Opinion
No. 2 CA-CR 2017-0368
03-22-2019
THE STATE OF ARIZONA, Appellee, v. SAMUEL MIRANDA QUIMIRO, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Diane Leigh Hunt, 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NOT FOR PUBLICATION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. CR20164313001
The Honorable Kenneth Lee, Judge
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Diane Leigh Hunt, 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 Staring and Judge Vásquez concurred. BREARCLIFFE, Judge:
¶1 Samuel Quimiro appeals from his jury convictions for aggravated assault with a deadly weapon or dangerous instrument and aggravated assault causing serious physical injury. The trial court sentenced him to a presumptive term of 7.5 years in prison, followed by a five-year probation term. We affirm.
Issues
¶2 On appeal, Quimiro contends the trial court erred by denying his request for a jury instruction on the crime-prevention justification afforded by A.R.S. § 13-411, because his acts were justified to prevent the crime of felony kidnapping by custodial interference in violation of A.R.S. § 13-1302(A)(1), (E)(1) and A.R.S. § 13-1304(A)(3). He further argues that such error was also either fundamental or structural. The state contends the request is "untimely" and should be "precluded," and that, in any event, evidence did not support the giving of the instruction. The issues on appeal are whether Quimiro preserved his argument below and then, if so, whether evidence in the record supported the giving of the requested jury instruction.
Factual and Procedural Background
¶3 In determining whether the trial court should give any jury instruction, we view the facts in the light most favorable to the proponent of the instruction. State v. Carson, 243 Ariz. 463, ¶ 2 (2018).
The Stabbing
¶4 In July 2016, Quimiro, his fiancée, Claudia, and her son, Brian, were staying with Claudia's mother and brother Eric in the mother and Eric's one-bedroom apartment. Quimiro, Claudia, and Brian had been staying in the apartment for "a couple months." At the time of the assault, Claudia's brother Franklin was also staying at the apartment with his girlfriend and their child.
Victims and witnesses are addressed in this decision by pseudonyms.
¶5 On the day before the assault, Quimiro and Claudia had been drinking and arguing and, that night, Claudia went to sleep on the couch with Brian, while Quimiro, awake, was on the stairs outside the apartment. Eric awakened Claudia in the middle of the night and told her to go outside and ask Quimiro to be quiet. She went outside and told him to be quiet, and then made him something to eat. After she took Quimiro food, she went back to sleep with Brian. Eric later awakened her a second time, again to ask her to tell Quimiro to be quiet. At that point, Quimiro was in the hallway outside the apartment playing music and singing loudly. When Claudia told him to be quiet, Quimiro got upset and said he was going to leave. Claudia asked him not to go, but then said she would leave with him.
¶6 Claudia went inside the apartment to get Brian in order to leave with Quimiro. At that point, Eric told her "this is what happens when you drink. . . . I don't want you drinking. That's why I don't want you here if you're going to be drinking. And you're not going to take the baby and you need to leave him here." Eric and Claudia then began arguing inside the apartment. Quimiro came into the apartment, and started arguing with Eric, telling him he should not speak to his sister that way and he should respect her. Quimiro and Eric continued arguing about how Eric was treating Claudia. Eric and Quimiro subsequently began fighting outside in the hallway, throwing punches at one another. Quimiro drew a pocket knife and slashed at Eric's neck and stabbed him in the upper arm. Franklin was also outside in the hallway and witnessed the stabbing. At some point during the fight, Franklin went inside and took Brian into the bedroom.
¶7 Police officers later arrested Quimiro near the apartment building. Quimiro was charged with one count of aggravated assault with a deadly weapon or dangerous instrument and one count of aggravated assault causing serious physical injury.
Request for the Crime-Prevention Jury Instruction
¶8 Before trial, Quimiro submitted proposed jury instructions, including one entitled "Justification: Use of Force in Crime Prevention" ("crime-prevention instruction"). Quimiro sought the instruction on the grounds he "was justified in using physical force and/or deadly physical force against another if and to the extent the person reasonably believed that physical force or deadly physical force was immediately necessary to prevent another from committing or apparently committed the crime of: Aggravated Assault."
