Opinion
1 CA-CR 11-0346
02-26-2013
STATE OF ARIZONA, Appellee, v. MICHAEL ANTHONY RAYMOND, Appellant.
Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Michael T. O'Toole, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Cory Engle, Deputy Public Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-150932-001 SE
The Honorable Karen L. O'Connor, Judge
AFFIRMED
Thomas C. Horne, Attorney General
by Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
and Michael T. O'Toole, Assistant Attorney General
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
by Cory Engle, Deputy Public Defender
Attorneys for Appellant
Phoenix PORTLEY, Judge ¶1 Defendant Michael Raymond appeals his conviction and sentence for aggravated assault. He contends the trial court erred by denying his request for a crime prevention instruction. For the reasons that follow, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Raymond was indicted for aggravated assault, a class 4 felony, after hitting a bar patron and knocking out his four front teeth. Although the jury was given justification instructions based on self defense and defense of a third person, the court refused to give a crime prevention instruction. Raymond was convicted, placed on two years of supervised probation and ordered to pay $1295 in restitution. We have jurisdiction over his appeal pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031, and - 4033(A)(1) (West 2013).
DISCUSSION
¶3 Raymond contends the trial court erred by refusing to give a crime prevention instruction. We review the court's denial of a requested jury instruction for an abuse of discretion. State v. Anderson, 210 Ariz. 327, 343, ¶ 60, 111 P.3d 369, 385 (2005). ¶4 A crime prevention instruction is warranted where there is evidence that the defendant used reasonable force "immediately necessary to prevent the . . . commission of . . . aggravated assault." A.R.S. § 13-411(A) (West 2013). And, although "a defendant is entitled to a justification instruction if it is supported by the slightest evidence," State v. Hussain, 189 Ariz. 336, 337, 942 P.2d 1168, 1169 (App. 1997) (internal quotation marks omitted), "[a]n instruction should not be given . . . unless it is reasonably and clearly supported by the evidence." State v. Ruggiero, 211 Ariz. 262, 264, ¶ 10, 120 P.3d 690, 692 (App. 2005) (internal quotation marks omitted). ¶5 The uncontested trial evidence demonstrated the following: the victim, who was drunk, sat down uninvited at Raymond's table and began joking around with Raymond's friend, Debbie; on prior occasions in the bar, Raymond had seen the victim punching other patrons in the buttocks and getting "smacked around" for the obnoxious behavior; and Raymond left the table and went to the bar after the victim sat down. Although Raymond testified that he punched the victim in the mouth when he returned to the table because the victim made a fist and "snarled" as he stood up, the victim and another witness testified that the victim did not raise his fists or prepare to attack anyone when Raymond punched him. ¶6 The evidence did not support Raymond's contention that he had to punch the victim to prevent an aggravated assault. The two men were not in physical contact before the punch, and no evidence showed that the victim had a deadly weapon or dangerous instrument. Moreover, Debbie was not being threatened, and testified that she did not feel that she was in any physical danger. And Raymond had ample opportunity to leave the table without throwing the punch. ¶7 Raymond, however, asserts that he was entitled to the instruction because the results of his punch constituted the aggravated assault. We disagree. Even if we presume for the sake of argument that the victim had made a fist, the court was not required to give the crime prevention instruction; Raymond was not trying to prevent an aggravated assault, but caused one. Consequently, the trial court did not abuse its discretion by refusing to the give a crime prevention instruction. See State v. Vandever, 211 Ariz. 206, 208, ¶ 7, 119 P.3d 473, 475 (App. 2005) ("[A] trial court's refusal to give an instruction for a lack of factual basis is within its discretion.").
The statute specifically limits crime prevention justification to aggravated assaults involving "serious physical injury to another" or the use of a "deadly weapon or dangerous instrument." See A.R.S. §§ 13-411(A), - 1204(A) (West 2013).
Raymond was convicted for causing "temporary but substantial disfigurement" under the aggravated assault statute. A.R.S. § 13-1204(A)(3). The category is not included among those permitted for crime justification. See A.R.S. § 13-411(A) (restricting crime prevention for aggravated assault involving "serious physical injury to another" or the use of a "deadly weapon or dangerous instrument.").
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CONCLUSION
¶8 Based on the foregoing, we affirm Raymond's conviction and sentence.
________________________
MAURICE PORTLEY, Presiding Judge
CONCURRING: ____________
PATRICIA A. OROZCO, Judge
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RANDALL M. HOWE, Judge