State v. Luviano

• Decision Date: 01 September 2021
• Docket Number: No. 2 CA-CR 2019-0102,2 CA-CR 2019-0102
• Citation: 52 Arizona Cases Digest 16,499 P.3d 350
• Parties: The STATE of Arizona, Appellee, v. Nicolas LUVIANO, Appellant.
• Court: Arizona Court of Appeals

52 Arizona Cases Digest 16

499 P.3d 350

The STATE of Arizona, Appellee,

v.Nicolas LUVIANO, Appellant.

No. 2 CA-CR 2019-0102

Court of Appeals of Arizona, Division 2.

Filed September 1, 2021

Mark Brnovich, Arizona Attorney General, Linley Wilson, Deputy Solicitor General/Section Chief of Criminal Appeals, By Mariette S. Ambri, Assistant Attorney General, Tucson, Counsel for Appellee

Joel Feinman, Pima County Public Defender, By Abigail Jensen, Assistant Public Defender, Tucson, Counsel for Appellant

Vice Chief Judge Staring authored the opinion of the Court, in which Presiding Judge Espinosa and Judge Eckerstrom concurred.

STARING, Vice Chief Judge:

¶1 Nicolas Luviano appeals from his convictions and sentences for resisting arrest and theft of means of transportation.¹ For the following reasons, we affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining the jury's verdicts and resolve all reasonable inferences against Luviano. See State v. Felix , 237 Ariz. 280, ¶ 30, 349 P.3d 1117 (App. 2015). In February 2018, an Arizona state trooper was checking license plate numbers of vehicles in a hotel parking lot to ascertain if any had been stolen. The hotel, which was adjacent to a freeway, was known by officers as a location where stolen vehicles were often located. The trooper noticed a car with "a temporary registration that was abnormally large" and determined it was associated with a fictitious vehicle identification number (VIN).² Through the windshield, the trooper was able to see the car's actual VIN and that its ignition system's shroud had been completely removed, exposing bare metal. The trooper subsequently confirmed the car had been stolen.

¶3 After detectives placed the car under surveillance, they saw Luviano "coming and going" between the car and a hotel room and loading items into the car. He eventually moved the car to another spot in the parking lot, and when he got out, officers attempted to apprehend him. Luviano got back into the car but then "jumped out and ran" after a sergeant pulled his vehicle directly behind the stolen car and activated his emergency lights. A foot pursuit ensued, and several officers detained Luviano after he attempted to jump over a fence.

¶4 After a jury trial, Luviano was convicted of theft of means of transportation, third-degree burglary, possession of burglary tools, and resisting arrest. He was sentenced to concurrent terms of imprisonment, the longest of which is 13.25 years. This appeal followed. We have jurisdiction pursuant to article VI, § 9 of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Resisting Arrest Instruction

¶5 Luviano first challenges the trial court's instruction on the elements of resisting arrest. Without any objection by Luviano, the court instructed the jury as follows:

The crime of resisting arrest requires proof that:

One, ... a peace officer, acting under official authority, sought to arrest either the defendant or some other person; and

Two, the defendant knew, or had reason to know, that the person seeking to make the arrest was a peace officer acting under color of such peace officer's official authority; and

Three, the defendant intentionally prevented or attempted to prevent the peace officer from making the arrest; and

Four, the means used by the defendant to prevent the arrest involved either the use or threat to use physical force or any other substantial risk of physical injury to either the peace officer or another.

¶6 Ordinarily, we review a trial court's decision to give a jury instruction for an abuse of discretion, and we reverse only "if the instructions, taken as a whole, misled the jurors." State v. Petrak , 198 Ariz. 260, ¶ 9, 8 P.3d 1174 (App. 2000). "[W]e review de novo whether [a] given instruction correctly states the law," viewing the instruction in its entirety. State v. Solis , 236 Ariz. 285, ¶ 6, 339 P.3d 668 (App. 2014) ; see State v. Rutledge , 197 Ariz. 389, ¶ 15, 4 P.3d 444 (App. 2000). And, we review constitutional issues de novo. See State v. West , 238 Ariz. 482, ¶ 12, 362 P.3d 1049 (App. 2015).

¶7 As noted, however, Luviano did not object to the instruction in question; we therefore review his claim solely for fundamental error. See State v. Escalante , 245 Ariz. 135, ¶ 12, 425 P.3d 1078 (2018). "[T]he first step in fundamental error review is determining whether trial error exists." Id. ¶ 21. A defendant who establishes error must then show "the error went to the foundation of the case," took from him a right essential to his defense, or was so egregious that he could not possibly have received a fair trial. Id. If a defendant only shows an error went to the foundation of the case or deprived him of a right essential to his defense, then he must also separately show prejudice resulted from the error. Id. If a defendant shows the error was so egregious he could not have received a fair trial, however, he has necessarily shown prejudice and must receive a new trial. Id.

