State v. Montufar-Cuellar, 110819 AZAPP2, 2 CA-CR 2019-0037

Docket Nº:2 CA-CR 2019-0037
Opinion Judge:ECKERSTROM, Judge.
Party Name:The State of Arizona, Appellee, v. Jeyson Eliel Montufar-Cuellar, Appellant.
Attorney:Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee Law Offices of Thomas Jacobs, Tucson By Thomas Jacobs Counsel for Appellant
Judge Panel:Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred.
Case Date:November 08, 2019
Court:Court of Appeals of Arizona
 
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The State of Arizona, Appellee,

v.

Jeyson Eliel Montufar-Cuellar, Appellant.

No. 2 CA-CR 2019-0037

Court of Appeals of Arizona, Second Division

November 8, 2019

Not for Publication - Rule 111(c), Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pima County No. CR20175781002 The Honorable Gus Aragón, Judge.

Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee

Law Offices of Thomas Jacobs, Tucson By Thomas Jacobs Counsel for Appellant

Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Eppich and Judge Espinosa concurred.

MEMORANDUM DECISION

ECKERSTROM, Judge.

¶1 Jeyson Montufar-Cuellar appeals from his conviction and sentence for offering to transfer marijuana. We affirm.

Factual and Procedural Background

¶2 We review the facts in the light most favorable to sustaining the verdict and resolve all inferences against the defendant. State v. Burns, 237 Ariz. 1, ¶ 72 (2015). Montufar-Cuellar, a Honduran citizen, fled north. In December 2017, he was apprehended by federal law-enforcement officers some seven miles north of the U.S.-Mexico border. A motion-activated surveillance camera had captured an image of him walking northbound dressed in camouflage clothing, a hood, and shoes with carpet on the soles, carrying a large camouflage bundle wrapped in rope.1 Montufar-Cuellar hid when the officers arrived, but they soon found him under a tree. He calmly and cooperatively followed their instructions, did not mention having been kidnapped or threatened, and exhibited no sign of injury. Officials found the large bundle he had been carrying approximately 400 feet away, hidden under broken branches. It contained large, compact bricks of marijuana weighing over forty pounds.

¶3 Montufar-Cuellar admitted, both to police and at trial, that he had carried the backpack into Arizona. But he claimed he had been forced to do so after being kidnapped and threatened with violence and had not known the bag contained marijuana.

¶4 A jury found Montufar-Cuellar guilty of offering to transfer over two pounds of marijuana, and the trial court sentenced him to a mitigated term of three years in prison. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Duress Jury Instruction

¶5 At trial, Montufar-Cuellar maintained he had been kidnapped in the Mexican border town of Sonoyta and forced to carry the backpack of narcotics into the United States under threat of death. He requested that the jury be instructed on duress. The trial court provided the then-current Revised Arizona Jury Instructions (RAJI) Statutory Criminal 4.12 (duress) (4th ed. 2018), which included all of the language Montufar-Cuellar had requested.2

¶6 Three days after the jury was excused to deliberate, Montufar-Cuellar filed a motion requesting that the jury be provided an additional instruction based on an Arizona Supreme Court decision that had been published the same day the original instruction had been read to the jury. Specifically, Montufar-Cuellar argued that State v. Richter, 245 Ariz. 1 (2018), clarified and expanded the scope of A.R.S. § 13-412(A), entitling him to have the jury instructed based on that expanded standard for evaluating a duress defense. He further requested that the trial court permit the parties to make brief argument to the jury on the "effect and application" of the requested instruction based on the Richter decision. He attached to his motion a requested jury instruction which included the following new language, much of which was taken verbatim from Richter:

The inquiry for the jury is whether a reasonable person subjected to the same threats would have believed he/she was compelled to engage in the same illegal conduct.

An ongoing threat of harm can be sufficiently immediate and present for purposes of a duress defense even when the threat precedes the illegal conduct by several days, the coercing party is physically removed from the defendant or the threat is initiated and then repeated over several years. A continuing threat over a three-month period could also serve as the basis for the duress defense. See id. ¶¶ 16-22, 24, 27-30.

¶7 The trial court immediately held a hearing on the matter, allowing each party to present its position. Then, finding "no good cause to modify any instructions to the jury or...

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