State v. Juarez-Orci

• Decision Date: 30 January 2015
• Docket Number: No. 2 CA–CR 2013–0513.,2 CA–CR 2013–0513.
• Citation: 342 P.3d 856,236 Ariz. 520,705 Ariz. Adv. Rep. 4
• Parties: The STATE of Arizona, Appellee, v. Jose Raul JUAREZ–ORCI, Appellant.
• Court: Arizona Court of Appeals

236 Ariz. 520

342 P.3d 856

705 Ariz. Adv. Rep. 4

The STATE of Arizona, Appellee

v.Jose Raul JUAREZ–ORCI, Appellant.

No. 2 CA–CR 2013–0513.

Court of Appeals of Arizona, Division 2.

Jan. 30, 2015.

Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix, By Michael T. O'Toole, Assistant Attorney General, Phoenix, Counsel for Appellee.

Lori J. Lefferts, Pima County Public Defender, By Michael J. Miller, Assistant Public Defender, Tucson, Counsel for Appellant.

Judge ESPINOSA authored the opinion of the Court, in which Presiding Judge MILLER and Chief Judge ECKERSTROM concurred.

OPINION

ESPINOSA, Judge:

¶ 1 After a jury trial, Jose Juarez–Orci was convicted of attempted second-degree murder, aggravated assault with a deadly weapon, two counts of aggravated assault causing temporary/substantial disfigurement, one count of aggravated assault in violation of a protection order, and one count of aggravated assault committed as an act of domestic violence, all perpetrated against his wife, J., on one occasion. All counts were deemed “dangerous offense[s]” involving a deadly weapon or dangerous instrument, a knife. On appeal, Juarez–Orci challenges only the trial court's jury instruction on attempted second-degree murder, arguing the instruction improperly informed the jury that it could find Juarez–Orci guilty of attempted second-degree murder if it found he knew his conduct would cause serious physical injury. We agree and reverse that conviction.

Factual and Procedural Background

¶ 2 We state the facts in the light most favorable to sustaining the verdict. See State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198 (1993). Juarez–Orci and J. were married in 2007 and subsequently had three children. They separated in March 2012, in part because Juarez–Orci did not want J. to “go out” with her friends. According to J., he was “very possessive [and] very jealous,” and threatened J. that if she went out, “something would happen to ... the children.” He also told her “he didn't want to see [her] anymore, and if he saw [her], he would beat [her] up.”¹

¶ 3 J. entered a domestic violence shelter, and, apparently due to fears that Juarez–Orci would take the children to Mexico and not return, she procured an order of protection. Although she stayed at the shelter at night, she frequently went to her home during the day. In April, J. and two friends arrived at the house, and J. received a call from Juarez–Orci. J. asked him why the front door was bolted, thereby indirectly letting him know she was home, and told him, “[Y]ou know fully well that you can't be over here.”

¶ 4 After bringing groceries in, J. went back into the garage to close the garage door and saw Juarez–Orci pull up in his truck and get out “with a look of anger on his face.” J. stepped back into the house, closing the door between the house and the garage, and told her friends, “Call the police, he's coming,” and began dialing 9–1–1 on her telephone. At that moment, Juarez–Orci “knocked [the door] down,” and “fell to the floor” from the force of his entry. He then accosted J. repeating, “[w]e need to talk,” and “grabbed [her with] force.” J. repeatedly told him to leave, but he held her by the shoulder with one hand and began to stab her with a drywall knife.² The first injury was to her face. J. tried to calm Juarez–Orci by embracing him and telling him, “I love you a lot. I'll stay with you.” He responded that he “couldn't live ... [w]ithout the children, ... without his family.” He then said, “ ‘No,’ and threw [her] to the floor.”

¶ 5 Juarez–Orci began to hit J., and then grabbed her by her hair and “slam[med]” her face against the floor “[m]any times.” J. screamed, and he pulled her head back and put the knife against her neck. She grabbed the knife and the two began struggling over it. At some point the knife was bent. Juarez–Orci then got up, dragged J. by the hair to the kitchen, and began searching through the cabinets. J. got to her feet and tried to prevent Juarez–Orci from opening the drawer containing knives. When he opened it, J. ran out of the house and to a neighbor's house. Juarez–Orci then left in his truck.

¶ 6 J. sustained “multiple lacerations” and puncture wounds

. She had an 8.5–centimeter laceration extending from her right jaw to her right ear lobe, which required multiple layers of stitches. She also had a neck wound that could have been lethal had it been deeper. On her forearm, J. had an approximately two-inch cut that exposed muscle tissue and required between fifteen to twenty stitches to close. J. further had contusions from blunt trauma, including to her forehead, and various abrasions. Some of J.'s injuries, puncture wounds on her hands and abrasions on her forearm, were reported to be “defensive wounds.”

