Opinion
No. 2 CA-CR 2019-0246
01-27-2021
THE STATE OF ARIZONA, Appellee, v. PAUL ELLIOT IRVIN, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee Joel Feinman, 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NOT FOR PUBLICATION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)(1); Ariz. R. Crim. P. 31.19(e). Appeal from the Superior Court in Pima County
No. CR20182109001
The Honorable James E. Marner, Judge
AFFIRMED IN PART; VACATED IN PART
COUNSEL Mark Brnovich, Arizona Attorney General
Linley Wilson, Deputy Solicitor General/Section Chief of Criminal
Appeals
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee Joel Feinman, Pima County Public Defender
By Erin K. Sutherland, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Judge Brearcliffe authored the decision of the Court, in which Presiding Judge Eppich and Chief Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 Paul Irvin appeals from his convictions after a jury trial for two counts of aggravated assault with a deadly weapon, one count of resisting arrest, and one count of unlawfully discharging a firearm in the city limits. The trial court sentenced him to aggravated concurrent terms, totaling twenty-five years. On appeal, Irvin contends: (1) the state presented insufficient evidence of aggravated assault against Officer Rabert ; (2) his constitutional rights were denied when the state presented evidence of a second offense of resisting arrest, which had not been presented to the grand jury; (3) it was fundamental, prejudicial error for the state to introduce other-act evidence against him; and (4) the aggravated sentence should be vacated and remanded for resentencing because the jury did not find a statutory aggravator. We affirm in part and vacate in part.
Factual and Procedural Background
¶2 We review the facts in the light most favorable to upholding the convictions and sentences. State v. Robles, 213 Ariz. 268, ¶ 2 (App. 2006). On May 14, 2018, at approximately 3 a.m., Police Officers Powell and Rabert were patrolling the area around Tucson Boulevard and Grant Road. The officers noticed a black Chevrolet dually pickup truck missing one of its four rear tires and began following it. When they ran the license plate on the truck, the officers determined the vehicle registration had expired in 2016, so they initiated a traffic stop.
¶3 The truck turned onto another street, and stopped in front of a business. Officers Powell and Rabert got out of their car and approached the truck, with Powell going to the driver side, and Rabert going to the passenger side. Powell asked the driver, Irvin, for identification and, when he did not have that, he asked for Irvin's name and date of birth. Irvin told Powell his last name was "Erving," and the birthdate Irvin provided was one day off from Irvin's actual birthdate. While Powell went to the patrol car to run a records check on the driver, Rabert stayed near the truck. When Powell ran the records check, no records came up under the name "Erving," but the registered owner of the truck was listed as "Paul Irvin." The records showed that Irvin's driver license was suspended. Powell also noted that the license plate on the truck had a 2018 registration sticker, which did not match the plates.
¶4 When he returned to the truck, Officer Powell asked Irvin to step out of the car. Irvin got out of the truck, but began running down the street. Officer Rabert stayed at the truck, partially behind the driver side door, while Powell chased Irvin. As Powell chased Irvin, he saw Irvin's right hand go toward his waistband. Irvin fired a weapon behind him, toward Powell and Rabert. Powell then shot at Irvin and, "[a]t about the same time, [Irvin] fired another shot at [Powell]." Powell then fired at Irvin a second time.
¶5 Several detectives from various units within the Tucson Police Department were called out to the location of the shooting. Detectives spent most of the day searching for Irvin. Later that evening, Irvin was seen in the area of 29th Street and Alvernon Way. A team of U.S. Marshals in an unmarked van pulled up next to the bus stop where Irvin was sitting to arrest him, but when Irvin saw them getting out of the van, he began running northbound. Special Agent Klomp, who was in an unmarked truck, began driving southbound on the sidewalk toward Irvin when he saw him start running. As the U.S. Marshals were chasing Irvin, Irvin reached his right hand toward his waistband. Klomp then heard someone yell "gun," at which point he turned his car to the right and hit Irvin. When Irvin was hit by the truck, a gun fell out of his right hand. Irvin was then arrested.
