State v. Oaks, No. 2 CA-CR 2002-0386.

• Court: Court of Appeals of Arizona
• Writing for the Court: HOWARD, Presiding.
• Citation: 104 P.3d 163,209 Ariz. 432
• Decision Date: 22 December 2004
• Docket Number: No. 2 CA-CR 2002-0386.
• Parties: The STATE of Arizona, Appellee, v. Derek Scott OAKS, Appellant.

104 P.3d 163
209 Ariz. 432

The STATE of Arizona, Appellee,
v.
Derek Scott OAKS, Appellant

No. -0386.

Court of Appeals of Arizona, Division 2, Department A.

December 22, 2004.

As Corrected January 14, 2005.

104 P.3d 164

Terry Goddard, Arizona Attorney General By Randall M. Howe and Joseph L. Parkhurst, Tucson, Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender By Stephan J. McCaffery, Tucson, Attorneys for Appellant.

OPINION

HOWARD, Presiding Judge.

¶ 1 A jury found appellant Derek Oaks guilty of aggravated assault with a deadly weapon and aggravated assault causing serious physical injury, both dangerous nature offenses. The trial court sentenced Oaks to partially aggravated, concurrent, ten-year terms of imprisonment. He contends on appeal that the court erred by refusing to give his requested jury instruction on recklessness and by relying on improper factors to aggravate his sentences. In a supplemental brief, Oaks asserts he was entitled to have a jury determine the existence of aggravating factors based on Blakely v. Washington, ___ U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). We affirm Oaks's convictions but remand the case for resentencing.

Factual and Procedural Background

¶ 2 We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the convictions. See State v. Riley, 196 Ariz. 40, ¶ 2, 992 P.2d 1135, 1137 (App.1999). On March 28, 2002, fifteen-year-old Oaks, his fifteen-year-old friend Q., and two other boys were in Oaks's home after they had been swimming. While Q. was in Oaks's bedroom playing games on the computer, Oaks went to his father's bedroom closet and retrieved an old, rusty,.22 caliber rifle. The gun was unloaded. Oaks took it to his bedroom and pointed it at Q. At some point, the two pretended to sword fight, with Oaks swinging the rifle by the butt and Q. waving a monkey wrench. Q. then went back to the computer.

¶ 3 Oaks later returned to his father's closet, put a bullet in the rifle's chamber, and walked into the bedroom where Q. was. Q. turned around and asserted the gun was unloaded. Oaks said something like, "[W]hat do you think about this now?" pointed the rifle at Q., and "barely touched" the trigger. The rifle fired, and the bullet hit Q. in the head. Q. underwent emergency surgery, was in intensive care and a rehabilitation facility for months, and sustained what a neurosurgeon testified is permanent brain damage.

¶ 4 Oaks told a deputy sheriff who responded to a 911 call that, after Oaks had loaded the rifle, he had pulled the trigger a few times while in the closet to make sure the gun would not fire. Oaks reported he had then taken the rifle to his bedroom and told Q. he was going to shoot him. Oaks later told a detective Q.'s saying he did not believe Oaks would shoot him had "bugged" Oaks so he had pointed the rifle at Q. Oaks said he had not intended to shoot Q.

¶ 5 Oaks was indicted for attempted first-degree murder and two counts of aggravated assault. The state dismissed the attempted murder charge on the day trial began, and Oaks was tried on and convicted of the aggravated assault charges.

Recklessness Instruction

¶ 6 Pursuant to A.R.S. § 13-1203(A)(1) and (2), the trial court instructed

104 P.3d 165

the jury, both in preliminary and final instructions, that a person commits assault by "intentionally, knowingly or recklessly caus[ing] a physical injury to another person." Although the court also instructed the jury at the state's request that a person can commit an assault by intentionally placing another person in reasonable apprehension of imminent physical injury, the state's primary theory was that Oaks had recklessly assaulted Q. At the start of trial, Oaks asked the court to give the following preliminary instruction defining the standard of conduct for recklessness as that of a reasonable fifteen-year-old person

"Recklessly" means, with respect to conduct or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such a nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person of age 15 would observe in the situation.

The trial court refused the request.

¶ 7 When the court and the parties discussed jury instructions at the close of evidence, Oaks objected to the court's decision to instruct the jury with language drawn from A.R.S. § 13-105(9)(c), which defines the standard of conduct of a reasonable person, not a reasonable fifteen year old. The court instructed the jury as follows:

Recklessly means that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.

¶ 8 Oaks contends the court erred in refusing to give his requested instruction, citing civil negligence cases and juvenile delinquency cases. He argues that a majority of courts determining the proper standard of conduct for recklessness in similar cases have applied a juvenile standard and have not distinguished between adult and juvenile proceedings in doing so. In addition, Oaks contends a juvenile's age, intelligence, maturity, and education are considered in other aspects of criminal prosecutions, such as in determining whether a juvenile may be sentenced to death or whether a juvenile's confession was voluntary.

¶ 9 Preliminarily, we reject the state's contention that the instruction's language "reasonable person would observe in the situation" allowed the jury to determine Oaks's guilt based on a recklessness standard for a reasonable fifteen-year-old juvenile in Oaks's situation. Both the statutory definition and the court's instruction contain the term "reasonable person." By its very nature, the term connotes an objective standard of conduct, not a subjective standard. See State v. Serrano, 145 Ariz. 498, 501, 702 P.2d 1343, 1346 (App.1985) (reasonable person standard of conduct "is objectively based"). This standard does not take into account the individual characteristics of the accused. See State v. Tuzon, 118 Ariz. 205, 209, 575 P.2d 1231, 1235 (1978) (standard in determining self-defense is "a reasonable person's belief, not the unreasonable, even if honest, belief of the accused"). We therefore determine whether giving the instruction holding Oaks to an objective, adult standard of conduct was error.

¶ 10 The legislature has authority to define crimes and fix penalties. State v. Casey, 205 Ariz. 359, ¶ 10, 71 P.3d 351, 354 (2003). Our decision must implement the legislature's intent in defining the state of mind at issue. See In re William G., 192 Ariz. 208, 212, 963 P.2d 287, 291 (App.1997). We review this issue of statutory construction de novo. See State v. Vogel, 207 Ariz. 280, ¶ 25, 85 P.3d 497, 501 (App.2004). Our primary goal in construing a statute is to...