¶9 During his opening statement, Quimiro told the jury Eric had used corporal punishment against Brian. As a result, the state filed a motion to preclude evidence of Eric having used corporal punishment as, among other things, irrelevant under Rule 401, Ariz. R. Evid. During argument on that motion, Quimiro argued that the corporal punishment evidence was relevant to his showing that Eric had a pattern of "abusive behavior." This abusive behavior, he maintained, supported his request for the crime-prevention instruction in that he had acted to prevent an unspecified crime against Brian. The trial court denied the requested instruction, stating that it didn't "see any facts that would support crime prevention" and if Quimiro had been "trying to prevent some crime, he needs to testify that that is what his thought process was. It can't just be left to speculation."
¶10 At the time of the settling of jury instructions, Quimiro argued that he was entitled to the crime-prevention instruction on two theories: that Brian "would have been intimidated of a possible assault," and Brian's potential kidnapping under § 13-1304(A)(4). As to the grounds of a threat of a possible assault against Brian, Quimiro did not elaborate. The kidnapping ground was based on the dual possibility that Quimiro both had heard Eric tell Claudia, before the fight began, that she could not leave with Brian and, after the fight began but before the stabbing, then had seen Franklin take Brian from one room in the house to another. He explained:
Additionally, Your Honor, we did not mention this in chambers but I wish to mention this now, . . . that the knife appeared after [Franklin] appeared. We believe that speaks to the slightest degree of evidence in speaking against kidnapping, crime prevention of kidnapping. And I believe right now this is both placing this on the record and a hybrid of a motion to reconsider, because [Franklin] took the kid.The trial court questioned how either Franklin's presence or absence was connected to the kidnapping. Quimiro seemed to indicate that Franklin's taking Brian was the kidnapping, after which the court pointed out that Franklin's taking of Brian occurred after the fight began. The court stated that it did not see how Quimiro could have begun the fight to prevent a kidnapping which did not occur until after the fight began. Quimiro then explained that, although the fight between Quimiro and Eric had begun, "[Quimiro] did not get mad at [Eric] until he threatened [Claudia], told her to get out, and that they weren't taking the kid." He asserted that the men's argument had escalated and they began fighting, but, it was when Eric told Claudia that "there is no way you're taking the kid," and Franklin took Brian into the other room, that he acted to prevent the kidnapping.
¶11 The trial court then pointed out that there was no evidence that Quimiro had seen Franklin take Brian from the living room into the bedroom, which took place inside the apartment while Quimiro and Eric were fighting outside. Quimiro responded that the testimony showed that the door had been cracked open and there was a "possibility" that he had seen Franklin take Brian into the bedroom. The court again denied the requested crime-prevention instruction.
¶12 A jury found Quimiro guilty, and the trial court sentenced him as described above. This appeal followed. We have jurisdiction under A.R.S. §§ 12-120.21(A)(1), 13-4031, 13-4033(A)(1).
Analysis
¶13 A justification defense is permitted in criminal prosecutions. A.R.S. § 13-401(B). Among other reasons, "[a] person is justified in . . . using both physical force and deadly physical force against another if . . . the person reasonably believes that physical force or deadly physical force is immediately necessary to prevent" certain enumerated crimes. § 13-411(A). Among them are arson of an occupied structure, second or first degree burglary, and kidnapping. Id. If one accused of an unlawful use of physical deadly force is so justified, an otherwise unlawful use of physical deadly force is not unlawful. A.R.S. § 13-205(A). When justification is raised by a defendant and supported by a preponderance of the evidence, the burden then falls on the state to prove, beyond a reasonable doubt, that the defendant's conduct was not justified. Id.