¶6 Irvin was indicted on two counts of aggravated assault with a deadly weapon, one count of possession of a deadly weapon by a prohibited possessor, one count of resisting arrest, one count of unlawfully discharging a firearm in the city limits, and one count of driving with a suspended license. The state voluntarily dismissed the charge for driving with a suspended license before trial. After a bifurcated trial, with the prohibited possessor charge presented later, the jury found Irvin guilty of the remaining charges. The trial court sentenced him as described above, after Irvin admitted to being on pretrial release when the incident occurred. This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Analysis
Sufficient Evidence of Aggravated Assault
¶7 On appeal, Irvin first argues that "the state failed to present sufficient evidence of an aggravated assault against Officer Rabert." Sufficiency of the evidence is a question of law we review de novo, State v. Felix, 237 Ariz. 280, ¶ 30 (App. 2015), and we will reverse "only if no substantial evidence supports the conviction," State v. Fimbres, 222 Ariz. 293, ¶ 4 (App. 2009) (quoting State v. Pena, 209 Ariz. 503, ¶ 7 (App. 2005)). While viewing the evidence in the light most favorable to upholding the conviction, Robles, 213 Ariz. 268, ¶ 2, we must ask whether "any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt," State v. Butler, 230 Ariz. 465, ¶ 9 (App. 2012) (quoting State v. West, 226 Ariz. 559, ¶ 16 (2011)). "[W]e [will] not weigh the evidence; that is the function of the jury." State v. Williams, 209 Ariz. 228, ¶ 6 (App. 2004). If reasonable minds could differ on the inferences drawn from the facts, the evidence will be deemed sufficient to uphold the conviction. Butler, 230 Ariz. 465, ¶ 9.
¶8 Under A.R.S. § 13-1203(A)(2), an individual commits assault by "[i]ntentionally placing another person in reasonable apprehension of imminent physical injury." At the close of the state's case below, Irvin moved for a judgment of acquittal which was denied. Irvin then renewed the motion at the close of the defense's case, and the trial court denied it again. Irvin now argues the state only provided evidence that Officer Rabert feared for his safety after viewing his body camera footage from the incident and hearing a ricochet near him. Additionally, Irvin claims Rabert's testimony demonstrated that he did not fear for his own safety. Consequently, he asserts, the state did not establish Rabert was in apprehension of imminent physical injury at the time of the shooting. We agree that there was insufficient evidence to support the "reasonable apprehension" element of the aggravated assault conviction as to Rabert.
¶9 To satisfy the element of apprehension of imminent physical injury "[t]here is no requirement that the victim testify to actual fright." State v. Wood, 180 Ariz. 53, 66 (1994). Circumstantial evidence is sufficient to prove the element of apprehension. Id. Officer Rabert testified to hearing shots fired while he was beside the suspect's truck; his body camera footage showed him to be partially concealed by the driver side door at the time the shots were fired. Rabert's body camera footage then showed him running toward Powell after several shots were fired, while he called in the shooting. Nothing in the body camera footage, however, demonstrates that Rabert was apprehensive at the time of the shooting.
¶10 Although Officer Rabert remained behind the truck door while four shots were fired, he had moved to that position before any shot had been fired. Moreover, he left that place of limited protection and ran toward the shooting before it was known or apparent that the shooting had ceased. Rabert testified that he could not tell who was shooting because he lost sight of Irvin, and he could not tell if Irvin had pointed his gun at him or at Powell. He further testified that he had not heard the bullets ricochet near him until he reviewed his body camera footage.
¶11 In light of Rabert's testimony and the consistent body camera footage, there was no basis for a rational jury to find that Rabert was placed in reasonable apprehension of physical injury. Therefore, the state presented insufficient evidence to support this conviction, and the trial court erred in denying Irvin's motion for judgment of acquittal on count two of the indictment and entering a conviction and imposing sentence for the same.
