State v. White

Decision Date11 July 2014
Docket NumberNo. 2 CA-CR 2013-0319,2 CA-CR 2013-0319
PartiesTHE STATE OF ARIZONA, Appellee, v. PATRICK GUNNAR WHITE, Appellant.
CourtArizona Court of Appeals

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NOT FOR PUBLICATION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); Ariz. R. Crim. P. 31.24.

Appeal from the Superior Court in Pima County

No. CR20122278001

The Honorable Howard Hantman, Judge

AFFIRMED

COUNSEL

Thomas C. Horne, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By David A. Sullivan, Assistant Attorney General, Tucson

Counsel for Appellee

Lori J. Lefferts, Pima County Public Defender

By Erin K. Sutherland, Assistant Public Defender, Tucson

Counsel for Appellant

MEMORANDUM DECISION

Chief Judge Eckerstrom authored the decision of the Court, in which Judge Kelly and Judge Espinosa concurred.

ECKERSTROM, Chief Judge:

¶1 Following a jury trial, appellant Patrick White was convicted of disorderly conduct and resisting arrest. The trial court suspended the imposition of sentence and placed him on concurrent, three-year terms of probation. For the first time on appeal, White argues his resisting arrest charge was duplicitous and his conviction on that count should be reversed. We affirm for the reasons that follow.

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to upholding the verdicts. See State v. Fontes, 195 Ariz. 229, ¶ 2, 986 P.2d 897, 898 (App. 1998). On May 12, 2012, two peace officers from the Pima County Sheriff's Department, D. and V., went to White's residence to investigate a possible domestic disturbance.1 After speaking with White and his mother, the officers separately informed them they would be arrested for crimes of domestic violence. White initially complied and sat outside the residence, putting on his shoes; his mother, who was inside, became agitated and resisted D.'s efforts to place her in handcuffs.

¶3 As Officer V. started to go into the house to offer assistance, White attempted to stand up, ignoring V.'s commands to sit down. White said his arrest was "wrong" and that "he was going to kick [V.'s] ass." The officer performed a "[t]ake down" maneuverthat caused White to fall on a pool deck and lacerate his face. White then kicked V. in the leg.

¶4 After placing White in handcuffs, Officer V. ran into the house to help Officer D. in his struggle with White's mother. When V. returned outside, he discovered White attempting to get into a kneeling position. Because White did not respond to V.'s commands to stop moving, V. held him on the pool deck and waited for other officers to arrive. V. testified White was "trying to get control" during this time by "moving his head to kind of push himself up off the ground."

¶5 Officer T. arrived to find Officer V. beside White on the ground outside the house. White was screaming and yelling. As V. and T. escorted him to a patrol car, White squirmed and "tr[ied] to make it difficult" by lifting and kicking both his feet, thereby forcing the officers to carry him. During this process, White kicked off the shorts he was wearing and said, "I can kick your guys' ass."

¶6 White was charged with one count of aggravated assault against Officer V., A.R.S. § 13-1204(A)(8), and one count of resisting arrest. A.R.S. § 13-2508(A).2 In defense, he argued V.'saccount of the incident was not credible because V. was attempting to cover up his own excessive and unjustifiable use of force. White also suggested his own behavior was justified and did not amount to resisting arrest because, even though he admittedly had been "mouthing off," he had only "used words[,] and words do not warrant this kind of abuse." The jury acquitted White of aggravated assault but found him guilty of the lesser-included offense of disorderly conduct.3 The jury also returned a general verdict form finding White guilty of resisting arrest. This timely appeal followed the judgment and disposition.

Discussion

¶7 Although White filed a pretrial motion alleging his aggravated assault charge was duplicitous, he never argued below that his resisting arrest charge was duplicitous, nor did he seek any curative measures for it. We therefore review the issue only for fundamental error. See State v. Payne, 233 Ariz. 484, ¶ 80, 314 P.3d 1239, 1262-63 (2013), cert. denied, ___ U.S. ___, 134 S. Ct. 1518 (2014); State v. Dann, 220 Ariz. 351, ¶ 76, 207 P.3d 604, 619-20 (2009). To prevail under this standard, White carries the burden of showing an error occurred, the error was fundamental, and it resulted in prejudice. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). Duplicity is a question of law that we review de novo. See State v. Ramsey, 211 Ariz. 529, ¶ 5, 124 P.3d 756, 759 (App. 2005).

