Opinion
2 CA-CR 2023-0109
03-01-2024
The State of Arizona, Appellee, v. Ronnie Hursey, Appellant.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Casey D. Ball, Assistant Attorney General, Phoenix Counsel for Appellee. Kate Milewski, Pinal County Public Defender By Kevin D. Heade, Defender Attorney, Florence Counsel for Appellant.
Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Pinal County No. S1100CR202100159 The Honorable Daniel A. Washburn, Judge.
Kristin K. Mayes, Arizona Attorney General Alice M. Jones, Deputy Solicitor General/Section Chief of Criminal Appeals By Casey D. Ball, Assistant Attorney General, Phoenix Counsel for Appellee.
Kate Milewski, Pinal County Public Defender By Kevin D. Heade, Defender Attorney, Florence Counsel for Appellant.
Presiding Judge Eppich authored the decision of the Court, in which Chief Judge Vasquez and Judge Kelly concurred.
MEMORANDUM DECISION
EPPICH, PRESIDING JUDGE.
¶1 Ronnie Hursey appeals from his convictions and sentences for aggravated assault and possession of drug paraphernalia. He argues the trial court erred by not instructing the jury on self-defense and by not calculating and awarding presentence incarceration credit at sentencing. Because Hursey was entitled to a self-defense instruction, we vacate his aggravated assault conviction and sentence and remand for a new trial on that count. We affirm his possession of drug paraphernalia conviction, and remand for the trial court to determine whether Hursey is entitled to presentence incarceration credit.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to Hursey's request for a self-defense instruction. See State v. Carson, 243 Ariz. 463, ¶¶ 2, 17 (2018). In December 2020, B.P. and his girlfriend, J.F., were renting a portion of Hursey's property where they lived in a camper. At one point, Hursey became angry with B.P. and "rush[ed him] out of the property."
¶3 Almost a week later, B.P. and J.F. returned to collect their belongings. When they arrived, Hursey was outside working on a car and had two screwdrivers in his hands. Hursey approached the passenger side of B.P. and J.F.'s car. Hursey and B.P. began yelling, and Hursey believed B.P. wanted to fight him. B.P. put the car in drive and hit Hursey with it. In response, Hursey "went around the car to do something" to B.P. Hursey stabbed B.P. with a screwdriver through the half-open window.
Hursey later told an officer that B.P. had retrieved a sledgehammer from his trunk. It is unclear at what point during the altercation this allegedly occurred, but it is undisputed that B.P. was in the car when Hursey stabbed him.
¶4 B.P. and J.F. left, and J.F. called 9-1-1. When law enforcement officers arrived, Hursey reported that B.P. had "tried to do a hit and run on him" and "had hit [him] with his car." Hursey asked if he could press charges because B.P. had "tried to run over [him]."
¶5 An officer arrested Hursey and recovered a pipe used for methamphetamine from his pocket. After a three-day jury trial, Hursey was convicted as described above. The trial court sentenced him to concurrent terms of imprisonment, the longest of which is 7.5 years. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Discussion
I. Self-Defense Instruction
¶6 Hursey argues the trial court erred by rejecting his request for a self-defense instruction because the "slightest evidence" supports it. "[W]e independently assess whether the evidence supported a justification instruction, because that is a question of law and involves no discretionary factual determination." State v. Pina-Barajas, 244 Ariz. 106, ¶ 4 (App. 2018) (quoting State v. Almeida, 238 Ariz. 77, ¶ 9 (App. 2015)). The court concluded there was no evidence that Hursey "purposefully defended himself or did something to defend himself." The court acknowledged there was evidence that Hursey "was possibly bumped by the vehicle driven by [B.P.]," but that the evidence "still doesn't in the slightest degree propose that he was acting in self-defense."
¶7 On appeal, Hursey highlights evidence showing B.P. hit him with a car; he intended to respond to the threat; he hit B.P. with a screwdriver; B.P. was driving at the time Hursey hit him; and he told officers he was the victim of a hit-and-run. The state responds that even assuming B.P. bumped Hursey with the car, there was not the slightest evidence that Hursey acted in response to B.P.'s "use or attempted use of unlawful physical force," and, in any event, Hursey was the initial aggressor and therefore was not entitled to a self-defense instruction.
