No. 2 CA-CR 2013-0319
Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By David A. Sullivan, Assistant Attorney General, Tucson Counsel for Appellee Lori J. Lefferts, Pima County Public Defender By Erin K. Sutherland, Assistant Public Defender, 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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Howard Hantman, Judge
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By David A. Sullivan, Assistant Attorney General, Tucson
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By Erin K. Sutherland, Assistant Public Defender, Tucson
Counsel for Appellant
Chief Judge Eckerstrom authored the decision of the Court, in which Judge Kelly and Judge Espinosa concurred. ECKERSTROM, Chief Judge:
¶1 Following a jury trial, appellant Patrick White was convicted of disorderly conduct and resisting arrest. The trial court suspended the imposition of sentence and placed him on concurrent, three-year terms of probation. For the first time on appeal, White argues his resisting arrest charge was duplicitous and his conviction on that count should be reversed. We affirm for the reasons that follow.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to upholding the verdicts. See State v. Fontes, 195 Ariz. 229, ¶ 2, 986 P.2d 897, 898 (App. 1998). On May 12, 2012, two peace officers from the Pima County Sheriff's Department, D. and V., went to White's residence to investigate a possible domestic disturbance. After speaking with White and his mother, the officers separately informed them they would be arrested for crimes of domestic violence. White initially complied and sat outside the residence, putting on his shoes; his mother, who was inside, became agitated and resisted D.'s efforts to place her in handcuffs.
We refer to all peace officers from the sheriff's department as "officers" in this decision, regardless of their designations within the department.
¶3 As Officer V. started to go into the house to offer assistance, White attempted to stand up, ignoring V.'s commands to sit down. White said his arrest was "wrong" and that "he was going to kick [V.'s] ass." The officer performed a "[t]ake down" maneuver that caused White to fall on a pool deck and lacerate his face. White then kicked V. in the leg.
¶4 After placing White in handcuffs, Officer V. ran into the house to help Officer D. in his struggle with White's mother. When V. returned outside, he discovered White attempting to get into a kneeling position. Because White did not respond to V.'s commands to stop moving, V. held him on the pool deck and waited for other officers to arrive. V. testified White was "trying to get control" during this time by "moving his head to kind of push himself up off the ground."
¶5 Officer T. arrived to find Officer V. beside White on the ground outside the house. White was screaming and yelling. As V. and T. escorted him to a patrol car, White squirmed and "tr[ied] to make it difficult" by lifting and kicking both his feet, thereby forcing the officers to carry him. During this process, White kicked off the shorts he was wearing and said, "I can kick your guys' ass."
¶6 White was charged with one count of aggravated assault against Officer V., A.R.S. § 13-1204(A)(8), and one count of resisting arrest. A.R.S. § 13-2508(A). In defense, he argued V.'s account of the incident was not credible because V. was attempting to cover up his own excessive and unjustifiable use of force. White also suggested his own behavior was justified and did not amount to resisting arrest because, even though he admittedly had been "mouthing off," he had only "used words[,] and words do not warrant this kind of abuse." The jury acquitted White of aggravated assault but found him guilty of the lesser-included offense of disorderly conduct. The jury also returned a general verdict form finding White guilty of resisting arrest. This timely appeal followed the judgment and disposition.
Unless otherwise noted, we cite the version of § 13-2508 in effect at the time of the offense, which provided:
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:1980 Ariz. Sess. Laws, ch. 229, § 27.
1. Using or threatening to use physical force against the peace officer or another; or
2. Using any other means creating a substantial risk of causing physical injury to the peace officer or another.
White does not raise any issue related to this conviction, and we therefore do not address it.
¶7 Although White filed a pretrial motion alleging his aggravated assault charge was duplicitous, he never argued below that his resisting arrest charge was duplicitous, nor did he seek any curative measures for it. We therefore review the issue only for fundamental error. See State v. Payne, 233 Ariz. 484, ¶ 80, 314 P.3d 1239, 1262-63 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1518 (2014); State v. Dann, 220 Ariz. 351, ¶ 76, 207 P.3d 604, 619-20 (2009). To prevail under this standard, White carries the burden of showing an error occurred, the error was fundamental, and it resulted in prejudice. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). Duplicity is a question of law that we review de novo. See State v. Ramsey, 211 Ariz. 529, ¶ 5, 124 P.3d 756, 759 (App. 2005).