¶8 "A person commits resisting arrest by intentionally preventing or attempting to prevent a person reasonably known to him to be a peace officer, acting under color of such peace officer's official authority, from effecting an arrest" by "[u]sing or threatening to use physical force against the peace officer or another," A.R.S. § 13-2508(A)(1), or "[u]sing any other means creating a substantial risk of causing physical injury to the peace officer or another," § 13-2508(A)(2). Violation of § 13-2508(A)(1) or (A)(2) is a class six felony.³ § 13-2508(B).

¶9 Luviano first contends the subsections of § 13-2508 enumerate separate offenses, with (A)(1) requiring use of physical force and (A)(2) requiring use of means other than physical force "creating a substantial risk of causing physical injury." He further argues "the instruction given in this case improperly conflate[s] the requirements of" these subsections, resulting in an "instruction on a non-existent theory of liability." Luviano also asserts "the State only presented evidence that he resisted arrest by using physical force" although he had only been charged under subsection (A)(2), and therefore the instruction allowed him to be convicted of an offense with which he was not charged. Finally, Luviano contends that if the instructions effected an amendment of the indictment, such an amendment "would [have] change[d] the nature of the offense," violating Rule 13.5(b), Ariz. R. Crim. P. ("Unless the defendant consents, a charge may be amended only to correct mistakes of fact or remedy formal or technical defects.").

¶10 The state primarily responds that the jury was "appropriately instructed ... with regard to the two manners of committing felony resisting arrest, as set forth in subsections (A)(1) and (A)(2)." The state also asserts that despite being charged only under subsection (A)(2), Luviano nonetheless "knew well before trial that § 13-2508(A)(1) was a basis for the resisting arrest charge, and [ ]he had a full and fair opportunity to prepare h[is] defense." (Alteration in original.) Moreover, the state argues the jury instruction as to subsection (A)(1) was permissible in cases such as this, where the charges were only effectively amended to reflect two different ways the "single unified offense " of resisting arrest could have been committed.

¶11 We first consider whether § 13-2508 provides for a single, unified offense with different modes of commission. "Our objective in interpreting statutes is to give effect to the legislature's intent." State v. Jurden , 239 Ariz. 526, ¶ 15, 373 P.3d 543 (2016). A statute's plain language is our primary means of determining legislative intent. See id. Thus, if a statute's language is unambiguous, "we apply it as written" and do not engage in any further analysis. Id.

¶12 The language of § 13-2508(A)(1) and (A)(2) plainly and unambiguously identifies felony resisting arrest as a unitary offense, setting out the means by which the offense may be committed. Subsection (A)(1) identifies "[u]sing or threatening to use physical force against the peace officer or another" as one means of committing the offense, and subsection (A)(2) proscribes "[u]sing any other means" that create "a substantial risk of causing physical injury to the peace officer or another." Moreover, even were we to conclude the language of the statute is not plain and unambiguous, applying the analysis from West , we would still find that felony resisting arrest is unitary.

¶13 Pursuant to West , in order to ascertain and follow the legislature's intent, we may consider: "(1) the title of the statute, (2) whether there [is] ‘a readily perceivable connection between the various acts’ listed in the statute, (3) whether those acts [are] ‘consistent with and not repugnant to each other,’ and (4) whether those acts might ‘inhere in the same transaction.’ " 238 Ariz. 482, ¶ 20, 362 P.3d 1049 (quoting State v. Manzanedo , 210 Ariz. 292, ¶ 8, 110 P.3d 1026 (App. 2005) ). Here, the statute's title, "Resisting arrest; classification; definition," points to a single offense of resisting arrest, the related felony and misdemeanor classifications, and the definition of "passive resistance" pertinent to subsection (A)(3).⁴ § 13-2508. Moreover, the acts listed in (A)(1) and (A)(2) are connected, describing the different means by which one might commit the offense of felony resisting arrest. And, the means of resisting arrest identified in (A)(1) and (A)(2) are "consistent with and not repugnant to each other." Manzanedo , 210 Ariz. 292, ¶ 8, 110 P.3d 1026 (quoting State v. Dixon , 127 Ariz. 554, 561, 622 P.2d 501, 508 (App. 1980) ); see also State v. Arndt , 87 Wash.2d 374, 553 P.2d 1328, 1333 (1976) (means not repugnant to each other if proof crime committed by one means is not necessarily inconsistent with proof of commission by another means). Finally, one might threaten or use physical force and use "any other means...