¶8 Arizona law permits a person, under certain circumstances, to act in self-defense. State v. King, 225 Ariz. 87, ¶ 6 (2010). "A person is justified in using physical force against another, and does not commit a crime, 'when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other's use or attempted use of unlawful physical force.'" Carson, 243 Ariz. 463, ¶ 9 (quoting A.R.S. § 13-404(A)). This is an objective standard that depends on "the beliefs of a 'reasonable person' in the defendant's circumstances rather than the defendant's subjective beliefs." Id. If the slightest evidence supports a finding of self-defense, the trial court must instruct the jury on self-defense. Id. ¶¶ 1, 9; see also State v. Vassell, 238 Ariz. 281, ¶ 9 (App. 2015) (party entitled to jury instruction on any theory reasonably supported by the evidence). "The 'slightest evidence' standard presents a low threshold." Carson, 243 Ariz. 463, ¶ 19 (quoting King, 225 Ariz. 87, ¶ 15). But see Vassell, 238 Ariz. 281, ¶ 9 (speculation, or "merely an inference making an argument possible," cannot substitute for evidence).
¶9 Because the state has the burden to disprove self-defense beyond a reasonable doubt, a defendant does not have to show evidence of each element of self-defense to receive the jury instruction. King, 225 Ariz. 87, ¶ 14. Rather, a defendant is entitled to a self-defense jury instruction if he identifies some evidence showing he acted in response to a "hostile demonstration," which may be "reasonably regarded as placing the accused apparently in imminent danger of losing [his] life or sustaining great bodily harm." Carson, 243 Ariz. 463, ¶ 19 (quoting King, 225 Ariz. 87, ¶ 15). Whether the defendant actually acted in self-defense is a question for the jury. State v. Johnson, 108 Ariz. 42, 43 (1972); see also Everett v. State, 88 Ariz. 293, 299 (1960) ("Defendant claimed he was acting in self-defense, and that what he did was necessary for his own protection. Whether that is true or not was a question of fact for the jury and not for the court." (quoting Richardson v. State, 34 Ariz. 139, 144 (1928))).
¶10 Viewed in the light most favorable to Hursey's requested instruction, see Carson, 243 Ariz. 463, ¶¶ 2, 17, there is evidence that B.P. hit Hursey with a car. Hursey reported this multiple times to responding officers, and one officer testified that it was "within the realm of possibilities" that dust marks on B.P.'s car could be "consistent with a vehicle hitting [Hursey]." This can be reasonably regarded as a "hostile demonstration." See Carson, 243 Ariz. 463, ¶ 19; cf. State v. Paxson, 203 Ariz. 38, ¶ 22 (App. 2002) (vehicle may qualify as a dangerous instrument for sentencing purposes); A.R.S. § 13-105(12) ("Dangerous instrument" is "anything that under the circumstances . . . is readily capable of causing death or serious physical injury."); King, 225 Ariz. 87, ¶¶ 2, 16 (full two-liter bottle thrown at defendant's head constituted hostile demonstration); Everett, 88 Ariz. at 298 (following defendant closely with hand in his pocket and threatening to "do[ him] in" was hostile demonstration); Johnson, 108 Ariz. at 43 (inference of self-defense when cursing at defendant from inside truck and "lean[ed] over in his truck").
¶11 The state argues that B.P. was not a "hostile trespasser" because he "drove slowly onto the property with the intention of retrieving his personal effects, and that he had a right to be on the property because he had paid rent to the end of the month." It asserts that even if there was a hostile demonstration by B.P., there was not "even the slightest evidence that [Hursey] was acting in response to [B.P.]'s 'use or attempted use of unlawful physical force.'" The state also argues Hursey provided "divergent versions of [B.P.]'s actions" and some of his statements "directly contradicted any post-hoc attempt to fashion a self-defense claim." Specifically, it points to Hursey's statements to officers in which "he denied stabbing [B.P.]; claimed he had no motivation to stab [B.P.]; and said that at most, he accidentally 'scratched' [B.P.] while trying to get out of [B.P.'s] way." The state also contends Hursey's statements that he "was going to do something to [B.P.]" and "was walking towards [B.P.] cause [he] was mad," demonstrate a retaliation out of anger, not a response in self-defense.
