entitled to have a rifle and committed no crime.
¶12 The jury convicted Lubic of disorderly conduct, a lesser-included offense of aggravated assault. See A.R.S. § 13-2904(A)(6); State v. Angle, 149 Ariz. 478, 479 (1986) (adopting dissenting court of appeals judge's opinion that disorderly conduct by the reckless display of a firearm is a lesser-included offense of aggravated assault). The jury found that the crime involved the threatening exhibition of a deadly weapon or dangerous instrument. See A.R.S. § 13-2904(A)(6). The court sentenced Lubic to a mitigated sentence of 1.5 years' imprisonment with 86 days' presentence incarceration credit.
¶13 Lubic appealed, and we have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶14 Lubic argues that the superior court erred by refusing to give his proposed jury instruction regarding the right to possess a firearm. We review a superior court's refusal to instruct for an abuse of discretion. State v. Wall, 212 Ariz. 1, 3, ¶ 12 (2006). We view the evidence in the light most favorable to the proponent of an instruction. State v. Almeida, 238 Ariz. 77, 79-80, ¶ 9 (App. 2015). A court generally must instruct the jury "on any theory reasonably supported by the evidence," State v. Parker, 231 Ariz. 391, 405, ¶ 54 (2013) (quoting State v. Moody, 208 Ariz. 424, 467, ¶ 197 (2004)), but does not err by refusing to give an instruction that incorrectly states the law, does not fit the facts, or is adequately covered by the other instructions. State v. Hussain, 189 Ariz. 336, 337 (App. 1997). Denial of a requested instruction "is not reversible error unless it is prejudicial to the rights of a defendant and such prejudice appears on the record." State v. Barr, 183 Ariz. 434, 442 (App. 1995). To determine whether prejudicial error occurred, "we may consider the jury instructions as given, the evidence at trial, the parties' theories, and the parties' arguments to the jury." State v. Felix, 237 Ariz. 280, 285, ¶ 16 (App. 2015).
¶15 Lubic argues that his proposed instruction was appropriate for the facts of this case because Article 2, Section 26 of the Arizona Constitution allowed him to carry a weapon as a precaution against possible threats. Specifically, he argues that because he thought the partygoers might have been violent, his interaction with them must have been legal because he was merely protecting himself against possible threats.
¶16 To support this argument, Lubic cites Dano v. Collins, 166 Ariz. 322, 323-24 (App. 1990), and State v. Moerman, 182 Ariz. 255, 261 (App. 1994), both of which note that Arizona law permits the open carrying of firearms. But Dano and Moerman do not apply and do not extend the right to the precautionary carrying of weapons to commit criminal conduct.
¶17 In Dano, our supreme court held that a statute prohibiting the concealed carrying of deadly weapons was constitutionally permissible because it did not frustrate the constitutional purpose of self-defense. 166 Ariz. at 323-24; See A.R.S. § 13-3102(A)(1)-(2). In Moerman, this court reaffirmed the constitutionality of the same statute and rejected an exculpatory statutory construction. 182 Ariz. at 257, 260-61.
¶18 Here, Lubic was convicted of disorderly conduct under A.R.S. § 13-2904(A)(6), which required the jury to find that he recklessly handled, displayed or discharged a deadly weapon with intent to "disturb the peace or quiet of a neighborhood, family or person." It is not a defense that he thought he would be protecting himself from possible threats when engaging in self-help. See A.R.S. § 13-103(A) (all common-law affirmative defenses are abolished).
¶19 The court did not err by refusing to give Lubic's proposed instruction because it did not relate to a charged offense. State v. Collins, 111 Ariz. 303, 304, 306 (1974) (Defendant, who was convicted of armed robbery and felony murder, was not entitled to an instruction regarding the right to own and bear arms under the U.S. Constitution because it did not relate to the theory of the case.). As explained above, A.R.S. § 13-2904 does not regulate Lubic's right to bear arms. Even those who lawfully possess weapons are obligated to conform their conduct to the criminal statutes.
¶20 Here, Lubic's aggravated assault charge turned on whether he intentionally used his rifle to place another person in reasonable apprehension of imminent physical injury. A.R.S. §§ 13-1203(A)(2); see, § 13-1204(A)(2). The jury determined the State failed to prove this charge. However, the jury found Lubic guilty of the lesser-included offense of disorderly conduct by finding Lubic "with the intent to disturb the peace or quiet of a person, or with knowledge of doing so, recklessly handled [or] displayed . . . a deadly weapon."
¶21 Lubic nonetheless argues that he placed his right to bear arms at issue through his opening statement, testimony, and the jury's questions. But the issue was irrelevant as it did not relate to the charged offenses. The State did not dispute Lubic's right to possess the rifle lawfully. The only questions for the jury were how Lubic handled the weapon and his intent. He did not put his right to bear arms at issue by discussing it.
¶22 We presume the jury follows its instructions. State v. Peraza, 239 Ariz. 140, 146, ¶ 23 (App. 2016). In addition to the instructions explaining the crimes' elements, the court instructed the jury that Lubic's mere presence at the scene was not enough to find him guilty, stating that "[o]ne who is merely present is a passive observer who lacked criminal intent and did not participate in the crime." The superior court correctly rejected Lubic's proposed instruction because it could have confused the jury, and legal possession was not an issue before the jurors. State v. Musgrove, 223 Ariz. 164, 167, ¶ 6 (App. 2009) (A court should reject a "proffered jury instruction that misstates the law or has the potential to mislead or confuse the jury.") (quoting State v. Rivera, 177 Ariz. 476, 479 (App. 1994)).
¶23 Lubic argues that he was prejudiced by the court's failure to give the jury his proposed instruction and cites the jurors' questions as evidence that the jury was confused regarding his right to own or possess his rifle. However, the State's argument did not dispute his uncontroverted testimony that he had a legal right to possess the gun. How he used the gun was the only issue before the jury, and by his own account, Lubic drove to the victim's house, slung a rifle across his chest, approached uninvited to a backyard gate, and made demands. Under these facts, the jury could properly conclude that Lubic "displayed" the rifle under A.R.S. § 13-2904(A)(6). We find no error.
CONCLUSION
¶24 We affirm Lubic's conviction and sentence.