State v. Mitchell, 1 CA-CR 01-0447.

• Decision Date: 30 January 2003
• Docket Number: No. 1 CA-CR 01-0447.,1 CA-CR 01-0447.
• Citation: 62 P.3d 616,204 Ariz. 216
• Parties: STATE of Arizona, Appellee, v. Jason Eshum MITCHELL, Appellant.
• Court: Arizona Court of Appeals

62 P.3d 616

204 Ariz. 216

STATE of Arizona, Appellee, v. Jason Eshum MITCHELL, Appellant.

No. -0447.

Court of Appeals of Arizona, Division 1, Department C.

January 30, 2003.

Terry Goddard, Attorney General by Randall M. Howe, Chief Counsel, Criminal Appeals Section, and John L. Saccoman, Assistant Attorney General, Phoenix, for Appellee.

James J. Haas, Maricopa County Public Defender by James R. Rummage, Deputy Public Defender, Phoenix, for Appellant.

OPINION

GEMMILL, J.

¶ 1 May a suspect who has been handcuffed commit the crime of resisting arrest? After construing the phrase "effecting an arrest" in Arizona Revised Statutes ("A.R.S.") section 13-2508 (1999), we answer this question in the affirmative.

¶ 2 Jason Eshum Mitchell appeals his conviction and sentence for resisting arrest, arguing that the trial court erred in denying his motion for judgment of acquittal and that the court erred in refusing to give his requested jury instruction. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶ 3 We view the evidence in the light most favorable to upholding the jury verdict and all reasonable inferences are resolved in favor of the prevailing party at trial. See State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997)

. On December 11, 1999, at approximately 1:30 a.m., Phoenix police officers were conducting a search of an apartment on the ground floor. Sergeant Theodore Goehring was standing outside the apartment as "scene security" when Mitchell walked up behind him and stood there smoking a cigarette. Sergeant Goehring approached Mitchell and asked him if there was something he could help him with. Mitchell responded with "fuck off." Sergeant Goehring asked Mitchell to "move on," but Mitchell started to become agitated and responded with more obscenities.

¶ 4 The conversation went back and forth, and Sergeant Goehring then told Mitchell that if he didn't quiet down, he would be arrested for disorderly conduct. Sergeant Goehring noticed lights coming on in apartments nearby and people looking out to see what was going on. Mitchell walked away, but kept turning around giving obscene hand gestures and yelling profanities at Sergeant Goehring, who was now accompanied by Detective Corey, one of the officers who had been searching the apartment.

¶ 5 The officers approached Mitchell and Sergeant Goehring told him he was under arrest for disorderly conduct. Detective Corey grabbed Mitchell's arm, and Mitchell "froze up," trying to hold his hands in front of him. The detective was able to pull Mitchell's arm behind his back and handcuff him. After he was handcuffed, Mitchell appeared to calm down for a few seconds.

¶ 6 Detective Bryan joined Sergeant Goehring and Detective Corey to escort Mitchell to a police vehicle. Before reaching the parking lot, Mitchell pulled away from the officers and began to fight and struggle with them. Sergeant Goehring and Detective Corey tried to grab Mitchell to calm him down, but Mitchell wrapped his legs around Detective Corey's leg and ended up pulling everyone down to the ground. Mitchell continued to struggle and Detective Corey screamed that he injured his knee. The other two officers pulled Mitchell's legs apart to release the hold on Detective Corey's leg. Several other detectives came out of the apartment that was being searched and helped put Mitchell into a patrol unit.

¶ 7 Mitchell was charged by indictment with one count of aggravated assault, a class three felony, one count of disorderly conduct, a class one misdemeanor, and one count of resisting arrest, a class six felony. At trial, Mitchell moved for judgment of acquittal on all counts. The court denied the motion and sent all three counts to the jury.

¶ 8 The jury found Mitchell guilty of resisting arrest and disorderly conduct but deadlocked on the aggravated assault charge. The court later declared a mistrial on the aggravated assault charge and dismissed that charge without prejudice. After finding that Mitchell had two prior felonies, the court sentenced Mitchell to a mitigated term of three years for resisting arrest, and 81 days of time served for disorderly conduct. Mitchell filed a timely notice of appeal.

¶ 9 Mitchell raises two issues on appeal: (1) whether the trial court erred in denying his motion for judgment of acquittal on the resisting arrest charge; and (2) whether the court erred in refusing to give his requested jury instruction addressing when an arrest is completed. Mitchell does not appeal his disorderly conduct conviction.

