State v. McDuffie

• Decision Date: 30 November 2015
• Docket Number: No. 2 CA-CR 2014-0346,2 CA-CR 2014-0346
• Parties: THE STATE OF ARIZONA, Appellee, v. JEVON MCDUFFIE, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. JEVON MCDUFFIE, Appellant.

No. 2 CA-CR 2014-0346

ARIZONA COURT OF APPEALS DIVISION TWO

November 30, 2015

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.

Appeal from the Superior Court in Pima County

No. CR20130569002

The Honorable Scott Rash, Judge

AFFIRMED IN PART; VACATED IN PART

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Amy M. Thorson, Assistant Attorney General, Tucson

Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender

By Abigail Jensen, Assistant Public Defender, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Kelly¹ concurred.

VÁSQUEZ, Presiding Judge:

¶1 Following a jury trial, Jevon McDuffie was convicted of participation in a riot, aggravated assault, and dangerous or deadly assault by a prisoner, the latter two offenses involving a dangerous instrument. The trial court sentenced him to mitigated, concurrent prison terms, the longest of which were 10.5 years. On appeal, McDuffie argues that the statute defining the offense of participation in a riot is unconstitutionally vague and that his conviction for the offense was not supported by sufficient evidence. He also challenges his convictions for aggravated assault and dangerous or deadly assault by a prisoner based on multiplicity and duplicity. Lastly, McDuffie maintains the state presented insufficient evidence that the mop handle he used constitutes a dangerous instrument. For the reasons stated below, we vacate McDuffie's conviction and sentence for aggravated assault but otherwise affirm.

Factual and Procedural Background

¶2 We view the facts in the light most favorable to sustaining McDuffie's convictions. See State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32 (App. 2013). In September 2012, McDuffie was an inmate in the custody of the Department of Corrections at the Santa Rita Unit in Pima County. Late one afternoon, a riot involving approximately fifty inmates broke out at the Unit. Corrections officers Mario Figueroa and Ernesto Romero locked down the area where they were working and then reported to the yard where the riot had originated.

¶3 Figueroa ran to assist J.B., an inmate who had been injured and was lying on the ground. As Figueroa attempted to move J.B. to safety, a group of several inmates approached. Among those inmates was McDuffie, who was carrying a mop. McDuffie then attacked Figueroa by swinging the mop handle and striking Figueroa in the back several times. As other officers ran to assist Figueroa, the inmates scattered, and Figueroa dragged J.B. to a safe location.

¶4 After the riot ended, Romero took Figueroa to a hospital. Figueroa had bruises on his back and reported general soreness, but he was released from the hospital within a few hours.

¶5 A grand jury indicted McDuffie for participation in a riot, aggravated assault, and assault with a dangerous instrument or deadly weapon by a prisoner. The indictment alleged that both assault charges involved the use of a "deadly weapon or dangerous instrument, to wit: mop handle." At trial, however, the court instructed the jury to consider only if the mop handle was a "dangerous instrument" and did not instruct on the term "deadly weapon." The jury found McDuffie guilty of all three offenses, and the trial court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Statute Unconstitutionally Vague

¶6 McDuffie contends that the statute defining the offense of participation in a riot is unconstitutionally vague. He concedes that he failed to raise this argument in the trial court. Accordingly, he has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005); see also State v. Bolton, 182 Ariz. 290, 297, 896 P.2d 830, 837 (1995) (fundamental-error review applies to constitutional issues). Under this standard, a defendant must show: (1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice. Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607.

¶7 Section 13-1207(A), A.R.S., provides that "[a] person, while in the custody of the state department of corrections or acounty or city jail, . . . who participates in a riot is guilty of a class 2 felony."² When reviewing a statute for vagueness, we strongly presume that it is constitutional. State v. Kaiser, 204 Ariz. 514, ¶ 8, 65 P.3d 463, 466 (App. 2003). The party challenging the statute bears the burden of overcoming that presumption. State v. Bonnewell, 196 Ariz. 592, ¶ 5, 2 P.3d 682, 684 (App. 1999).

¶8 "A statute is unconstitutionally vague if it fails to provide 'person[s] of ordinary intelligence a reasonable opportunity to know what is prohibited.'" State v. Poshka, 210 Ariz. 218, ¶ 5, 109 P.3d 113, 115 (App. 2005), quoting Grayned v. City of Rockford, 408 U.S. 104, 108-09 (1972) (alteration in Poshka). But this requirement "cannot be so extended as to impose an impossible burden on the drafters of legislation." State v. Starsky, 106 Ariz. 329, 331, 475 P.2d 943, 945 (1970). Thus, notice of what is prohibited need not be "'perfect,'" nor is "'absolute precision of language'" necessary. State v. McDermott, 208 Ariz. 332, ¶ 13, 93 P.3d 532, 536 (App. 2004), quoting Kaiser, 204 Ariz. 514, ¶ 8, 65 P.3d at 466.

