State v. Edmisten

• Decision Date: 23 March 2009
• Docket Number: No. 2 CA-CR 2007-0074.,2 CA-CR 2007-0074.
• Citation: 220 Ariz. 517,207 P.3d 770
• Parties: The STATE of Arizona, Appellee, v. Shawn de Nean EDMISTEN, Appellant.
• Court: Arizona Court of Appeals

207 P.3d 770

220 Ariz. 517

The STATE of Arizona, Appellee, v. Shawn de Nean EDMISTEN, Appellant.

No. 2 CA-CR 2007-0074.

Court of Appeals of Arizona, Division 2, Department A.

March 23, 2009.

Terry Goddard, Arizona Attorney General By Kent E. Cattani and David A. Sullivan, Tucson, Attorneys for Appellee.

Robert J. Hirsh, Pima County Public Defender By Frank P. Leto, Tucson, Attorneys for Appellant.

HOWARD, Presiding Judge.

¶ 1 After a jury trial, Shawn Edmisten was convicted of several felony offenses including burglary, aggravated assault, kidnapping, armed robbery, and drive-by shooting. On appeal, Edmisten contends the trial court erred by giving erroneous jury instructions and the prosecutor engaged in misconduct during closing argument. For the following reasons, we affirm.

Facts

¶ 2 "We view the facts in the light most favorable to sustaining the convictions." State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App.2006). Armed with various weapons, Edmisten and three other perpetrators invaded a home, with the intent to steal drugs, by kicking in a door and attacking the residents inside. The perpetrators found no drugs but stole two handguns and left in a car. When a sheriff's deputy tried to pull their car over, Edmisten pointed a handgun at the deputy. During an ensuing car chase, Edmisten and one of his codefendants shot at two patrol cars and one passing motorist. The innocent motorist was struck by a bullet and suffered severe injuries. The car containing Edmisten and the others eventually crashed into a ditch, and the occupants fled into the desert.

¶ 3 Edmisten approached a house carrying an AK-47 rifle. The residents of the house, a family with two children, were sitting on the back porch. Edmisten demanded car keys and then ordered everyone into the house. He told the family that the police were after him and he did not want to get caught. After learning one of the residents had called 911, Edmisten himself called 911 and told the operator he was the owner of the house and "everything was fine, that the person moved on." He then ripped the telephone from the wall and removed the battery from another, portable telephone. Edmisten also took control of a cellular telephone, which he used to call someone to ask for a ride. He then watched the six o'clock television news to see coverage of the events, and he asked the residents about different transportation possibilities including whether he could ride a horse they owned and whether they owned an all-terrain vehicle. After one of the residents asked him to put the rifle down so as not to make everyone nervous, Edmisten removed the clip, hid the weapon behind a couch, and put the clip under a cushion. He also asked for and received a change of clothes.

¶ 4 Edmisten then discovered there was a portable telephone on the back porch and ordered one of the residents to retrieve it. The resident saw sheriff's deputies outside and informed them that Edmisten was in the house. The deputies entered and arrested Edmisten. After he was in custody, Edmisten told a sergeant that he had taken LSD and that the emergency lights on the sergeant's car were "wigging him out." The deputy who had initially tried to stop the perpetrators' car drove to where Edmisten was being held and identified Edmisten as the person who had aimed a gun at him.

¶ 5 At trial, Edmisten's primary defense was that he had been involuntarily intoxicated at the time of the crimes. Edmisten's former girlfriend, Yolanda V., testified that, earlier on the day of the offenses, she had secretly slipped two Ecstasy pills into his drink. Yolanda testified that Ecstasy made Edmisten disoriented, uncomfortable because it prevented him from urinating, and incapable of driving a car. The state challenged Yolanda's credibility by eliciting testimony that she had not come forward with this evidence until approximately five months after the date of the offenses and by pointing out inconsistencies in her story with respect to the precise date she had allegedly given Edmisten the drug. The state also suggested Yolanda's motive for testifying was that she wanted Edmisten to pay child support for the child they had together.