DISCUSSION

Motion for Judgment of Acquittal

¶ 10 A trial court shall enter a judgment of acquittal if no substantial evidence supports a conviction. Ariz. R.Crim. P. 20. "Substantial evidence is more than a mere scintilla and is such proof that `reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990) (quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980)). Mitchell contends that his conduct could not have constituted resisting arrest, because the conduct on which the charge was based took place after the arrest was complete. The State responds that Mitchell's arrest was not "effected" for purposes of the resisting arrest statute when he was being escorted to the police vehicle and also that there was evidence that Mitchell resisted arrest prior to being handcuffed.

¶ 11 We turn first to the question whether Mitchell's arrest had already been "effected" when he started fighting with the officers while being escorted to the police vehicle. In Arizona, 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:

1. Using or threatening to use physical force against the peace officer or another;

....

A.R.S. § 13-2508 (emphasis added). Mitchell argues that he cannot be convicted of resisting arrest because his arrest was already complete when he was handcuffed. The State responds that the officers were still in the process of "effecting" the arrest when Mitchell forcibly resisted. Resolution of this dispute requires us to interpret the meaning of "effecting an arrest" in this statute.

¶ 12 Our goal in interpreting statutes is to fulfill the intent and purpose of the legislature. Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996); State v. Christian, 202 Ariz. 462, 463, ¶ 5, 47 P.3d 666, 667 (App.2002). We look first to the plain language of the statute as the most reliable indicator of its meaning. State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). To "effect" means to bring about, to produce as a result, or to cause. Black's Law Dictionary 532-33 (7th ed.1999); Webster's New World Dictionary (Neufeldt & Guralnik eds., 3rd ed.1988). Based on the language of A.R.S. § 13-2508 and the common meaning of the verb "effect," we construe the term "effecting" in § 13-2508 to mean an on-going process toward achieving, producing, making, or bringing about, an arrest. See Lewis v. State, 30 S.W.3d 510, 512 (Tex.App.2000)

("effecting an arrest" entails a process or transaction and the conduct alleged to be resisting arrest must occur after the arrest process begins but before the process ends); see also State v. Bay, 130 Ohio App.3d 772, 721 N.E.2d 421, 422 (1998) (resisting arrest charge arose from incident 15 to 30 minutes after police handcuffed defendant). Until the arrest has been "effected," the arrest process remains ongoing and the resisting arrest statute is applicable. See Lewis, 30 S.W.3d at 512.

¶ 13 Accordingly, "effecting an arrest" is a process with a beginning and an end. Id. Often, the process is very brief and the arrest is quickly completed. In some situations, however, the process of "effecting" an arrest will occur over a period of time and may not be limited to an instantaneous event, such as handcuffing. See Bay, 721 N.E.2d at 423

("A formal arrest, therefore, is `not necessarily an instantaneous event,' but rather is a process beginning with the seizure of a person, which can encompass acts necessary to effect the formal charging of a crime." (internal citations omitted)).

¶ 14 Mitchell contends that his arrest was complete when he was handcuffed because A.R.S. section 13-3881 (1999) provides that an arrest is "made by an actual restraint of the person to be arrested, or by his submission to the custody of the person making the arrest." According to Mitchell, his motion for judgment of acquittal should have been granted because, as a matter of law, he was restrained and he had submitted to the custody of the officers. For the following reasons, we disagree and conclude that a jury question was presented.

¶ 15 Section 13-3881 primarily defines how an arrest is "made," not when an arrest is effected within the meaning of the resisting arrest statute. Determining when an arrest process has been completed requires a case-by-case analysis of the facts in the light of the "effecting an arrest" language from § 13-2508. See Lewis, 30 S.W.3d at 513

. While an arrest as defined by § 13-3881 is characterized by actual restraint or submission, the phrase "effecting an arrest" in § 13-2508 connotes successful, effective restraint or submission of the person.

¶ 16 In construing the expression "effecting an arrest" in § 13-2508, we must consider the legislative purpose of criminalizing physical resistance to an arrest. See Frederikson v. Maricopa County, 197 Ariz. 104, 107,

¶ 11, 3 P.3d, 1024, 1027 (1999). The purpose of the resisting arrest statute is to protect peace officers and citizens from substantial risk of physical injury. State v. Womack, 174 Ariz. 108, 111, 847 P.2d 609, 612 (App.1992). Adopting Mitchell's argument—that the arrest was already completed because he was...