Duplicitous Charge
¶12 On appeal, Irvin also claims that the resisting arrest charge was duplicitous. Because Irvin did not raise this issue below, we review for fundamental error. See State v. Payne, 233 Ariz. 484, ¶ 80 (2013) (standard of review is for fundamental error when defendant failed to raise issue of duplicitous charges below). A duplicitous charge constitutes fundamental error and requires the conviction to be reversed if the defendant shows he was prejudiced by the error. State v. Waller, 235 Ariz. 479, ¶ 34 (App. 2014). Duplicitousness exists when multiple alleged criminal acts are introduced to prove the single criminal act in the indictment. State v. Klokic, 219 Ariz. 241, ¶ 12 (App. 2008). If evidence of multiple criminal acts is presented, where evidence of each discrete act could prove a single charge, the prosecution must elect which of the defendant's acts it is relying on for a conviction; not doing so results in a duplicitous charge and a risk that the jury will return a nonunanimous verdict. State v. Davis, 206 Ariz. 377, ¶ 61 (2003).
¶13 Irvin specifically claims the resisting arrest charge was duplicitous because, at trial, the state presented evidence of both Irvin's traffic stop and subsequent flight, as well as of his ultimate arrest and attempted flight. This, Irvin argues, posed a "real possibility of a non-unanimous jury verdict." We conclude that the state did make the required election, there was no impermissible duplicity, and there was no risk of a nonunanimous verdict. Although the state presented evidence of Irvin's conduct at the time of the traffic stop by Officer Powell as well as his conduct at the time of his ultimate arrest by the U.S. Marshals, in its closing, the state clearly told the jury that the resisting arrest charge stemmed from the traffic stop. In the state's closing discussing this charge, the prosecutor told the jury that "[they] have the testimony of Officer Powell . . . to consider" and that "[Irvin] knew he was going to be placed under arrest and he acted and used force to avoid that arrest." The state also argued "[Irvin] committed these aggravated assaults because he knew that Officer Powell was seeking to arrest him." Because Powell was not involved in and was not present at Irvin's ultimate apprehension, the jury could not have been reasonably confused that the resisting arrest charge related to his subsequent actual arrest.
¶14 Additionally, the trial court instructed the jury on the elements of resisting arrest. The court instructed that resisting arrest requires finding that Irvin used or threatened to use "physical force or any other substantial risk of physical injury to either the peace officer or another." See A.R.S. § 13-2508. The only incident as to which any force or substantial risk of injury occurred was the initial traffic stop and shooting involving Officers Powell and Rabert. Because the state clearly based its case for resisting arrest on the events surrounding the traffic stop as to which the jury was properly instructed, there was no duplicitousness and there was no risk of a nonunanimous jury verdict.
Although Irvin was also armed at the time of his ultimate arrest, there was no evidence that he drew a gun on the officers or otherwise threatened them with one. Irvin also argues that the events surrounding his ultimate arrest were not presented to the grand jury. But, because we conclude that the events related to the 3 a.m. traffic stop were the basis for the resisting arrest charge, and because those events were brought to the grand jury, we find no error.
Other Act Evidence
¶15 Irvin also claims on appeal that "the State presented a significant amount of other act evidence which was both irrelevant and highly prejudicial." Because this issue was not argued at the trial court, we review only for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005). To meet this burden, Irvin must show that "(1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice." State v. Smith, 219 Ariz. 132, ¶ 21 (2008). The error has caused prejudice if, "absent error, a reasonable jury could have reached a different result." State v. Martin, 225 Ariz. 162, ¶ 14 (App. 2010).
¶16 Irvin claims that many of the details of the traffic stop and the testimony regarding his arrest constitute "improper bad act evidence." Irvin claims that the details of the expired vehicle registration, the mismatched registration tag and license plate, the false name and birthdate Irvin provided, and Irvin's suspended driver license were all improperly admitted at trial. Specifically, he claims these details of the traffic stop were highly prejudicial evidence and "[t]he only possible kernel of relevance to any of this evidence would be to explain the reason Powell may have been seeking to detain [Irvin]." And, similarly, Irvin argues that the testimony describing his arrest was irrelevant and prejudicial, and that the only relevant evidence was testimony regarding the handgun and gloves found near Irvin at the scene of his arrest.
