Opinion
No. 1 CA-CR 15-0055
03-24-2016
STATE OF ARIZONA, Appellee, v. LOUIS CHARLES JACKSON, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Jillian Francis Counsel for Appellee Maricopa County Legal Defender's Office, Phoenix By Cynthia D. Beck 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2014-127700-001
The Honorable Jeffrey A. Reuter, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Jillian Francis
Counsel for Appellee Maricopa County Legal Defender's Office, Phoenix
By Cynthia D. Beck
Counsel for Appellant
MEMORANDUM DECISION
Judge Patricia K. Norris delivered the decision of the Court, in which Presiding Judge Jon W. Thompson and Judge Maurice Portley joined. NORRIS, Judge:
¶1 In this appeal, Louis Charles Jackson argues the superior court failed to properly instruct the jury on aggravated assault, a class 4 felony, because it did not inform the jury the alleged assault was a bite to Sergeant R.S.'s hand, as alleged in the indictment. Because Jackson failed to object to the court's instruction, we review for fundamental error and find none. Ariz. R. Crim. P. 21.3; State v. Morales, 198 Ariz. 372, 374, ¶ 6, 10 P.3d 630, 632 (App. 2000).
The State argues Jackson invited any potential error here because his proposed jury instructions on aggravated assault were the same as the ones used by the court. The record reflects, however, the court pulled the instructions from another case and did not actually rely on the instructions Jackson submitted.
¶2 As relevant here, the court instructed the jury:
Count 1, Aggravated Assault, which requires proof of the following:
1. The defendant committed an assault; and
2. The defendant knew or had reason to know the person assaulted was a peace officer performing official duties.
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Assault. The crime of Assault requires proof the defendant intentionally, knowingly, or recklessly caused any physical injury to another person.
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"Physical injury" means the impairment of physical condition.On its face, the instructions were proper—the superior court properly instructed the jury on the applicable law, as the instruction closely tracked the language of Arizona Revised Statute sections 13-105(33) (Supp. 2015), -1203 (2010), -1204(A)(8)(a) (Supp. 2015).
We also note the instruction mirrored the Revised Arizona Jury Instructions Criminal 1.0533, 12.03, 12.04 (4th ed. 2015).
Although the Arizona Legislature amended some of these statutes after the date of Jackson's offense, the revisions are immaterial to this appeal. Thus, we cite to the current version of all statutes.
¶3 Nevertheless, Jackson argues the instructions were incomplete because they did not specify the bite as the basis for the aggravated assault. State v. Henderson, 210 Ariz. 561, 568, ¶ 23, 115 P.3d 601, 608 (2005) (appellant must first prove error under fundamental error review); State v. Johnson, 205 Ariz. 413, 417, ¶ 10, 72 P.3d 343, 347 (App. 2003) (a correct, but incomplete or misleading instruction is erroneous). In making this argument, he points to a jury question asked during deliberations—"If there were no alleged bite involved in this case, would the scrape injuries rise to the level of 'assault'?"
In response to the question, the superior court directed the jury to refer back to the instructions. Jackson agreed to this response.
¶4 The parties' closing arguments, however, clarified the aggravated assault was based on the bite and alleviated any alleged ambiguity in the instruction. See Morales, 198 Ariz. at 374, ¶ 5, 10 P.3d at 632 (court may consider closing arguments in conjunction with the jury instructions). Both Jackson and the State maintained in their closing arguments the alleged aggravated assault was the bite. At the beginning of the State's closing argument, the prosecutor told the jury, "As I said at the beginning of this trial, we're here because the defendant . . . bit Sergeant [R.S.'s] hand, causing him physical injury." She then referred back to the bite repeatedly throughout her argument and again in rebuttal. Defense counsel also explicitly asked the jury to consider only the bite, stating, "So if you believe that it's possible that the injury on Sergeant [R.S.'s] left hand came from either the scraping of a wall or is another rug burn, then [Jackson] is not guilty." Thus, although the superior court did not instruct the jury that the aggravated assault charged was the bite, the jury instruction, considered with the closing arguments, was not incomplete or misleading.
¶5 For the foregoing reasons, we affirm Jackson's conviction and sentence for aggravated assault.
The jury also convicted Jackson of resisting arrest, a class 6 felony. Jackson did not challenge either the resisting arrest conviction or sentencing on appeal. --------