¶14 Quimiro argues that because his request for the crime-prevention instruction was refused, the state was relieved of its burden to prove an essential element of the offense: that his actions were not justified beyond a reasonable doubt. While we "generally review a court's denial of a jury instruction for an abuse of discretion, we independently assess whether the evidence supported a justification instruction, because that is a question of law and involves no discretionary factual determination." State v. Almeida, 238 Ariz. 77, ¶ 9 (App. 2015) (citation omitted). A court must give a jury instruction on any theory the defendant asserts if it is reasonably supported by evidence. State v. Anderson, 210 Ariz. 327, ¶ 60 (2005). "The 'slightest evidence' is sufficient." Almeida, 238 Ariz. 77, ¶ 9. And, while not weighing the evidence presented, the court must decide "whether the record provides evidence 'upon which the jury could rationally sustain the defense.'" Id. (quoting State v. Strayhand, 184 Ariz. 571, 587-88 (App. 1995)).
¶15 As noted, Quimiro claimed at trial he had "two possible theories for crime prevention": 1) that he was trying to prevent a kidnapping of Brian in violation of A.R.S. § 13-1304(A)(4), and 2) that expected evidence would show Brian "would have been intimidated of a possible assault." Section 13-1304(A)(4) states that "[a] person commits kidnapping by knowingly restraining another person with the intent to . . . [p]lace the victim or a third person in reasonable apprehension of imminent physical injury to the victim or third person." On appeal, Quimiro no longer asserts that he was trying to prevent a kidnapping under § 13-1304(A)(4). Instead, he asserts, for the first time, that the instruction should have been given because he was trying to prevent either Eric or Franklin, or both, from kidnapping Brian as defined by § 13-1304(A)(3). A kidnapping under § 13-1304(A)(3) occurs when a person "knowingly restrain[s] another person with the intent to . . . [i]nflict death, physical injury or a sexual offense on the victim, or to otherwise aid in the commission of a felony." Quimiro asserts that the felony he was trying to prevent was felony custodial interference under § 13-1302.
For purposes of this decision, we presume that Quimiro intended to assert by these "two theories" that the purported kidnapping under A.R.S. § 13-1304(A)(4) was effected by the putative kidnappers placing Brian in apprehension of an assault. We further presume that Brian was a minor at the time of the events, as the parties argued at trial and in their briefing, although there exists no evidence in the record of his age.
¶16 Custodial interference, in relevant part, occurs when a person "knowing or having reason to know that the person has no legal right to do so . . . [t]akes, entices or keeps from lawful custody any child . . . who is entrusted by authority of law to the custody of another person or institution." § 13-1302(A)(1). Custodial inference is a class three felony "if committed by a person other than the parent or agent of the parent," but it is chargeable as a class one misdemeanor "if the child . . . is voluntarily returned without physical injury . . . no later than forty-eight hours after the . . . defendant takes, entices or keeps from lawful custody the child." § 13-1302(E)(1), (4).
Preservation of the Issue on Appeal
¶17 The state argues that Quimiro's request for a crime-prevention instruction on the basis of custodial interference was not preserved because it is raised for the first time on appeal. It is certainly true that Quimiro first asked for a crime-prevention instruction on the ground he had stabbed Eric because he was trying to prevent an aggravated assault. And it is also true that, during trial, Quimiro then re-urged the request for the crime-prevention instruction on the grounds that he had stabbed Eric to prevent Brian's potential kidnapping under § 13-1304(A)(4). The state is perfectly correct that at no time until this appeal did Quimiro specifically assert that he had stabbed Eric because he was trying to prevent felony custodial interference.