¶17 We need not address Irvin's claim of error here, because overwhelming evidence of Irvin's guilt belies any claim of prejudice. See Martin, 225 Ariz. 162, ¶ 15 (no prejudice shown because other evidence supported defendant's conviction). Given the other evidence presented, we conclude that, without the other act evidence, a reasonable jury would have reached the same result. See id. ¶ 14. Aggravated Sentence
Because we conclude that the aggravated assault conviction as to Officer Rabert was unsupported by the evidence, we analyze the aggravated sentence only as to the remaining convictions.
¶18 Finally, Irvin argues that his aggravated sentences on each count were erroneously imposed "because the jury never found the existence of a statutorily enumerated aggravator." As a consequence, he asserts, his sentence should not exceed the presumptive term, plus two years for the on-release allegation. The trial court determined that the jury had found that Irvin threatened his victims with infliction of serious physical injury. The state argues the trial court was correct. Because Irvin did not raise this argument below, we will only review for fundamental, prejudicial error. Henderson, 210 Ariz. 561, ¶¶ 19-20. "[A]n illegal sentence constitutes fundamental, prejudicial error." State v. McPherson, 228 Ariz. 557, ¶ 4 (App. 2012).
Below, the state gave notice of its proposed use of Irvin's prior felony convictions as statutory aggravators. On appeal, Irvin argues that neither of the prior felony convictions proved by the state qualified as such. The state does not contest that point on appeal. --------
¶19 The United States Supreme Court has held that any fact, other than a prior conviction, which increases the penalty beyond "the prescribed statutory maximum" must be found by the jury beyond a reasonable doubt. Apprendi v. New Jersey, 530 U.S. 466, 490 (2000). Arizona's non-capital sentencing scheme establishes a range of sentences: mitigated, minimum, presumptive, maximum, and aggravated. See A.R.S. § 13-701; see also State v. Martinez, 210 Ariz. 578, ¶ 21 (2005). For purposes of Apprendi, the "statutory maximum" sentence is the presumptive sentence. State v. Brown, 209 Ariz. 200, ¶ 12 (2004). Consequently, under Apprendi, if an Arizona sentencing court is to deviate upward from the presumptive sentence, the jury must find the existence of circumstances—"aggravating circumstances"—beyond a reasonable doubt. § 13-701(C); see also Brown, 209 Ariz. 200, ¶ 12.
¶20 In addition to the fact of a prior felony conviction that the court may find, § 13-701(D) identifies twenty-five enumerated circumstances that a jury may find beyond a reasonable doubt to have existed and, if found, a court may consider in determining whether to impose an aggravated sentence. Once the jury finds one enumerated aggravating circumstance (or the court finds a prior felony conviction) the defendant is "eligible for an aggravated sentence," Martinez, 210 Ariz. 578, ¶ 5, and, as relevant here, the court may then, under § 13-701(D)(27), consider "[a]ny other factor that the state alleges is relevant to the defendant's character or background or to the nature or circumstances of the crime." This is commonly referred to as the "catch-all" provision. See State v. Dunbar, 249 Ariz. 37, ¶ 41 (App. 2020).
¶21 Here, the trial court imposed somewhat aggravated sentences for each crime because the jury found that Irvin threatened Officer Powell with the "infliction of serious physical injury," and that Powell was a police officer assaulted while performing his official duties. The court expressly determined that each was a "statutory aggravator." Irvin argues that the fact that Powell was a police officer and assaulted while performing his official duties is not a statutory aggravating circumstance. He further argues that the only statutory aggravating circumstance related to offenses against police officers is in § 13-701(D)(25) and the jury made no findings that that aggravator existed. While the state concedes that the court properly considered the victim's status only under the catch-all provision, and not under the enumerated statutory aggravators, it argues that the jury did find that Irvin threatened Powell with infliction of serious physical injury.