¶8 A duplicitous charge exists "[w]hen the text of an indictment refers only to one criminal act, but multiple alleged criminal acts are introduced to prove the charge." State v. Klokic, 219 Ariz. 241, ¶ 12, 196 P.3d 844, 847 (App. 2008); accord State v. Paredes-Solano, 223 Ariz. 284, ¶ 4, 222 P.3d 900, 903 (App. 2009). We have recognized that a duplicitous charge is an error of a fundamental nature and that a defendant can show prejudice "by demonstratingthat the jury may have reached a nonunanimous verdict." State v. Delgado, 232 Ariz. 182, ¶ 19, 303 P.3d 76, 82 (App. 2013).

¶9 White claims the resisting arrest charge here was duplicitous because the state presented evidence of distinct acts of resistance against different officers at different times. He reasons that this evidence established "separate offenses" based on either the existence of multiple victims or separate periods of "successful restraint and/or submission" representing fully effectuated arrests. And he contends the evidence of these separate offenses created the real possibility of a nonunanimous verdict, given that he offered separate defenses—self-defense and a lack of officer credibility—that applied differently to the various officers' testimony. The state maintains the charge was not duplicitous because there was only one arrest and one offense of resisting arrest. We agree with the state.

¶10 Evidence of multiple acts creates no duplicity problem when the acts "'form part of one and the same transaction, and as a whole constitute but one and the same offense.'" State v. Solano, 187 Ariz. 512, 520, 930 P.2d 1315, 1323 (App. 1996), quoting State v. Counterman, 8 Ariz. App. 526, 531, 448 P.2d 96, 101 (1968). Section 13-2508(A) prohibits someone from "resisting arrest" by attempting to prevent a peace officer "from effecting an arrest." This statutory language "entail[s] a process or transaction." State v. Mitchell, 204 Ariz. 216, ¶ 17, 62 P.3d 616, 619 (App. 2003). Effecting an arrest is an ongoing process rather than a discrete event with a readily identifiable beginning and end. See id. ¶¶ 12, 15; see also State v. Stroud, 209 Ariz. 410, ¶ 10, 103 P.3d 912, 915 (2005); State v. Flores, 227 Ariz. 509, n.1, 260 P.3d 309, 312 n.1 (App. 2011). This means an arrest is not necessarily effected or completed when a defendant is placed in handcuffs. See Mitchell, 204 Ariz. 216, ¶ 13, 62 P.3d at 618. And a person's multiple acts of resistance during a single, ongoing arrest constitute "separate acts that . . . are part of a single criminal transaction." Klokic, 219 Ariz. 241, ¶ 15, 196 P.3d at 847.

¶11 As noted, White characterizes the evidence here as establishing multiple arrests. But there is no bright-line rule for when an arrest has been completed. Mitchell, 204 Ariz. 216, ¶ 18, 62 P.3d at 619. That question is one to be resolved by the factfinder.

See Stroud, 209 Ariz. 410, ¶ 14, 103 P.3d at 915. We therefore will not conclude an arrest was completed, as a matter of law, if there is evidence upon which a rational jury could find that the defendant had not submitted or been successfully restrained. See Mitchell, 204 Ariz. 216, ¶¶ 14, 17-18, 62 P.3d at 618, 619. Here, given that White offered resistance at every point at which the officers attempted to control him, the record contained sufficient evidence for the jury to determine that White had not been successfully or effectively restrained until he was secured in the police vehicle. See id. ¶¶ 15, 18. Thus, the charge was not duplicitous on a theory of multiple arrests.

¶12 We likewise reject White's claim that there were separate offenses here because he resisted two officers. Our precedents upholding convictions under § 13-2508 invariably involve evidence of separate acts of resistance or endangerment offered to support a single count of resisting arrest, even against multiple officers.4 Yet White has cited no Arizona case, and we havefound none, suggesting either that separate charges under § 13-2508 are appropriate in such circumstances or that a duplicity problem arises from such evidence. This fact is significant given that fundamental error review was mandated by statute until 1996, see State v. Smith, 184 Ariz. 456, 459, 910 P.2d 1, 4 (1996), and our appellate courts continue to remedy fundamental error sua sponte when we find it warranted. See State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007). Our case law therefore militates against White's novel assignment of error.

¶13 But even looking to the legislature's intent to determine the appropriate unit of prosecution under § 13-2508, see State v. Burdick, 211 Ariz. 583, ¶ 5, 125 P.3d 1039, 1041 (App. 2010), we find no clear intent to proliferate charges and convictions based on the number of officers involved in an arrest. The text of the statute plainly indicates that it serves dual purposes. We have recognized that a peace officer who is resisted during an arrest is a victim of the offense, State v. Sorkhabi, 202 Ariz. 450, ¶ 9, 46 P.3d 1071, 1073 (App. 2002), and that § 13-2508 is partly intended to promote officer and public safety. See Mitchell, 204 Ariz. 216, ¶ 16, 62 P.3d at 619; State v. Womack, 174 Ariz. 108, 111, ...

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