State v. Griffin

Decision Date21 November 2002
Docket NumberNo. 2 CA-CR 2001-0020.,2 CA-CR 2001-0020.
PartiesThe STATE of Arizona, Appellee, v. Colten Eugene GRIFFIN, Appellant.
CourtArizona Court of Appeals

Janet Napolitano, Arizona Attorney General, By Randall M. Howe and Joseph L. Parkhurst, Tucson, for Appellee.

Isabel G. Garcia, Pima County Legal Defender, By Joy Athena and Stephan J. McCaffery, Tucson, for Appellant.

OPINION

PELANDER, J.

¶ 1 After a jury trial, appellant Colten Eugene Griffin was convicted of possessing a deadly weapon as a prohibited possessor in violation of A.R.S. § 13-3102(A)(4). He was acquitted of cruel mistreatment of an animal. The trial court sentenced Griffin to a presumptive four-and-one-half-year prison term and ordered him to pay restitution. Griffin contends his conviction improperly required the retroactive application of A.R.S. § 13-904(A)(5) to his prior 1992 felony conviction and, therefore, violated A.R.S. § 1-244 and his federal and state constitutional rights to due process. U.S. Const. amend. V and XIV; Ariz. Const. art. II, § 4. We agree that, absent an express legislative declaration of retroactive intent, retroactive application of § 13-904(A)(5) impermissibly altered the legal consequences of Griffin's 1992 conviction, which had not suspended his vested right to possess a firearm. Therefore, we vacate his conviction. Because we further agree with Griffin, as does the state, that the trial court erred in imposing restitution, we also vacate that order.

BACKGROUND

¶ 2 On appeal, we generally view the facts in the light most favorable to sustaining the verdict. State v. Carrasco, 201 Ariz. 220, ¶ 1, 33 P.3d 791, ¶ 1 (App.2001). Because Griffin also challenges the trial court's refusal to instruct the jury on his proffered justification defense, however, we view the evidence in the light most favorable to him. See State v. Rodriguez, 192 Ariz. 58, ¶ 20, 961 P.2d 1006, ¶ 20 (1998); State v. Lucas, 146 Ariz. 597, 603, 708 P.2d 81, 87 (1985). In any event, although the parties presented conflicting evidence at trial about the circumstances that led to Griffin's arrest and conviction, any factual discrepancies are not material to our ruling on the retroactivity issue.

¶ 3 In February 2000, Griffin and his neighbor, John Lumia, had an ongoing easement dispute involving their remote, adjoining property in Vail, Arizona. Griffin and his girlfriend, Carol Brockman, drove past Lumia, who was walking his dog along the roadway that ran between their parcels. As Griffin passed Lumia, both parties angrily exchanged words. By the time Griffin turned his truck around and headed back in the other direction, Lumia had obtained a rifle and had positioned his truck across the roadway to block Griffin's travel. Griffin and Brockman testified that, when they had approached Lumia's truck, Lumia had pointed his rifle at them and they had feared he would shoot them.

¶ 4 Griffin eventually drove around Lumia's truck and returned to his property. According to Griffin and Brockman, Lumia continued to point the rifle at them while they were on Griffin's land. They wanted to call the sheriff's department to report the incident and seek help, but their cellular telephone only had service in an area near the main access road that was exposed to Lumia's rifle. Griffin retrieved Brockman's shotgun from inside a trailer on his property in order to "draw fire" from Lumia while Brockman called the authorities. Griffin positioned himself in his driveway while Brockman made the telephone call, but did not aim the shotgun at Lumia.

¶ 5 As Griffin stood in his driveway, Lumia's dog ran across Griffin's property, chasing and nipping at one of the goats Griffin raised on the land. Griffin shot the dog in the rear, according to his testimony, to frighten and discourage it from returning to his land. The dog was treated and eventually recovered.

DISCUSSION
I. Application of § 13-904(A)(5) to Griffin's 1992 Conviction

¶ 6 Griffin contends retroactively applying § 13-904(A)(5) to his 1992 conviction, thereby suspending his right to possess a firearm and consequently changing his status to that of a prohibited possessor under A.R.S. § 13-3101(A)(6)(b), violates § 1-244 and his federal and state due process rights. By failing to raise this claim below, Griffin waived it absent fundamental error. See State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991); State v. Tison, 129 Ariz. 526, 535, 633 P.2d 335, 344 (1981); State v. Calabrese, 157 Ariz. 189, 191, 755 P.2d 1177, 1179 (App.1988). "Fundamental error is `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 received a fair trial.'" State v. Bible, 175 Ariz. 549, 572, 858 P.2d 1152, 1175 (1993), quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). If Griffin's claim is correct, he would not have been a prohibited possessor at the time of this offense, and his conviction under § 13-3102(A)(4) as a prohibited possessor would amount to fundamental error.

