Court of Appeals of Arizona, First Division, Department C
Not for Publication – Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Maricopa County Cause No. CR2011-030031-001 The Honorable Susanna C. Pineda, Judge
Thomas C. Horne, Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section And Andrew Reilly, Assistant Attorney General Attorneys for Appellee
James J. Haas, Maricopa County Public Defender Phoenix By Jeffrey L. Force, Deputy Public Defender Attorneys for Appellant
DIANE M. JOHNSEN, Chief Judge
¶1 James Leon Lawrence was convicted of resisting arrest. On appeal, he argues the jury instructions misstated the law and the evidence was insufficient to support his conviction. For the reasons that follow, we affirm Lawrence's conviction and the resulting sentence.
FACTS AND PROCEDURAL BACKGROUND
¶2 A Mesa police officer responded to a report of possible domestic violence at an apartment complex. The officer contacted a woman in the complex parking lot who explained that she had been in an altercation with Lawrence. The officer then contacted Lawrence and told him to put down a beer bottle he held in his hand. Lawrence refused. When the officer told Lawrence he would detain him for investigative purposes, Lawrence walked away. Concerned that Lawrence might attempt to flee or retrieve a weapon from an apartment, the officer followed Lawrence.
¶3 Lawrence eventually sat down in a chair in front of an apartment, set the beer bottle on the ground and lit a cigar. The officer approached Lawrence and again told him he would detain him for investigative purposes, this time adding that Lawrence was not free to go. When the officer told Lawrence to drop the cigar, Lawrence refused. When the officer grabbed Lawrence's left arm to handcuff and detain him, Lawrence jerked his arm away. The officer then used an "arm cast" to move Lawrence out of the chair and onto the ground, just as a second officer arrived to assist. Lawrence, however, struggled with the officers and resisted their attempts to handcuff him by kicking his legs and flailing his arms while still holding the cigar. During the struggle, the first officer repeatedly told Lawrence to drop the cigar and stop resisting. Lawrence refused. Lawrence eventually used the cigar to burn the first officer's cheek just below his eye. Once Lawrence burned the officer, the officer told him he was under arrest. Even then, Lawrence continued to struggle with the officers, and stopped only after the first officer began to shout that he was preparing to use his Taser.
¶4 The jury found Lawrence guilty of resisting arrest and aggravated assault, and the superior court sentenced him to an aggregate term of three years' imprisonment. On appeal, Lawrence contests only the resisting-arrest conviction. We have jurisdiction over Lawrence's timely appeal pursuant to Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(2013), 13-4031 (2013) and 13-4033 (2013).
¶5 Lawrence argues the jury instructions regarding resisting arrest misstated the law. We review the decision to give a jury instruction for abuse of discretion. See State v. Dann, 220 Ariz. 351, 363-64, ¶ 51, 207 P.3d 604, 616-17 (2009). Whether jury instructions properly state the law is an issue we review de novo. State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997) .
¶6 It is undisputed that the superior court properly instructed the jury on the elements of the crime of resisting arrest as specified in A.R.S. § 13-2508(A) (2013) using Revised Arizona Jury Instruction ("RAJI") Standard Criminal 25.08 (resisting arrest). Without being asked to do so, however, the court added to the instruction that "[a]n arrest is made by an actual restraint of the person to be arrested, or detained or by his submission to the custody of the person making the arrest or detainment." Contrary to this sua sponte instruction, the statute from which the court apparently drew the instruction reads as follows: "An arrest is made by an actual restraint of the person to be arrested, or by his submission to the custody of the person making the arrest." A.R.S. § 13-3881(A) (2013).
¶7 Neither party had asked the court to deviate from the statute. In doing so, the court stated it believed the definition was appropriate based on "an anomaly in the statutes" and on "case law, " but it did not cite any case law and did not explain further. The question is whether the superior ...