State v. Doss
| Decision Date | 14 April 1998 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 966 P.2d 1012,192 Ariz. 408 |
| Parties | , 267 Ariz. Adv. Rep. 5 STATE of Arizona, Appellee, v. Jackson James DOSS, Appellant. 97-0416. |
| Court | Arizona Court of Appeals |
¶1 Jackson James Doss ("defendant") appeals his convictions and sentences for one count of aggravated assault; seven counts of endangerment; and one count of cruelty to animals. We reverse the endangerment convictions because of an erroneous jury instruction. We affirm the remaining convictions and sentences.
¶2 Early in the morning of April 17, 1996, police observed defendant walking along a street in North Phoenix carrying a rifle or shotgun case. When officers called to defendant, he ran away. An officer in his police car followed defendant and saw him run between houses. As the officer exited the car, defendant opened fire. At least five rounds struck the vehicle.
¶3 Defendant fled to the backyard of a home occupied by a couple, their three minor daughters, and the husband's parents. While defendant was at that location, police decided to deploy a dog, Hunter, who was trained to grab and hold a suspect until he could be arrested. When Hunter entered the backyard, he was shot five times by defendant and later died. Defendant also fired two shots into the house, which was still occupied by all seven members of the family. The family was quickly evacuated. Subsequently, defendant entered the house and hid. He was arrested later in the morning.
¶4 Defendant was indicted on one count of aggravated assault, a class 2 felony, for shooting at the police officer; seven counts of endangerment, class 6 felonies, for firing into the family's home; one count of second-degree burglary, a class 3 felony, for entering the yard; and one count of interfering with a working animal, a class 6 felony, based upon the death of Hunter. The jury found defendant guilty of the aggravated assault and endangerment counts and found them to be dangerous offenses. With regard to the charge of interfering with a working animal, the jury found defendant guilty of the lesser-included offense of cruelty to animals. The jury was unable to reach a verdict on the second-degree burglary charge. Subsequently, defendant admitted two historical prior felony convictions.
¶5 The trial court sentenced defendant to an enhanced, presumptive term of 15.75 years imprisonment on count 1, aggravated assault on a police officer. The court imposed enhanced, aggravated terms of 4.5 years on two of the endangerment counts, to be served consecutively to each other and to the sentence for aggravated assault. The court also imposed a consecutive six-month sentence on the charge of cruelty to animals, a class 1 misdemeanor. The court imposed enhanced, presumptive sentences of 3.75 years for each of the other five endangerment convictions.
¶6 Defendant filed a timely notice of appeal. He raises the following issues:
1. Whether the trial court's instruction on endangerment was erroneous;
2. Whether substantial evidence supported his convictions for endangerment;
3. Whether fundamental error occurred when the trial court failed to instruct the jury on misdemeanor endangerment as a lesser-included offense of each endangerment charge;
4. Whether the court erred in denying his request to instruct the jury on the defense of justification to the charge of interfering with a working animal; and
5. Whether his sentences for endangerment on counts 5-9 are to be served concurrently with other sentences.
¶7 Ariz. Rev. Stat. Ann. ("A.R.S.") § 13-1201 defines the offense of endangerment:
A. A person commits endangerment by recklessly endangering another person with a substantial risk of imminent death or physical injury.
B. Endangerment involving a substantial risk of imminent death is a class 6 felony. In all other cases, it is a class 1 misdemeanor.
One of the elements of endangerment is that the victim must be placed in actual substantial risk of imminent death or physical injury. State v. Morgan, 128 Ariz. 362, 367, 625 P.2d 951, 956 (App.1981).
¶8 With regard to the seven endangerment counts, the trial court instructed the jury:
Each of the charges of endangerment requires proof beyond a reasonable doubt that the defendant consciously disregarded a substantial risk that his conduct could cause imminent death of the person named in each charge.
The risk must be of such a nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. 1
Defendant objected, arguing that the instruction failed to state the element that the victim must be placed in actual substantial risk of imminent death.
¶9 On appeal, defendant argues that the erroneous instruction requires reversal of all of his endangerment convictions. We agree.
The instruction given amounted to a comprehensive statement of the culpable mental state--"recklessness"--required by the endangerment statute. In pertinent part, A.R.S. § 13-105(9)(c) states:
"Recklessly" means, with respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation....
The court's instruction recited virtually the entire definition of "recklessly," but it failed to describe the act and result that were required to support defendant's criminal liability. A proper endangerment instruction would inform the jury that the charge required proof that defendant (1) disregarded a substantial risk that his conduct would cause imminent death of a victim (the culpable mental state) and (2) that his conduct did in fact create such a substantial risk as to each victim (the required act).
¶10 Contrary to the state's position, the unelaborated reference to "conduct" in the court's instruction did not make the second element clear. Indeed, the phrase "conduct [that] could cause imminent death" may have suggested to the jury that defendant could be convicted whether or not the victims were actually placed at risk. The erroneous instruction was not harmless; it undermined defendant's argument that he was not guilty because he had not placed the victims in actual substantial risk of imminent death. As a result, defendant's convictions on counts 4 through 10 must be reversed and remanded.
¶11 Defendant also argues that the trial court erred in denying his Rule 20 motion for judgment of acquittal on the endangerment charges because there was insufficient evidence that the seven members of the family were placed in "actual substantial risk." Morgan, supra.
¶12 A judgment of acquittal is warranted where there is no "substantial evidence to warrant a conviction." Rule 20, Arizona Rules of Criminal Procedure. "Substantial evidence is more than a mere scintilla and is such proof that 'reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.' " State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990), quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980).
¶13 In responding to defendant's Rule 20 motion, the state admitted that it was "ambiguous" as to where the members of the family were located in the house at the time of the shooting, but argued that, because of the possibility of ricochets, all of them were placed in actual danger by defendant's conduct. We, too, find the record ambiguous on this issue, and we therefore find no reason to order an acquittal rather than a retrial on the endangerment counts.
¶14 Defendant argues that the trial court erred in failing to instruct the jury on endangerment creating a risk of imminent physical injury, as a lesser included offense of endangerment as charged. See A.R.S. § 13-1201. Defendant did not request such an instruction, and thus argues on appeal that the trial court's failure to give the instruction constituted fundamental error. Because we are remanding for retrial, we need not reach this issue. Any issue regarding this lesser-included offense instruction should be addressed by the trial court on retrial after remand. See generally State v. Krone, 182 Ariz. 319, 323, 897 P.2d 621, 625 (1995) (); but see State v. Cruz, 189 Ariz. 29, 32, 938 P.2d 78, 81 (App.1996) ().
¶15 Defendant argues that the trial court erred in denying his request that the jury be instructed on justification as a defense to the charge of interfering with a working animal. Defendant contends on appeal that evidence supported his claim that he was entitled to use force against the application of excessive force by police when Hunter was...
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