State v. Gendron
| Decision Date | 29 March 1990 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 804 P.2d 95,166 Ariz. 562 |
| Parties | STATE of Arizona, Appellee, v. Anthony Joseph GENDRON, Appellant. 88-1236. |
| Court | Arizona Court of Appeals |
Review Granted in Part and Denied in Part Feb. 5, 1991.
Robert K. Corbin, Atty. Gen. by Jessica G. Funkhouser, Chief Counsel, Criminal Div., and Gerald R. Grant, Asst. Atty. Gen., Phoenix, for appellee.
Dean W. Trebesch, Maricopa County Public Defender by Garrett W. Simpson, Deputy Public Defender, Phoenix, for appellant.
Appellant Anthony Joseph Gendron (defendant) appeals from his convictions of unlawful flight from a law enforcement vehicle, aggravated assault and criminal damage. He seeks reversal of his conviction for unlawful flight from a law enforcement vehicle because:
(1) the statute under which he was convicted is unconstitutionally vague;
(2) the trial court improperly defined "wilfully";
(3) the trial court erred by refusing to instruct the jury on justification and mistake of fact theories;
(4) the trial court erred by precluding evidence that police officers physically abused defendant after his arrest, and
(5) the trial court erred by refusing to instruct the jury on the lesser included offense of failure to obey a police officer.
Defendant seeks to reverse the aggravated assault and criminal damage convictions because the trial court erred by:
(1) failing to instruct the jury on justification and mistake of fact theories, and
(2) precluding evidence of the police officers' alleged abuse.
On April 1, 1988, Department of Public Safety Sergeant William Cramer observed defendant Gendron riding a motorcycle and passing stopped vehicles in the same lane of an off ramp. Cramer motioned him to stop on the ramp, but Gendron told Cramer that he was running out of gas. Instead of complying with the order, Gendron drove off the ramp and through a gas station. Cramer pursued him with his siren and emergency lights activated. Gendron finally stopped in a motel parking lot. Cramer approached defendant, now stationary, and said: "Get off that motorcycle or I'll blow you away." Gendron then sped away through stoplights and stop signs. Cramer chased, cornered and arrested him with the help of two other police officers. The police officers' motorcycles were damaged during the chase.
Defendant was convicted of violating A.R.S. § 28-622.01 which states in part:
Any driver of a motor vehicle who wilfully flees or attempts to elude a pursuing official law enforcement vehicle ... is guilty of a class 5 felony.
On appeal, defendant claims that the use of "wilfully" renders the statute unconstitutionally vague because there is no statutory definition of "wilfully" to give fair notice of the prohibited conduct. Gendron's assertion that there is no statutory definition of "wilfully" is incorrect. A.R.S. § 1-215(36) defines "wilfully" to mean: "that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists." The use of "wilfully" in various statutes has been upheld in several Arizona cases. See Shumway v. Farley, 68 Ariz. 159, 203 P.2d 507 (1949); State v. Schoner, 121 Ariz. 528, 591 P.2d 1305 (App.1979). Accord State v. Mather, 28 Wash.App. 700, 626 P.2d 44 (1981) (). Therefore, defendant's first claim fails.
Defendant next claims that the trial court improperly defined "wilfully" when it instructed the jury:
An act is wilfully done if it is done voluntarily and intentionally.
Intentionally, or with the intent to means, with respect to a result or to conduct described by a statute defining an offense, that a person's objective is to cause that result or to engage in that conduct.
Knowingly means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware or believes that his or her conduct is of that nature or that the circumstance exists. It does not require any knowledge of the unlawfulness of the act or omission.
(Emphasis added.) Defendant contends that "intentionally" denotes a lower standard of culpability than "wilfully" and violates his "right to be tried under a more stringent standard" which he states as "the willful state of mind." Defendant is incorrect. The definition of "wilfully" in A.R.S. § 1-215(36) is equivalent to the definition of "knowingly" given in A.R.S. § 13-105(6). If acting knowingly (and by definition wilfully) suffices to establish an element of a crime, that element is also established by evidence that a person acts intentionally. A.R.S. § 13-202(C). Thus, a definition which states that wilfulness can be proven by evidence of intentional behavior complies with A.R.S. § 13-202 and does not constitute error. Accord Shumway v. Farley, supra ().
The trial court refused to instruct the jury on justification and mistake of fact theories. Gendron claims on appeal that these instructions should have been given because the illegality of Cramer's threat to kill him justifies his flight because of fear for his own safety. 1 He asserts that any mistake he made regarding Cramer's threat negated the required "wilful" mental state.
Gendron admitted that he disobeyed Cramer's initial command to pull over and get off the motorcycle. He did not pull over when Cramer turned on his siren and lights and thereby violated § 28-622.01. His reaction to Cramer's threat cannot justify his flight before Cramer's threat. 2 Therefore, any error by refusing the instructions for the unlawful flight committed before the threat is harmless.
The state sought by a motion in limine to limit evidence that the police officers physically abused defendant after his arrest. The state argued that the evidence was irrelevant to whether Gendron unlawfully fled from the officer. The trial court granted the motion. Gendron argues on appeal that this evidence was relevant to help him "complete the story" that he did not flee from Cramer wilfully but only out of fear due to Cramer's threat that he would be blown off the motorcycle if he did not get off it.
The evidence was uncontroverted that Gendron fled from Cramer before the threat, thereby violating A.R.S. § 28-622.01. The fact that Cramer threatened him after he initially fled has no bearing on his state of mind when he began his flight. Similarly, whether defendant's fears were realized by the alleged assault has no relevance to why he initially fled from Cramer. The trial court acted within its discretion by excluding this evidence.
Gendron's requested jury instruction on failure to obey a police officer was refused. He now claims this was error because failure to obey a police officer is a lesser included offense of unlawful flight from a law enforcement vehicle. Failure to obey a lawful order of a police officer is defined by A.R.S. § 28-622: "No person shall wilfully fail or refuse to comply with any lawful order or direction of any police officer invested by law with authority to direct, control or regulate traffic."
An instruction given for a lesser included offense is proper when (1) the lesser offense is composed of some but not all of the elements of the greater offense so that it is impossible to commit the greater without committing the lesser offense and (2) the evidence supports an instruction on the lesser offense. State v. Bay, 150 Ariz. 112, 117, 722 P.2d 280, 285 (1986), citing State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983). A lesser included offense instruction is inappropriate when the evidence is such that the defendant can only be guilty of the crime charged or not guilty at all. State v. Williams, 144 Ariz. 479, 486, 698 P.2d 724, 731 (1985).
It is undisputed that Gendron failed to stop his motorcycle when he was pursued by Cramer. The only issue is whether defendant was justified in doing so. If he is guilty, he can only be guilty of the offense charged and no other. We find no error in refusing the instruction.
Gendron claims that he should have been allowed to present a justification defense to the jury for the aggravated assault and criminal damage counts. 3 He claims that after stopping his original flight, he fled from Cramer the second time only out of fear for his life. He claims that this fear negated any criminal state of mind for the aggravated assault and criminal damage charges resulting from his second flight. He requested the following instructions in support of this defense:
A person is not justified in using deadly physical...
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