¶18 Objection to an instruction or to the trial court's refusal to give an instruction on one ground does not preserve the issue on another ground. See State v. Govan, 154 Ariz. 611, 615 (App. 1987). However, this court has previously held that "kidnapping is one crime," regardless of the defendant's intent. State v. Jones, 185 Ariz. 403, 406 (App. 1995) (quoting Rudolph J. Gerber, Criminal Law of Arizona, at 1304-3 (2nd ed. 1993)); see also State v. Stough, 137 Ariz. 121, 123 (App. 1984). In Stough, the court determined the defendant, although charged with kidnapping with the intent to otherwise aid in the commission of a felony (§ 13-1304(A)(3)), could have also been convicted of kidnapping with the intent to place the victim or a third person in reasonable apprehension of imminent physical injury (§ 13-1304(A)(4)). We concluded that the subsections of § 13-1304(A) are not separate offenses, but various ways a person could commit kidnapping. Similarly, while Quimiro did not argue below that he was trying to thwart a kidnapping by felony custodial interference, but instead to thwart a kidnapping committed in another way, he preserved this issue for appeal. See State v. Martinez, 172 Ariz. 437, 440 (App. 1992) (finding "magic words" were not necessary and adequate argument was sufficient to preserve an issue for appeal). We conclude, however, that Quimiro failed to present sufficient facts to be entitled to the instruction even under this new theory.
The Evidence in the Record Does Not Support a Reasonable Belief that Physical Force Was Necessary to Prevent Kidnapping
¶19 The upshot of Quimiro's argument is that he was compelled to stab Eric because he was in a position to have heard Eric tell Claudia that she could not take Brian with her in the middle of the night and because he could, thereafter, while exchanging punches with Eric, possibly have seen into the apartment and noted Franklin taking Brian from the living room into the bedroom. The trial court repeatedly denied the requested instruction because no evidence, whether direct or circumstantial, showed that Quimiro had either heard Eric's statement or saw Franklin's movements. The possibility that he could have heard or seen those things is sheer speculation.
¶20 As detailed above, the stabbing took place outside the apartment in a common-area hallway. Claudia testified that Quimiro was in that hallway when Eric told her, inside the apartment, to leave Brian behind if she left with Quimiro. She further testified that it was after that statement, only once she and Eric began arguing, that Quimiro came to the "cracked" front door, opened it, and told Eric to "respect" his sister. There was no evidence Quimiro had heard and was reacting to anything other than Eric and Claudia's general argument, and no testimony that Quimiro had made any statement indicating that he was reacting to Eric's demand that Brian stay behind.
¶21 As to whether Quimiro stabbed Eric because Franklin took Brian from the living room to the bedroom, although witness testimony conflicted, Claudia's testimony was the most favorable to Quimiro's claim. When asked if Franklin took Brian into the other room before the stabbing, Claudia said yes. However, Claudia also testified she had been outside in the hallway trying to break up the fight, and did not testify she had seen that occur, nor did she testify or even speculate that Quimiro had seen it. And, certainly, Quimiro did not testify in support of this claim. The only evidence otherwise to support this proposition is that the front door of the apartment was cracked open, which led to Quimiro arguing that, while in the heat of his battle with Eric, he could possibly have seen Franklin take Brian from one room in the apartment to another. But no evidence was presented that Quimiro at any point during the fight actually could have seen, let alone did see, Franklin do so. This was rank speculation at best.
¶22 As stated above, to be entitled to a jury instruction, there must be some evidence—albeit slight—that the instruction is warranted. Anderson, 210 Ariz. 327, ¶ 60. To be entitled to a crime-prevention instruction, there must be some evidence that the defendant reasonably believed his use of force was necessary to prevent the crime. § 13-411(A). Had Quimiro testified in support of his affirmative defense, he might have presented evidence that he reasonably believed—based on his history with Eric or on what he saw and heard—that Eric or Franklin or both were going to commit the felony of custodial interference by keeping Brian from Claudia. But Quimiro did not testify at trial, and no other evidence in the record suggests that he either believed or reasonably could have believed that either Eric or Franklin were preparing to kidnap Brian.
¶23 The crime-prevention instruction was not supported by even the slightest evidence. The trial court's refusal to give the instruction did not relieve the state of its burden of proving an essential element of its case, and was not error, whether harmless, fundamental, or structural. See State v. Diaz, 223 Ariz. 358, ¶ 11 (2010) (whether characterized as harmless error, fundamental error, or structural error, a defendant must show that an error occurred).
Disposition
¶24 For these reasons, we affirm Quimiro's conviction and sentence.