¶12 But in determining slight evidence, we do not "weigh the evidence or resolve conflicts in it, [we] merely decide[] whether the record provides evidence 'upon which the jury could rationally sustain the defense.'" Almeida, 238 Ariz. 77, ¶ 9 (citations omitted) (quoting State v. Strayhand, 184 Ariz. 571, 588 (App. 1995)); see also Carson, 243 Ariz. 463, ¶¶ 18, 22 (concluding slight evidence to support self-defense instruction despite substantial contrary evidence). Although Hursey's statements were inconsistent and the record surrounding the sequence of events is unclear, there is evidence that B.P. hit Hursey with a car and that Hursey responded by going "around the car to do something" and stabbed B.P. with the screwdriver. We do not weigh the evidence to determine whether Hursey's response was retaliatory or defensive. See Almeida, 238 Ariz. 77, ¶ 9. That is a fact question for the jury. See Everett, 88 Ariz. at 299. The evidence here, albeit slight, is sufficient to entitle Hursey to a self-defense instruction.
¶13 The state argues that even if Hursey's actions were in response to a hostile demonstration, Hursey's "aggressive action of stepping in front of a moving vehicle" made him the initial aggressor preventing the applicability of a self-defense instruction. See State v. Lujan, 136 Ariz. 102, 104-05 (1983) (defendant not entitled to self-defense instruction because he provoked hostile demonstration); § 13-404(B)(3) (subject to exceptions, no self-defense if defendant "provoked the other's use or attempted use of unlawful physical force"). But the record is disputed on this point. B.P. testified he drove onto Hursey's property after being "rush[ed] . . . out of the property" a week prior. B.P. stated Hursey subsequently approached from the passenger side and "put his hands on the car." Hursey told officers B.P. hit him with the car. An officer affirmed that the car had dust marks "consistent with . . . Hursey kind of slamming his hands on the hood," but also affirmed that it was "within the realm of possibilities" that the marks could be consistent with the car "hitting [Hursey] and he kind of losing balance and falling over on top of the hood."
¶14 Because we do not resolve conflicting evidence and we view it in the light most favorable to giving the instruction, see Almeida, 238 Ariz. 77, ¶ 9, we are not in a position to determine whether Hursey was the initial aggressor. That question is properly left to the jury. See Everett, 88 Ariz. at 299; King, 225 Ariz. 87, ¶ 18 (when jury is given self-defense instruction, state can "attempt to persuade the factfinder" that defendant's actions were not justified). Accordingly, the trial court erred by failing to provide a self-defense instruction.
Reversible Error
¶15 The parties disagree whether the instructional error here is amenable to harmless error review. The state asserts it is, while Hursey maintains this error, if preserved, requires automatic reversal. Compare State v. Noriega, 142 Ariz. 474, 482 (1984) (assuming defendant was entitled to self-defense instruction, failure to instruct was harmless error), overruled on other grounds by State v. Burge, 167 Ariz. 25, 28 n.7 (1990), with Carson, 243 Ariz. 463, ¶¶ 23-24 (reversing for failure to provide requested self-defense instruction with no harmless error analysis). But we need not resolve this question. Even assuming harmless error applies, the state has not shown the error here was harmless.
¶16 The state asserts the error was harmless because "[a]lthough Hursey claimed the car 'bumped' him, he never complained of an injury or pain from the bump" and "never even claimed he acted in self-defense." It argues that "[h]ad Hursey truly believed that the car posed an immediate danger, no reasonable person would have marched closer to the car to confront the driver because that would have only put him in further danger." It further contends that Hursey's "changing and increasingly fantastical version of events . . . undermined any credibility to a claim of self-defense" when compared to the consistent testimony of B.P. and J.F. It asserts "[n]o reasonable juror could have reached a different result if instructed on self-defense" and the error was therefore harmless.
¶17 The question in harmless-error review "is not whether, in a trial that occurred without the error, a guilty verdict would surely have been rendered, but whether the guilty verdict actually rendered in this trial was surely unattributable to the error." State v. Teran, 253 Ariz. 165, ¶ 24 (App. 2022) (quoting State v. Bible, 175 Ariz. 549, 588 (1993)). The state must show beyond a reasonable doubt that the error did not affect the verdict. Id.