¶ 7 Section 1-244 provides that "[n]o statute is retroactive unless expressly declared therein." In other words, "§ 1-244 requires an express statement of retroactive intent before a statute will be considered retroactive." San Carlos Apache Tribe v. Superior Court, 193 Ariz. 195, ¶ 14, 972 P.2d 179, ¶ 14 (1999). Under § 1-244, "[u]nless a statute is expressly declared to be retroactive, it will not govern events that occurred before its effective date." State v. Coconino County Superior Court, 139 Ariz. 422, 427, 678 P.2d 1386, 1391 (1984). Similarly, A.R.S. § 1-246 provides that, in the criminal context, an "offender shall be punished under the law in force when the offense was committed." Because the current version of § 13-904(A)(5) does not expressly state that it is to be retroactively applied, we first must determine whether that statute was retroactively applied to Griffin's 1992 conviction.

¶ 8 We look to the date of the offense, rather than the date of adjudication, to determine whether a statute is being retroactively applied. In re Shane B., 198 Ariz. 85, ¶ 7, 7 P.3d 94, ¶ 7 (2000). Griffin previously was convicted in Pinal County of aggravated assault, a class three, nondangerous felony, for an offense committed in February 1992. At that time, § 13-904(A) provided:

A conviction for a felony suspends the following civil rights of the person sentenced:
1. The right to vote.
2. The right to hold public office of trust or profit.
3. The right to serve as a juror.
4. During any period of imprisonment any other civil rights the suspension of which is reasonably necessary for the security of the institution in which the person sentenced is confined or for the reasonable protection of the public.1

1977 Ariz. Sess. Laws, ch. 142, § 49 (adopted as A.R.S. § 13-804); 1978 Ariz. Sess. Laws, ch. 201, § 116 (renumbering § 13-804 as § 13-904). Thus, Griffin did not lose his civil right to possess a firearm as a result of his 1992 conviction.

¶ 9 Moreover, at the time of Griffin's 1992 offense, former § 13-3101(6)(b) provided that a "`[p]rohibited possessor' means any person... [w]ho has been convicted within or without this state of a felony involving violence or possession and use of a deadly weapon or dangerous instrument and whose civil rights have not been restored." 1991 Ariz. Sess. Laws, ch. 316, § 2. Although the record before us does not reflect the underlying circumstances of Griffin's 1992 conviction, the state does not claim that offense involved violence or the use of any weapon. Accordingly, we presume that Griffin would not have been classified as a "prohibited possessor" under former § 13-3101(6), and the state does not argue otherwise.2

¶ 10 In 1994, both §§ 13-904 and 13-3101 were amended. 1994 Ariz. Sess. Laws, ch. 200, §§ 5, 18. The current version of § 13-904(A) provides that conviction for a felony suspends not only those rights listed in ¶ 8 above, but also the convicted felon's right "to possess a gun or firearm." § 13-904(A)(5). And § 13-3101(A)(6)(b) now provides that a "`[p]rohibited possessor' means any person... [w]ho has been convicted within or without this state of a felony ... and whose civil right to possess or carry a gun or firearm has not been restored." Therefore, as Griffin correctly deduces, if he can be considered a "prohibited possessor" under current § 13-3101(A)(6)(b) as a felon "whose civil right to possess or carry a gun or firearm has not been restored," it is because he lost that right in some way other than by application of the version of § 13-904(A) in effect at the time he committed his prior offense.

¶ 11 Griffin maintains the only way he could have lost the right to possess a firearm is through retroactive application of current § 13-904(A)(5) to his 1992 conviction.3 In its answering brief, the state apparently agreed, stating that the 1994 amendments to §§ 13-904 and 13-3101 "retroactively applied to [Griffin's] prior felony conviction." Citing State v. Olvera, 191 Ariz. 75, 952 P.2d 313 (App.1997), the state contended the amendments "could be applied retroactively" because they were "regulatory in nature," only "affected the consequences of [Griffin's] future behavior" rather than increasing the punishment for his prior conviction, and thus, did not violate the federal and state constitutional prohibitions against ex post facto laws. See U.S. Const. art. I, § 10, cl. 1; Ariz. Const. art. II, § 25.

¶ 12 The state modified its position at oral argument, arguing that the 1994 statutory amendments had not been retroactively applied to Griffin but, rather, that his 1992 conviction merely conferred a status on him, the consequences of which were subject to legislative change. Relying on People v. Mills, 6 Cal.App.4th 1278, 8 Cal.Rptr.2d 310 (1992), the state now argues that the 1994 amendments permissibly altered...

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