State v. Ruggiero

• Decision Date: 10 August 2005
• Docket Number: No. 2 CA-CR 2004-0063.,2 CA-CR 2004-0063.
• Citation: 120 P.3d 690,211 Ariz. 262
• Parties: The STATE of Arizona, Appellee, v. Renee Sue RUGGIERO, Appellant.
• Court: Arizona Supreme Court

Page 690

120 P.3d 690

211 Ariz. 262

The STATE of Arizona, Appellee, v. Renee Sue RUGGIERO, Appellant.

No. 2 CA-CR 2004-0063.

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

August 10, 2005.

Redesignated as Opinion October 4, 2005.

Terry Goddard, Arizona Attorney General, By Randall M. Howe and Robert A. Walsh, Phoenix, for Appellee.

Robert J. Hooker, Pima County Public Defender, By Lisa M. Hise, Tucson, for Appellant.

OPINION

PELANDER, Chief Judge.

¶ 1 After a jury trial, appellant Renee Sue Ruggiero was convicted of manslaughter and sentenced to an aggravated, fourteen-year prison term. On appeal, she argues the trial court erred in refusing to give a requested jury instruction and denying her related motion for new trial, in admitting certain evidence at trial, and in imposing an aggravated sentence in violation of Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Finding no reversible error, we affirm.

BACKGROUND

¶ 2 We view the evidence and all reasonable inferences therefrom in the light most favorable to sustaining the conviction. See State v. Riley, 196 Ariz. 40, ¶ 2, 992 P.2d 1135, 1137 (App.1999). In March 2002, Ruggiero moved into a mobile home with her sixteen-year-old son (Mark), daughter (B.), and B.'s boyfriend (D.). B. was then thirteen or fourteen years old, and D. was twenty-eight. Shortly after they moved in, B. told Ruggiero that she was pregnant with D.'s child. Ruggiero did not report D. to the police, apparently because B. threatened to run away or commit suicide, but she decided that D. would have to leave the home.

¶ 3 Ruggiero then went to a local tattoo parlor to "see if a bunch of the guys could kind of get together and back [her] up just to get [D.] out of [her] house, get him away from [her] daughter." Several people from the tattoo shop, along with Ruggiero and her son Mark, then returned to the mobile home to evict D. When they arrived, Mark kicked in the door and, once inside, they found D. and B. in bed together, asleep and naked. Ruggiero told D. to leave, and he got up and dressed, while B. remained in the bedroom.

¶ 4 Scott Soto, one of Ruggiero's friends from the tattoo shop, took a loaded rifle from her closet, and he and Mark ordered D. to move into the kitchen area and eventually outside onto the porch. A ride was arranged for D., but the driver requested that he be bound "because they were nervous about having [D.] in their vehicle." Mark testified that he then had heard a shot and had seen his mother holding the rifle as D. was lying on the kitchen floor, at least partially bound with duct tape. As Ruggiero kept the rifle pointed at D., Mark and Soto then bound D. with more duct tape, beat him, shocked him with a "Tazer gun," and left him on the kitchen floor, where he eventually died. Two more of Ruggiero's friends arrived to find D. dead on the kitchen floor and helped move his body outside to a brick pit on the property, where they covered it with nearby debris.

¶ 5 After D.'s body was discovered a few days later, Ruggiero, Soto and Mark were arrested and charged with kidnapping and first-degree murder.¹ A jury found Ruggiero not guilty of those charges but guilty of manslaughter, a lesser-included offense of first-degree murder. She was sentenced to an aggravated, fourteen-year prison term.

DISCUSSION

I. Jury instruction

¶ 6 Ruggiero argues the "trial court erred in denying [her] motion for new trial," which was based on the court's prior ruling "denying [her] requested jury instruction on justification to prevent child molestation." We review a trial court's denial of a motion for new trial for an abuse of discretion. State v. Hoskins, 199 Ariz. 127, ¶ 52, 14 P.3d 997, 1012 (2000). Refusing a jury instruction is likewise within a trial court's discretion, and we will not reverse on that ground absent a clear abuse of that discretion and resulting prejudice. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995); State v. Islas, 132 Ariz. 590, 591, 647 P.2d 1188, 1189 (App.1982).

¶ 7 Ruggiero requested a justification instruction pursuant to A.R.S. § 13-411, which provides in pertinent part:

A. A person is justified in threatening or using both physical force and deadly physical force against another if and to the extent the person reasonably believes that physical force or deadly physical force is immediately necessary to prevent the other's commission of ... sexual conduct with a minor under § 13-1405, ... [or] child molestation under § 13-1410.

B. There is no duty to retreat before threatening or using deadly physical force justified by subsection A of this section.

C. A person is presumed to be acting reasonably for the purposes of this section if he is acting to prevent the commission of any of the offenses listed in subsection A of this section.