¶8 A duplicitous charge exists "[w]hen the text of an indictment refers only to one criminal act, but multiple alleged criminal acts are introduced to prove the charge." State v. Klokic, 219 Ariz. 241, ¶ 12, 196 P.3d 844, 847 (App. 2008); accord State v. Paredes-Solano, 223 Ariz. 284, ¶ 4, 222 P.3d 900, 903 (App. 2009). We have recognized that a duplicitous charge is an error of a fundamental nature and that a defendant can show prejudice "by demonstrating that the jury may have reached a nonunanimous verdict." State v. Delgado, 232 Ariz. 182, ¶ 19, 303 P.3d 76, 82 (App. 2013).
¶9 White claims the resisting arrest charge here was duplicitous because the state presented evidence of distinct acts of resistance against different officers at different times. He reasons that this evidence established "separate offenses" based on either the existence of multiple victims or separate periods of "successful restraint and/or submission" representing fully effectuated arrests. And he contends the evidence of these separate offenses created the real possibility of a nonunanimous verdict, given that he offered separate defenses—self-defense and a lack of officer credibility—that applied differently to the various officers' testimony. The state maintains the charge was not duplicitous because there was only one arrest and one offense of resisting arrest. We agree with the state.
¶10 Evidence of multiple acts creates no duplicity problem when the acts "'form part of one and the same transaction, and as a whole constitute but one and the same offense.'" State v. Solano, 187 Ariz. 512, 520, 930 P.2d 1315, 1323 (App. 1996), quoting State v. Counterman, 8 Ariz. App. 526, 531, 448 P.2d 96, 101 (1968). Section 13-2508(A) prohibits someone from "resisting arrest" by attempting to prevent a peace officer "from effecting an arrest." This statutory language "entail[s] a process or transaction." State v. Mitchell, 204 Ariz. 216, ¶ 17, 62 P.3d 616, 619 (App. 2003). Effecting an arrest is an ongoing process rather than a discrete event with a readily identifiable beginning and end. See id. ¶¶ 12, 15; see also State v. Stroud, 209 Ariz. 410, ¶ 10, 103 P.3d 912, 915 (2005); State v. Flores, 227 Ariz. 509, n.1, 260 P.3d 309, 312 n.1 (App. 2011). This means an arrest is not necessarily effected or completed when a defendant is placed in handcuffs. See Mitchell, 204 Ariz. 216, ¶ 13, 62 P.3d at 618. And a person's multiple acts of resistance during a single, ongoing arrest constitute "separate acts that . . . are part of a single criminal transaction." Klokic, 219 Ariz. 241, ¶ 15, 196 P.3d at 847.
¶11 As noted, White characterizes the evidence here as establishing multiple arrests. But there is no bright-line rule for when an arrest has been completed. Mitchell, 204 Ariz. 216, ¶ 18, 62 P.3d at 619. That question is one to be resolved by the factfinder. See Stroud, 209 Ariz. 410, ¶ 14, 103 P.3d at 915. We therefore will not conclude an arrest was completed, as a matter of law, if there is evidence upon which a rational jury could find that the defendant had not submitted or been successfully restrained. See Mitchell, 204 Ariz. 216, ¶¶ 14, 17-18, 62 P.3d at 618, 619. Here, given that White offered resistance at every point at which the officers attempted to control him, the record contained sufficient evidence for the jury to determine that White had not been successfully or effectively restrained until he was secured in the police vehicle. See id. ¶¶ 15, 18. Thus, the charge was not duplicitous on a theory of multiple arrests.
¶12 We likewise reject White's claim that there were separate offenses here because he resisted two officers. Our precedents upholding convictions under § 13-2508 invariably involve evidence of separate acts of resistance or endangerment offered to support a single count of resisting arrest, even against multiple officers. Yet White has cited no Arizona case, and we have found none, suggesting either that separate charges under § 13-2508 are appropriate in such circumstances or that a duplicity problem arises from such evidence. This fact is significant given that fundamental error review was mandated by statute until 1996, see State v. Smith, 184 Ariz. 456, 459, 910 P.2d 1, 4 (1996), and our appellate courts continue to remedy fundamental error sua sponte when we find it warranted. See State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007). Our case law therefore militates against White's novel assignment of error.