¶ 7 After the attack, Juarez–Orci went to the home of E.P. and eventually told him he had gone to his wife's house and heard his wife and “a couple other women ... talking about him,” and “he kicked the door [and] ran inside.” Juarez–Orci said he and his wife argued and he remembered “cutting her on the arm.” He said he did not remember anything else. E.P. then called 9–1–1. He subsequently told a detective that Juarez–Orci had remembered “stabbing [J.] once in the arm” and had thought he had “stabbed her two or three times.”

¶ 8 Police officers found blood on the kitchen floor of J.'s residence and collected two knives, including Juarez–Orci's bent, blood-stained drywall knife. They also searched Juarez–Orci's truck and found his blood-stained shirt and blood stains on the steering wheel and elsewhere in the truck's interior. DNA³ from the knife blade, Juarez–Orci's shirt, and the steering wheel matched J.'s DNA. Juarez–Orci was thereafter indicted for attempted first-degree murder, aggravated assault with a deadly weapon or dangerous instrument, two counts of aggravated assault causing temporary but substantial disfigurement, first-degree burglary, aggravated assault in violation of a protection order, and aggravated assault committed as an act of domestic violence.

¶ 9 At trial, without objection, the court gave the following attempted second-degree murder jury instruction, in relevant part:

The crime of attempted second degree murder requires proof that the defendant intentionally committed any act that was a step in a course of conduct that the defendant planned would end or believed would end in the commission of second degree murder.

The crime of second degree murder requires proof of one of the following: 1. The defendant intentionally caused the death of another person or 2. The defendant caused the death of another person by conduct which the defendant knew would cause death or serious physical injury.

The court also instructed the jury that:

Serious physical injury includes physical injury which creates a reasonable risk of death, or which causes serious or permanent disfigurement, serious impairment of health, or loss or protracted impairment of any bodily organ or limb.

“Physical injury” means the impairment of a physical condition.

¶ 10 At the conclusion of the four-day trial, the jury found Juarez–Orci guilty of attempted second-degree murder, as a lesser-included offense of attempted first-degree murder, and all counts of aggravated assault.⁴ The trial court imposed concurrent, presumptive prison terms, the longest of which is for 10.5 years. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, and 13–4033(A)(1).⁵

Discussion

Standard of Review

¶ 11 Juarez–Orci argues the trial court erred by instructing the jury that it could find him guilty of attempted second-degree murder if it found he had intentionally or knowingly caused serious physical injury without causing death and asserts his conviction must be reversed on that charge. Juarez–Orci did not object to the instruction and therefore has forfeited the right to seek relief for all but fundamental, prejudicial error, and we limit our review accordingly. Ariz. R.Crim. P. 21.3(c) ; State v. Henderson, 210 Ariz. 561, ¶¶ 19–20, 115 P.3d 601, 607 (2005) ; see also State v. Brown, 233 Ariz. 153, ¶ 19, 310 P.3d 29, 36 (App.2013) (untimely objection first raised in motion for new trial does not preserve issue for appeal). Accordingly, Juarez–Orci “ ‘bears the burden to establish that (1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice.’ ” State v. James, 231 Ariz. 490, ¶ 11, 297 P.3d 182, 185 (App.2013), quoting State v. Bearup, 221 Ariz. 163, ¶ 21, 211 P.3d 684, 689 (2009).

Attempted Second–Degree Murder Instruction

¶ 12 We review jury instructions de novo to determine whether they accurately reflect the law. State v. Cox, 217 Ariz. 353, ¶ 15, 174 P.3d 265, 268 (2007). A challenged instruction should be viewed in its entirety and need only be “ ‘substantially free from error’ ” in order to support a conviction. State v. Zaragoza, 221 Ariz. 49, ¶ 15, 209 P.3d 629, 633 (2009), quoting Cox, 217 Ariz. 353, ¶ 15, 174 P.3d at 268.

¶ 13 Both Juarez–Orci and the state agree that the instructions given in this case “are not materially different” from those provided in State v. Dickinson, 233 Ariz. 527, 314 P.3d 1282 (App.2013). The instruction at issue in Dickinson provided that the jury could find the defendant guilty of attempted second-degree murder if it found he had “believed [his] act was a step in the course of conduct planned to culminate in the commission of the crime of second degree murder,” which offense it defined as follows:

The crime of second degree murder has the following elements: Number one, the defendant caused the death of another person; and number two, the defendant either, A, did so intentionally or, B, knew that his conduct would cause death or serious physical injury.

233 Ariz. 527, ¶¶ 7–8, 314 P.3d at 1284–85. We determined that this instruction erroneously conveyed to the jury that the defendant could be convicted of attempted second-degree murder based on an intent to...