Jury Instructions

¶ 6 Edmisten first argues the trial court's instructions on involuntary intoxication were "incomplete, confusing, and misled the jury as to the State's and defendant's respective burdens of proof." Division One of this court has described the involuntary intoxication defense as permitting a defendant "to negate the requisite state of mind for a criminal act." State v. McKeon, 201 Ariz. 571, ¶ 20, n. 2, 38 P.3d 1236, 1240 & n. 2 (App.2002); cf. A.R.S. § 13-503 (prohibiting voluntary intoxication as defense "for any criminal act or requisite state of mind"). As a general matter, the burden in a criminal trial is on the state to prove the defendant's guilt beyond a reasonable doubt. See State v. Portillo, 182 Ariz. 592, 594, 898 P.2d 970, 972 (1995). This burden includes any required mental state. See State v. Amaya-Ruiz, 166 Ariz. 152, 173, 800 P.2d 1260, 1281 (1990) (state has burden to prove every element of offense including mental state). And the statutes do not expressly provide for any burden-shifting when a defendant offers evidence of involuntary intoxication in an attempt to negate the culpable mental state for the offenses charged. See McKeon, 201 Ariz. 571, n. 2, 38 P.3d at 1240 n. 2 (noting legislature "neither abolished the State's burden of proving that a defendant possessed the requisite state of mind at the time of the offense, nor abolished the defendant's opportunity to introduce evidence to counter the State's evidence").

¶ 7 The state, however, impliedly argues involuntary intoxication is an affirmative defense and relies on State v. Figueroa, 151 Ariz. 213, 215, 216, 726 P.2d 629, 631, 632 (App.1986), for the proposition that the burdens of proof and persuasion are on the defendant. But since Figueroa was decided, the legislature has abolished all common law affirmative defenses and provided that any affirmative defense can only exist by statute. See A.R.S. § 13-103(A); 1997 Ariz. Sess. Laws, ch. 136, § 3. Today, no Arizona statute explicitly makes involuntary intoxication an affirmative defense. And, pursuant to § 13-103(B), the term "`affirmative defense' . . . does not include . . . any defense that either denies an element of the offense charged or denies responsibility." Thus, involuntary intoxication is not an affirmative defense, and Figueroa is no longer good authority for determining the applicable burden of proof and persuasion.

¶ 8 We conclude, consistent with McKeon, that involuntary intoxication is a defense that "denies an element of the offense charged or denies responsibility" as provided in § 13-103(B). See McKeon, 201 Ariz. 571, ¶ 20, n. 2, 38 P.3d at 1240, n. 2. Therefore, when the defendant offers evidence of involuntary intoxication, the burden remains on the state to prove beyond a reasonable doubt that the defendant is guilty of the offenses charged, which necessarily includes proving the requisite mental state beyond a reasonable doubt.¹ See Portillo, 182 Ariz. at 594, 898 P.2d at 972; Amaya-Ruiz, 166 Ariz. at 173, 800 P.2d at 1281.

¶ 9 At Edmisten's request, the trial court provided the following instruction on involuntary intoxication:

Intoxication resulting from the involuntary use of alcohol or drugs may be considered by you with respect to the culpable mental state required to prove an offense. The requisite mental states are "intentionally" or "with intent to[,"] "knowingly[,"] "recklessly" and "with premeditation[."]

If you find that the defendant became intoxicated solely as a result of drugs or alcohol administered to him against his will or against his knowledge, you should then consider whether the degree of intoxication precluded the defendant from acting with a particular mental state or states required to establish an offense.

Edmisten argued below that involuntary intoxication was similar to a justification defense and that the "jurors should [also] be instructed that the burden is on the State to affirmatively disprove the intoxication [defense]." The court rejected Edmisten's analysis and his oral request for this separate instruction but instructed the jury on the state's burden to prove defendant's guilt beyond a reasonable doubt using the language mandated in Portillo, 182 Ariz. at 596, 898 P.2d at 974. The court also instructed that each charged offense required proof of particular elements including a specific mental state.

¶ 10 On appeal, Edmisten argues the trial court erred in failing to instruct the jury on the level of proof necessary to show involuntary intoxication, failing to instruct that the state had the burden to prove every element of the offenses beyond a reasonable doubt, and failing to instruct on the operative effect of a finding of involuntary intoxication by explaining that, if the jurors "had a reasonable doubt about the defendant's mental state based on his involuntary intoxication, they could acquit or find him guilty of a lesser offense."² But Edmisten did not raise these issues below, and his objection to the court's refusal to instruct that the state must affirmatively disprove intoxication did not preserve these new claims of error. See Ariz. R.Crim. P. 21.3(c) (grounds of objection to instruction must be stated distinctly); see also State v. Schurz, 176 Ariz. 46, 54, 859 P.2d 156, 164 (1993) (general objection to instruction does not preserve specific).

¶ 11 When a defendant fails to raise an objection below, we review for fundamental error. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005); see also Ariz. R.Crim. P. 21.3(c). Fundamental error involves "`error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have...