See, e.g., State v. Zavala, 136 Ariz. 356, 357-58, 666 P.2d 456, 457-58 (1983) (defendant ripped uniform of one officer, resisted removal from vehicle, resisted placement in patrol car once handcuffed, kicked two officers, repeatedly spat on officer, and broke police scanner); State v. Cagle, 228 Ariz. 374, ¶¶ 1-4, 266 P.3d 1070, 1071 (App. 2011) (defendant pulled arm away from officer, resisted removal from vehicle, resisted handcuffing on ground, and endangered two officers near oncoming traffic); Flores, 227 Ariz. 509, ¶¶ 2, 8-10, 260 P.3d at 311-12 (defendant broke away from officers, swung at them, and yelled and struggled during removal from house, causing minor injuries to both officers); State v. Barker, 227 Ariz. 89, ¶¶ 1, 3, 253 P.3d 286, 286, 287 (App. 2011) (defendant pulled away repeatedly, disabled Taser, attempted to tackle one officer, and struggled with others); State v. Lee, 217 Ariz. 514, ¶¶ 3, 11, 176 P.3d 712, 713, 714-15 (App. 2008) (defendant jerked away from officer, struggled to avoid handcuffs, and kicked legs after being handcuffed); In re Jessi W., 214 Ariz. 334, ¶¶ 4, 24, 152 P.3d 1217, 1218-19, 1221-22 (App. 2007) (defendant pulled away from officer repeatedly, attempted to swing at him, and refused to comply with commands on ground); Mitchell, 204 Ariz. 216, ¶¶ 5, 18 & n.1, 62 P.3d at 617, 619 & n.1 (defendant "froze up" before being handcuffed and violently struggled thereafter); Fontes, 195 Ariz. 229, ¶¶ 3, 12, 986 P.2d at 898-99, 901 (defendant forced store manager away, hit and threatened sheriff's deputy before being handcuffed, and threatened and pulled away from deputy thereafter); State v. Henry, 191 Ariz. 283, 284, 285, 955 P.2d 39, 40, 41 (App. 1997) (defendant forcibly resisted handcuffing and urged crowd to act against officer); State v. Barr, 183 Ariz. 434, 437, 439, 904 P.2d 1258, 1261, 1263 (App. 1995) (defendant moved hands, held telephone, locked arms, jerked body, and kicked one of three officers); State v. Harney, 128 Ariz. 355, 355, 356, 624 P.2d 944, 944, 945 (App. 1981) (defendant assumed "boxing stance," jabbed at officer, obstructed his movement, and continued forcible resistance when other officer provided assistance).
¶13 But even looking to the legislature's intent to determine the appropriate unit of prosecution under § 13-2508, see State v. Burdick, 211 Ariz. 583, ¶ 5, 125 P.3d 1039, 1041 (App. 2010), we find no clear intent to proliferate charges and convictions based on the number of officers involved in an arrest. The text of the statute plainly indicates that it serves dual purposes. We have recognized that a peace officer who is resisted during an arrest is a victim of the offense, State v. Sorkhabi, 202 Ariz. 450, ¶ 9, 46 P.3d 1071, 1073 (App. 2002), and that § 13-2508 is partly intended to promote officer and public safety. See Mitchell, 204 Ariz. 216, ¶ 16, 62 P.3d at 619; State v. Womack, 174 Ariz. 108, 111, 847 P.2d 609, 612 (App. 1992). But the statute also criminalizes mere threats of physical force, § 13-2508(A)(1), it requires resistance against a person "acting under color of . . . official authority," § 13-2508(A), and now, as amended, it prohibits even "passive resistance" to an arrest. 2012 Ariz. Sess. Laws, ch. 265, § 1. Thus, the crime is fundamentally an offense against state authority, as it is under the common law; and this suggests the unit of prosecution is not determined by the number of victims. See Purnell v. State, 827 A.2d 68, 80 (Md. 2003); see also State v. Le Noble, 216 Ariz. 180, ¶ 16, 164 P.3d 686, 689 (App. 2007) (noting Arizona historically recognized common law crime of resisting arrest). "The gravamen of the statute is the theory that the court, not the street, is the proper place to test the legality of arrest." 1 Rudolph J. Gerber, Criminal Law of Arizona 2508-2 through 2508-3 (2d ed. 1993 & Supp. 2000).