¶18 Once a defendant has shown the slightest evidence of self-defense, "'the state must prove beyond a reasonable doubt that the defendant did not act with justification.' In effect, once sufficient self-defense evidence is admitted, the absence of self-defense becomes an additional element the state must prove to convict." Carson, 243 Ariz. 463, ¶ 11 (citation omitted) (quoting A.R.S. § 13-205(A)); see also King, 225 Ariz. 87, ¶ 6 (self-defense is not an affirmative defense that defendant must prove).
¶19 The evidence of self-defense here was slight and we agree with the state that Hursey gave inconsistent accounts of the incident. But particularly where evidence is unclear, weight and credibility are questions for the jury. State v. Bernstein, 237 Ariz. 226, ¶ 18 (2015); see also State v. Romero, 240 Ariz. 503, ¶ 7 (App. 2016) (in harmless error review, appellate court is not a second jury to determine whether defendant is guilty). And here, the state emphasized in closing arguments that self-defense did not apply, stating,
Let's first start about what this is not. This is not a self-defense case. Okay. You do not have a self-defense instruction. There was no evidence presented about self-defense.
Keep in mind the burden to prove each of these counts is on the state. The defense does not have to prove anything. It's my burden, but there has been no evidence presented to show that this is a self-defense case.
The lack of instruction combined with the state's comments in closing relieved the state of its burden, and on this record, we cannot say beyond a reasonable doubt that the jury surely would have found that Hursey did not act in self-defense. We therefore cannot conclude that the error in failing to instruct on self-defense was harmless. Accordingly, we vacate Hursey's aggravated assault conviction and sentence and remand for further proceedings on that count.
II. Presentence Incarceration Credit
¶20 Hursey also argues the trial court erred by "refusing to calculate and include presentence incarceration credit" when it sentenced him. We review the court's decision on presentence incarceration credit de novo. State v. Yug, 252 Ariz. 203, ¶ 4 (App. 2021).
¶21 Before sentencing, Hursey filed a memorandum asserting, without support, that he was entitled to 708 days of presentence incarceration credit. After the trial court sentenced him, Hursey again raised the issue of presentence incarceration credit. The court requested that Hursey file a motion regarding his calculations for presentence incarceration credit.
¶22 Hursey subsequently filed a motion asking the trial court to "clarify" whether it intended to credit him 124 days, which he asserted was the time from when his release conditions were set in this case until his release conditions were set in another case. Hursey noted in his motion that the state objected to any time credit. The court held the motion in abeyance, reasoning that because Hursey had filed his notice of appeal, "it would be inappropriate for the Court to clarify its prior orders."
Hursey argues this conclusion was error and that we should not "ignore the errors th[at] led to the sentencing error below because [our] guidance can avoid similar errors in the future." Because it is not necessary to the disposition of this appeal, we do not express an opinion on this alleged error. See State v. Anderson, 197 Ariz. 314, ¶ 1 (2000).
¶23 On appeal, Hursey argues "[t]he trial court's refusal to calculate and award the presentence incarceration credit was error." The state agrees the court erred by not determining if Hursey was entitled to presentence incarceration credit and asserts remand is necessary.
¶24 A defendant is entitled to credit for "[a]ll time actually spent in custody pursuant to an offense until [he] is sentenced to imprisonment for such offense." A.R.S. § 13-712(B). When the trial court pronounces a sentence, it must, "specify the beginning date for the term of imprisonment and the amount of time to be credited against the sentence as required by law." Ariz. R. Crim. P. 26.10(c)(4). This rule is mandatory, but if the record is sufficiently clear, we have, in the first instance, determined an award of presentence incarceration credit. See State v. Cruz-Mata, 138 Ariz. 370, 375-76 (1983).
¶25 Here, as the state points out, there are ambiguities in the record regarding presentence incarceration credit, and Hursey agrees remand is appropriate. Accordingly, we remand to the trial court to consider, in the first instance, whether Hursey is entitled to presentence incarceration credit. See State v. Mendoza-Tapia, 229 Ariz. 224, ¶ 26 (App. 2012) ("Because both parties indicate the record may not be entirely clear on this issue, we leave the issue of the discrepancy in presentence incarceration credit to the trial court.").
Disposition
¶26 For the foregoing reasons, we vacate Hursey's conviction and sentence for aggravated assault. As the self-defense instruction did not affect his possession of drug paraphernalia conviction and he raised no error with regard to that count, we affirm Hursey's conviction for possession of drug paraphernalia. We remand for further proceedings consistent with this decision.