¶9 McDuffie maintains that § 13-1207(A) is unconstitutionally vague because it does not include a definition of "participates." He asserts that "participates in a riot" under § 13-1207(A) generally "can be understood to mean 'to take part in a riot,'" but he argues the phrase "gives no clue to what type of part one must play to qualify as a 'participant.'" He questions what level of participation is necessary for a violation of the statute, citing, for example, accomplice liability, solicitation, and facilitation.

¶10 A statute that fails to explicitly define a term is not necessarily vague. McDermott, 208 Ariz. 332, ¶ 13, 93 P.3d at 536. As McDuffie acknowledges, when a term is not statutorily defined, we apply its common, ordinary meaning. See State v. Takacs, 169 Ariz.392, 397, 819 P.2d 978, 983 (App. 1991). "Participate" commonly means "[t]o be active or involved in something; take part." The American Heritage Dictionary 1285 (5th ed. 2011). With that definition in mind, § 13-1207(A) "affords adequate notice of the type of conduct that is proscribed"—it prohibits a prison or jail inmate from being involved in or taking part in a riot. Starsky, 106 Ariz. at 331, 475 P.2d at 945. Because the legislature did not distinguish between different levels of participation—accomplice liability, solicitation, and facilitation—neither do we. See State v. Ritch, 160 Ariz. 495, 497, 774 P.2d 234, 236 (App. 1989) ("Courts will not read into a statute something which is not within the manifest intent of the legislature as reflected by the statute itself.").

¶11 McDuffie additionally contends that § 13-1207(A) is unconstitutionally vague because "riot" has a "fairly precise definition in the law" but "there is no reason to believe that an ordinary juror would understand that word to carry that legal meaning."³ McDuffie points to A.R.S. § 13-2903(A), which provides: "A person commits riot if, with two or more other persons acting together, such person recklessly uses force or violence or threatens to use force or violence, if such threat is accompanied by immediate power of execution, which disturbs the public peace."

¶12 McDuffie is correct that §§ 13-1207(A) and 13-2903(A) "must be read in conjunction," State v. Manzanedo, 210 Ariz. 292, ¶ 12, 110 P.3d 1026, 1029 (App. 2005), and the definition of "riot" as contained in § 13-2903(A) is "fairly precise." This definition, however, does not render § 13-1207(A) unconstitutionally vague. It does quite the opposite by explicitly providing the meaning of "riot." See McDermott, 208 Ariz. 332, ¶¶ 13-14, 93 P.3d at 536.

Moreover, as McDuffie recognizes, "riot" also has a common, ordinary meaning. See Takacs, 169 Ariz. at 397, 819 P.2d at 983. It commonly means "[a] violent disturbance of the public peace by three or more persons assembled for a common purpose." The American Heritage Dictionary 1513. That common meaning is similar to the language of § 13-2903(A) in that both require the involvement of three or more persons disturbing the public peace. Cf. Peterson v. Sundt, 67 Ariz. 312, 319-20, 195 P.2d 158, 163 (1948) (statute not void for vagueness where it employs words with technical or special meaning that are well enough known to enable general understanding). Thus, considering the meaning of "riot," § 13-1207(A) "affords adequate notice of the type of conduct that is proscribed." Starsky, 106 Ariz. at 331, 475 P.2d at 945.

¶13 In sum, McDuffie has not sustained his burden of showing fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607. Simply put, a person of ordinary intelligence would understand the meaning of "participates in a riot" in § 13-1207(A). See Poshka, 210 Ariz. 218, ¶ 5, 109 P.3d at 115.

Sufficiency of the Evidence

¶14 McDuffie also argues, even if § 13-1207 is not unconstitutionally vague, his conviction for participation in a riot must be vacated because the state presented insufficient evidence of the offense. "The sufficiency of the evidence is a question of law we review de novo." State v. Snider, 233 Ariz. 243, ¶ 4, 311 P.3d 656, 658 (App. 2013). "'[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.'" State v. West, 226 Ariz. 559, ¶ 16, 250 P.3d 1188, 1191 (2011), quoting State v. Mat...