Court of Appeals of Arizona, First Division, Department C
Appeal from the Superior Court in Apache County Cause No. S0100CR201100080 The Honorable Donna J. Grimsley, Judge
Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section Andrew Reilly, Assistant Attorney General Attorneys for Appellee.
Emily Danies Tucson Attorney for Appellant.
MARGARET H. DOWNIE, Judge
¶1 Trevor Yazzie appeals his conviction and sentence for driving on a suspended license. Because the trial court did not instruct the jury regarding the mens rea necessary to convict Yazzie of this offense, we vacate Yazzie's conviction and sentence and remand for a new trial.
FACTS AND PROCEDURAL HISTORY
¶2 Yazzie was charged with aggravated driving under the influence ("DUI"), a class 4 felony ("count 1"), and driving on a suspended license, a class 1 misdemeanor ("count 2"). See Ariz. Rev. Stat. ("A.R.S.") §§ 28-1383(A)(1) (driving under the influence of intoxicating liquor with a suspended or revoked driver's license), -3473 (driving with a suspended or revoked license). Yazzie failed to appear for trial and was tried in absentia. A jury found him guilty of count 2 but acquitted him of count 1. Yazzie was sentenced to ten days' jail time and assessed a $650 fine. He timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A).
¶3 Yazzie's only challenge on appeal relates to the jury instruction given regarding count 2. Specifically, Yazzie contends the court should have instructed the jury that the offense of driving on a suspended license requires proof that he knew or should have known his license was suspended or revoked.
¶4 The State proposed a jury instruction for count 1 that stated it must prove, inter alia, that Yazzie's driver's license was suspended and that he "knew or should have known" of the suspension at the time of driving. The State's proposed instruction for count 2, though, included no mens rea, requiring it to prove only that Yazzie "drove a vehicle in this state" and that his "license or privilege to drive was suspended, revoked, canceled or refused." Defense counsel objected, asking the court to include the mens rea from count 1 in the instruction for count 2, stating:
I think there needs to be some mental state. I know that the agg DUI requires "knew or should have known" language. And I don't see why the Driving While Suspended would be any different. Because to drive on a suspended license, I think they still have to prove that he even knew his license was suspended, or should have known that his license was suspended.
Although the final jury instructions are not in the record on appeal (a practice we strongly discourage), the parties agree that the court gave the State's proposed instructions.
¶5 We review de novo whether jury instructions correctly state the law. State v. Gonzales, 206 Ariz. 469, 471, ¶ 7, 80 P.3d 276, 278 (App. 2003). Section 28-3473(A) does not specify a mens rea for the misdemeanor offense of driving on a suspended license. It reads:
[A] person who drives a motor vehicle on a public highway when the person's privilege to drive a motor vehicle is suspended, revoked, canceled or refused or when the person is disqualified ...