Court of Appeals of Arizona, First Division, Department B
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2011-117188-001 The Honorable Paul J. McMurdie, Judge
Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals Section And Melissa M. Swearingen, Assistant Attorney General Attorneys for Appellee
James J. Haas, Maricopa County Public Defender Phoenix By Mikel P. Steinfeld, Deputy Public Defender Attorneys for Appellant
DONN KESSLER, Presiding Judge
¶1 Appellant Francisco Turrey, Jr. appeals his convictions and sentences for shoplifting, a class 1 misdemeanor, and two counts of aggravated assault, both class 3 felonies. Ariz. Rev. Stat. ("A.R.S.") §§ 13-1805 (2010), -1204 (Supp. 2012), -704 (Supp. 2012). The convictions arise from a single incident when Turrey stole less than fifty dollars' worth of cigarettes from a Circle K gas station. Turrey argues that the court fundamentally erred by incorrectly instructing the jury regarding a private person's authority to arrest, and failing to provide an in-depth description of reasonable force. For the reasons that follow, we affirm his convictions and sentences.
FACTUAL AND PROCEDURAL HISTORY
¶2 JB and RM, employees for Valley Protective Services, were providing loss prevention to Circle K. RM was stationed in the manager's office watching the surveillance camera feeds when he saw Turrey go behind the counter and steal cigarettes. JB was standing outside of the store, so RM notified JB of the theft and provided a description of the suspect. JB stopped Turrey as he exited the store, informed him that he was store security, and asked if he had forgotten to pay for something. Turrey said yes and began to reach into his pocket, at which point RM emerged from the store, placed a handcuff on Turrey's left hand, and informed him that he was under arrest. RM could not properly handcuff Turrey because his own glove got in the way and Turrey struggled free. In an attempt to prevent Turrey from escaping, JB sprayed him with pepper spray and RM struck him twice with his baton as Turrey was getting into his truck. When Turrey managed to get into his truck, he said, "I have got something for you mother fuckers, " and aimed a semi-automatic gun at JB. JB and RM retreated towards the store and called for back-up as Turrey drove away.
¶3 Officer DR responded to the call and spoke with JB and RM. He watched the surveillance video, made a copy, and impounded it as evidence. Officer DR testified that he did not see any gun on the video recording.
¶4 A jury convicted Turrey of one count of shoplifting and two counts of aggravated assault. For the shoplifting conviction, the trial court sentenced Turrey to 180 days' incarceration with 180 days' credit for time served. For both counts of aggravated assault, the trial court sentenced Turrey to mitigated, concurrent terms of 10 years' incarceration with 236 days of presentence credit. Turrey filed a timely notice of appeal. We have jurisdiction under Arizona Constitution Article VI, Section 9, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and -4033(A)(1) (2010).
ISSUES AND STANDARD OF REVIEW
¶5 Turrey argues that the trial court erred when it (1) "incorrectly instructed the jury regarding a private person's authority to arrest, " and (2) failed to instruct the jury on the amount of force which the security agents could use in trying to restrain Turrey. Because Turrey failed to object to the proposed instructions, we review for fundamental error only. See State v. Ulin, 113 Ariz. 141, 144, 548 P.2d 19, 22 (1976) ("Absent fundamental error, the failure to object to [jury] instructions waives any defects."); see also State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Accordingly, Turrey has the burden to show error, that the error was fundamental, and that he was prejudiced thereby. See id. at 567, ¶ 20, 115 P.3d at 607.
I. Jury Instruction - Authority to Arrest
¶6 The trial court instructed the jury that "[a] private person has the right to make a private person arrest for an offense committed ...