¶22 Unless such "circumstance is an essential element of the offense . . . or has been utilized to enhance the range of punishment under § 13-704," to lead to an aggravated sentence, a jury may find that the defendant "[i]nflict[ed] or threatened infliction of serious physical injury" § 13-701(D)(1). Here, the jury found Irvin guilty of aggravated assault of Officer Powell, which required the jury to find that Irvin: (1) "[i]ntentionally plac[ed] another person in reasonable apprehension of imminent physical injury," A.R.S. § 13-1203(A)(2), and (2) used "a deadly weapon or dangerous instrument," A.R.S. § 13-1204(A)(2). While using a deadly weapon or dangerous instrument and placing another in fear of "imminent physical injury" are essential elements of such an offense, § 13-1203(A)(2), infliction or threatened infliction of serious physical injury is not an essential element. See State v. Molina, 211 Ariz. 130, ¶ 10 (App. 2005). Consequently, the jury was free to make such a finding as an aggravating circumstance.
¶23 Irvin argues that the jury made no such finding. He points to the interrogatories incorporated into the verdict form for the aggravated assault charge as the only other express findings made by the jury apart from the findings of guilt themselves. In the form, the jury was asked to, and did, find that the aggravated assault offense "involved the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument." Irvin argues that this finding is not the finding required by § 13-701(D)(1), and, given the absence of any other statutory aggravating circumstance, an aggravated sentence was improper. For its part, the state, without further explanation, asserts that the aggravated assault verdict forms amount to just such a finding of "threatened infliction of serious physical injury." Although unclear, the state appears to be arguing that the jury verdict found a threatened infliction of serious physical injury by implication.
¶24 We agree with Irvin that the jury was not asked to, nor did it, make an express finding that Irvin threatened Officer Powell with infliction of serious physical injury. Although juries are most often asked to make express findings of such an aggravating factor, a jury may find an aggravating factor either expressly—that is, explicitly—or implicitly. See Martinez, 210 Ariz. 578, ¶ 21. To determine if an aggravating factor was implicitly found by the jury, we may consider the elements of the other crimes of which the defendant was convicted. See id. ¶ 27 & n.6 (verdict of first-degree murder on one count demonstrates implicit finding of infliction of serious physical injury).
¶25 The jury found beyond a reasonable doubt in count one and in its interrogatory responses that Irvin committed aggravated assault against Officer Powell—that is, placed him in reasonable apprehension of imminent physical injury—by "the discharge, use or threatening exhibition of a deadly weapon or dangerous instrument," as alleged in the indictment, "to wit: FIREARM." §§ 13-1203(A)(2), 13-1204(A)(2). A firearm is, statutorily, a "deadly weapon" "designed for lethal use." A.R.S. § 13-105(15). The jury further found beyond a reasonable doubt in count four that Irvin discharged that firearm. Consequently, the jury found that Irvin did more than merely place Powell in reasonable apprehension of imminent physical injury by a threatening exhibition of a firearm. Rather, when its findings and verdicts are read together, the jury implicitly determined that Irvin placed Powell in reasonable apprehension of imminent physical injury by discharging a firearm—a thing designed to cause death—thus threatening him with the infliction of serious physical injury. See Martinez, 210 Ariz. 578, n.6 (injury that results in death falls within definition of serious physical injury).
¶26 We conclude that the jury's verdicts and express findings constitute an implicit finding beyond a reasonable doubt of the "threatened infliction of serious physical injury"—a statutory aggravating factor under § 13-701(D)(1). Because the jury found a statutory aggravator, the trial court was permitted to consider any other aggravator under § 13-701(D) or other relevant circumstance shown by a preponderance of the evidence. See Dunbar, 249 Ariz. 37, ¶ 41. Therefore, the court did not err in imposing the aggravated sentence.
Disposition
¶27 For the foregoing reasons, we vacate Irvin's conviction and sentence for aggravated assault on count two as to Officer Rabert, but affirm Irvin's remaining convictions and sentence.