Over the state's objection, the trial court gave a justification instruction under that statute, but only as to sexual conduct with a minor and not as to child molestation.

¶ 8 Sexual conduct with a minor is defined as "intentionally or knowingly engaging in sexual intercourse or oral sexual contact with any person who is under eighteen years of age." A.R.S. § 13-1405(A). Child molestation, however, is defined as "intentionally or knowingly engaging in or causing a person to engage in sexual contact, except sexual contact with the female breast, with a child under fifteen years of age." A.R.S. § 13-1410(A). "Sexual contact" is "any direct or indirect touching, fondling or manipulating of any part of the genitals, anus or female breast by any part of the body or by any object or causing a person to engage in such contact." A.R.S. § 13-1401(2).

¶ 9 It is undisputed that when Ruggiero and the others arrived at her residence, they found D. and B. naked and sleeping in the same bed. Evidence also was presented that D. had shaved B.'s public hair. Ruggiero argues that the jury could have found that D. had been committing child molestation and that her actions had been justified to prevent it even though, as the prosecution argued in closing, no "sexual conduct with a minor" had occurred at the time D. was killed.

¶ 10 As Ruggiero correctly argues, "a defendant is entitled to a justification instruction if it is supported by `the slightest evidence.'" State v. Hussain, 189 Ariz. 336, 337, 942 P.2d 1168, 1169 (App.1997), quoting State v. Dumaine, 162 Ariz. 392, 404, 783 P.2d 1184, 1196 (1989). An instruction should not be given, however, "unless it is reasonably and clearly supported by the evidence." State v. Walters, 155 Ariz. 548, 553, 748 P.2d 777, 782 (App.1987).

¶ 11 "A defendant who disclaims any assaultive behavior on his part is not entitled to a self defense instruction." State v. Miller, 129 Ariz. 42, 43, 628 P.2d 590, 591 (App.1981). In her reply brief, Ruggiero cites State v. Wright, 163 Ariz. 184, 786 P.2d 1035 (App.1989), and State v. Plew, 150 Ariz. 75, 722 P.2d 243 (1986), for the proposition that she could deny having killed D. and still have been entitled to a justification instruction. We disagree. In fact, the Plew court stated, "[a] defendant who denies shooting the victim may not thereafter claim self-defense." 150 Ariz. at 78, 722 P.2d at 246. A justification instruction was warranted in both that case and in Wright because the defendant, although not admitting assaultive behavior, did not directly deny it. Id. ("While the appellant does indeed deny shooting the victim or intending any harm, he also states several times that he is unsure of exactly what transpired. His testimony throughout the cross-examination is ambivalent on this point."); see also Wright, 163 Ariz. at 186, 786 P.2d at 1037 (self-defense and defense-of-third-person instruction warranted where defendant claimed to not remember what had happened). Here, however, Ruggiero repeatedly and directly denied having shot D. Therefore, as the state points out, she was not entitled to any justification instruction. See Miller, 129 Ariz. at 43, 628 P.2d at 591.

¶ 12 Furthermore, contrary to Ruggiero's assertions, the evidence at trial did not show that deadly force was "immediately necessary to prevent" D. from molesting B. or that Ruggiero had "reasonably believe[d]" that to be so. § 13-411(A). As the state points out, D. and B. "had been moved to separate rooms and were not engaged in sexual activity when deadly physical force was used." In fact, D. got out of the bed willingly and even left the mobile home at one point before he was killed. Moreover, according to Mark's testimony, at the time D. was shot he was at least partially bound with duct tape, certainly in no position to molest B. And, as the state also observes, no evidence "demonstrate[d] that [D.] had recently shaved [B.]'s pubic hair."

¶ 13 In sum, because she unequivocally denied having shot D., Ruggiero was not entitled to any justification instruction, nor did the evidence support her justification defense based on child molestation. See § 13-411(A); Miller, 129 Ariz. at 43, 628 P.2d at 591. Therefore, the trial court did not abuse its discretion in denying her requested instruction and her related motion for a new trial.

II. Rebuttal evidence

¶ 14 At trial, Ruggiero sought to introduce an exculpatory, hearsay statement through witness J., Soto's former girlfriend. Over the state's objection, the trial court ruled that J.'s proffered testimony that Soto had told her that he had killed the victim was admissible as a statement against penal interest, and J. so testified. See Ariz. R. Evid. 804(b)(3), 17A A.R.S. In response, relying on Rule 806, Ariz. R. Evid., the state sought to introduce a police lieutenant's rebuttal testimony that Soto had told him in a pre-arrest interview Ruggiero in fact had shot the victim. Over Ruggiero's objection, the trial court permitted the lieutenant to so testify for purposes of rebutting J.'s testimony.

¶ 15 Ruggiero contends admission of that hearsay evidence violated her...