¶14 This essential feature of resisting lawful authority distinguishes the crime of resisting arrest from general prohibitions against assault, see A.R.S. § 13-1203, and endangerment. See A.R.S. § 13-1201; see also Calloway v. Tucson City Court, 129 Ariz. 456, 458, 632 P.2d 266, 268 (App. 1981) (resisting arrest "a separate and distinct offense" from assault on officer, for purposes of court's jurisdiction); cf. Territory v. Duffield, 1 Ariz. 58, 62-63, 25 P. 476, 476-77 (1872) (assault and resistance of sheriff "wholly dissimilar" offenses because latter "is a crime against the public justice of the country"). Accordingly, arrestees may be separately charged and convicted for their various assaults committed while resisting arrest, e.g., State v. Zavala, 136 Ariz. 356, 357-58, 666 P.2d 456, 457-58 (1983); Fontes, 195 Ariz. 229, ¶¶ 1, 12, 986 P.2d at 898, 901, as well as any additional acts of endangerment. Cf. State v. Hill, 11 Ariz. App. 230, 232-33, 463 P.2d 125, 127-28 (1969) (recognizing, under predecessor statute, defendant could be convicted of separate offenses not supporting conviction for resisting arrest). But when there is only one ongoing arrest, the number of officers who are resisted does not determine the number of offenses under § 13-2508. Cf. State v. Good, 851 S.W.2d 1, 6 (Mo. Ct. App. 1992) ("[T]he gist of the offense is the resistance by the defendant and not the number of officers involved.").
¶15 To the extent the legislature ever intended to create separate offenses for separate victims, this intention has long remained obscure to prosecutors and courts. We have recognized that if ambiguity exists as to the intended unit of prosecution, then "'the construction will be against turning a single transaction into multiple offenses.'" State v. Manzanedo, 210 Ariz. 292, ¶ 10, 110 P.3d 1026, 1028-29 (App. 2005), quoting State v. Arndt, 553 P.2d 1328, 1334 (Wash. 1976); accord Ladner v. United States, 358 U.S. 169, 178 (1958) ("'When Congress leaves to the Judiciary the task of imputing to Congress an undeclared will, the ambiguity should be resolved in favor of lenity.'"), quoting Bell v. United States, 349 U.S. 81, 83 (1955). "Defining criminal behavior and establishing penalties for violating criminal laws are functions of the legislature, not the judiciary." Womack, 174 Ariz. at 112, 847 P.2d at 613. We therefore decline to find separate offenses here. If the legislature wishes to allow separate charges for separate victims under § 13-2508, it may easily say so in plain, unambiguous terms.
¶16 In sum, the record indicates that White's separate acts of resistance were committed in the course of a single, ongoing arrest and merely represented the manner in which he committed a single offense under § 13-2508(A). "Although a defendant is entitled to a unanimous jury verdict on whether the criminal act charged has been committed, the defendant is not entitled to a unanimous verdict on the precise manner in which the act was committed." State v. Encinas, 132 Ariz. 493, 496, 647 P.2d 624, 627 (1982) (citation omitted). Because White was properly charged with and convicted of a single count of resisting arrest on May 12, 2012, we reject his related claims that the grand jury testimony was somehow deficient and that he received inadequate notice to prepare a defense. See State v. Eastlack, 180 Ariz. 243, 258, 883 P.2d 999, 1014 (1994) ("Defendant is entitled to notice of the crimes with which he may be convicted, not the manner in which the state will prove his guilt."); State v. Baumann, 125 Ariz. 404, 408-09, 610 P.2d 38, 42-43 (1980) (noting grand jury does not conduct "minitrial" but rather determines whether probable cause exists to believe defendant committed crime).
¶17 Because White has not established fundamental, prejudicial error on the record before us, we affirm his convictions and terms of probation.