Opinion
No. 1 CA-CR 15-0365
06-21-2016
STATE OF ARIZONA, Appellee, v. ROGER RALPH PLUMMER, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Maricopa County Public Defender, Phoenix By Spencer D. Heffel 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2014-136478-001 DT
The Honorable Robert E. Miles, Judge, retired
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Maricopa County Public Defender, Phoenix
By Spencer D. Heffel
Counsel for Appellant
MEMORANDUM DECISION
Judge Jon W. Thompson delivered the decision of the Court, in which Presiding Judge Patricia A. Orozco and Judge Peter B. Swann joined.
THOMPSON, Judge:
¶1 Roger Ralph Plummer (defendant) appeals from his conviction and sentence for misconduct involving weapons, a class 4 felony. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 One morning in May 2014, defendant's friend Gary left a gun belonging to defendant's father in defendant's vehicle. The two had been cleaning out defendant's father's house and Gary had taken the gun from the house. Later that day, defendant, who was a prohibited possessor, found the gun in his vehicle and pawned it for $120.00 or $125.00. Defendant testified at trial that he had no intention of picking the gun back up. Police monitoring the pawnshop discovered the transaction, and the state charged defendant with one count of misconduct involving weapons, a class 4 felony. The state alleged that defendant had five prior felony convictions.
¶3 At trial, defendant requested the trial court to instruct the jury on the defense of necessity. The trial court denied the request. After the trial, the jury found defendant guilty of misconduct involving weapons and the trial court found that defendant had five prior felonies. The trial court sentenced defendant to a mitigated sentence of six years in prison and gave him credit for fifty-two days of presentence incarceration. Defendant timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1) (2016), 13-4031 (2010), and -4033(A) (2010).
DISCUSSION
¶4 Defendant raises one issue on appeal: whether the trial court erred by denying his request for a necessity defense instruction. We review a trial court's refusal to give a party's requested jury instruction for an abuse of discretion. State v. Anderson, 210 Ariz. 327, 343, ¶ 60, 111 P.3d 369, 385 (2005). "A party is entitled to an instruction on any theory of the case
reasonably supported by the evidence." State v. Shumway, 137 Ariz. 585, 588, 672 P.2d 929, 932 (1983). However, it is improper to give an instruction not "reasonably and clearly supported by the evidence." State v. Ruggiero, 211 Ariz. 262, 264-65, ¶ 10, 120 P.3d 690, 692-93 (App. 2005).
¶5 Citing A.R.S. § 13-417, defendant argues he was entitled to a necessity defense instruction because his conduct in pawning the gun was justified and he did not "intentionally, knowingly or recklessly" place himself in the situation which caused him to commit the offense. Section 13-417 provides, in relevant part:
Necessity defense
A. Conduct that would otherwise constitute an offense is justified if a reasonable person was compelled to engage in the proscribed conduct and the person had no reasonable alternative to avoid imminent public or private injury greater than the injury that might reasonably result from the person's own conduct.
B. An accused person may not assert the defense under subsection A if the person intentionally, knowingly or recklessly placed himself in the situation in which it was probable that the person would have to engage in the proscribed conduct.
(Emphasis added). The evidence at trial did not support a necessity defense instruction. Defendant had reasonable, legal alternatives to violating the law. He could have asked someone else to remove the gun from his car or even called the police to remove the gun. Instead, defendant intentionally chose to pawn the gun for money. Accordingly, we find no abuse of discretion in the trial court's decision not to give the jury a necessity defense instruction.
CONCLUSION
¶6 For the foregoing reasons, defendant's conviction and sentence are affirmed.