Appeal in Pima County Juvenile Action No. J-78539-2, Matter of

• Decision Date: 20 December 1984
• Docket Number: J-78539-2,No. 17669-PR,17669-PR
• Citation: 693 P.2d 909,143 Ariz. 254
• Parties: In the Matter of the APPEAL IN PIMA COUNTY JUVENILE ACTION NO.
• Court: Arizona Supreme Court

Page 909

693 P.2d 909

143 Ariz. 254

In the Matter of the APPEAL IN PIMA COUNTY JUVENILE ACTION NO. J-78539-2.

No. 17669-PR.

Supreme Court of Arizona, In Banc.

Dec. 20, 1984.

Stephen D. Neely, Pima County Atty., by Kate Dawes, Deputy Pima County Atty., Tucson, for respondent.

Walter B. Nash III, Tucson, for petitioner.

HAYS, Justice.

Our petition for review was filed by the Pima County Attorney after the Court of Appeals, Division Two, reversed the trial court. In the Matter of the Appeal in Pima County, Juvenile Action No. J-78539-2 (2 CA-CIV 5138, July 12, 1984). Opinion of the Court of Appeals is vacated.

There is one basic issue presented in this appeal: Was the evidence sufficient to establish the requisite mens rea for the crime of aggravated assault under A.R.S. § 13-1203(A)(2) (intentionally placing another person in reasonable apprehension of imminent physical injury)?

Following are the facts taken from the record which are the basis for this action.

In the early morning hours of August 22, 1983, police were called to the area of a trailer park near Green Valley. Residents there were detaining two boys, appellant and his brother, who had been prowling around the area. As the police arrived, the juveniles ran off into the desert to avoid capture. One deputy spotted appellant and drove his vehicle down a dirt road in appellant's direction at approximately 20 to 25 miles per hour. Appellant began to run, and when his path of flight crossed in front of the deputy's vehicle, appellant assumed a shooting stance and fired two shots at the police car with a .357 magnum from a distance of 30 to 40 yards, one of which struck the left rear tire. At the time of the shooting, appellant was slightly to the left of the front of the vehicle. The deputy had not known that appellant was armed, but, upon hearing the gunshots and seeing two flashes of light, took cover in his vehicle and drew his service revolver.

Appellant, who was then 13 years old, was charged with aggravated assault under A.R.S. § 13-1203(A)(2) (intentionally placing another person in reasonable apprehension of imminent physical injury). At the hearing, appellant testified that, as he was running, he became frightened and thought the car was going to run over him, and that he aimed at the car to prevent the vehicle from pursuing him. On the basis of this testimony, the defense argued that the defendant had not intended to place the deputy "in reasonable apprehension of imminent physical injury," and that the elements of A.R.S. § 13-1203(A)(2) were not met.

The court adjudicated appellant delinquent and committed him to the Department of Corrections. The juvenile appealed, arguing that the state failed to establish the existence of the requisite mens rea for the commission of the offense.

There is an apparent conflict between the two divisions of our Court of Appeals. State v. Morgan, 128 Ariz. 362, 625 P.2d 951 (App.1981), written by Division One, in that portion applying to our basic issue here, addressed the question of what lesser included offenses should be a part of the court's instructions to the jury. The charged offense was assault with a deadly weapon or dangerous instrument in violation of A.R.S. §§ 13-1203(A)(2) and 13-1204(A)(2) and (B).

A few months later, Division Two issued an opinion, State v. Rineer, 131 Ariz. 147, 639 P.2d 337 (App.1981), which addressed the same issue: instructions on lesser included offenses as applied to a charge of aggravated assault. Rineer...