Court of Appeals of Arizona, Second Division, Department B
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20122386001 Honorable Scott Rash, Judge.
Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz and Jonathan Bass Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender By Michael J. Miller Attorneys for Appellant.
VIRGINIA C. KELLY, Presiding Judge.
¶1 Mark Barricklow appeals from his convictions and sentences for disorderly conduct and attempted aggravated assault with a deadly weapon or dangerous instrument. He argues the trial court erred by denying his requested jury instruction on defensive display of a weapon; permitting certain impeachment testimony; denying his motion for mistrial; and giving a jury instruction on the lesser-included offense of attempted aggravated assault. We affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to upholding Barricklow's convictions and sentences. See State v. Delgado, 232 Ariz. 182, ¶ 2, 303 P.3d 76, 79 (App. 2013). Barricklow and P.O. had been living together in an apartment complex. By June 2012, P.O. had removed Barricklow's name from the renewed lease and had asked him to move out. On June 16, P.O. called Barricklow and told him she had packed up his belongings and was putting them outside. Barricklow threatened to slash P.O.'s tires and kill her if she did not put his belongings back in the apartment. After P.O. finished talking with Barricklow on the phone, she called her neighbor D.H. and told him about Barricklow's threats. She then left and drove to the next block, where she could see the entrance to her apartment.
¶3 Barricklow rode to the complex on his bicycle and went up to P.O.'s fourth-floor apartment. He kicked in a window, entered the apartment, and began putting his belongings back inside. Neighbors D.H. and S.R. called the police when Barricklow arrived. When D.H., S.R., and others confronted Barricklow in front of P.O.'s apartment, he drew a foot-long knife, told them to "[s]tay back, " and threatened to kill anybody who tried to stop him. S.R. went back to her apartment to call the police again. After Barricklow was told the police were on their way, he ran to the ground floor. There, D.H. threw a cinder block at Barricklow's bicycle, and Barricklow cut D.H.'s arm with the knife.
¶4 Barricklow was charged with one count of aggravated assault of S.R. with a deadly weapon or dangerous instrument, two counts of aggravated assault of D.H. with a deadly weapon or dangerous instrument, and one count of aggravated assault of D.H. causing temporary but substantial disfigurement. Two counts were based on incidents on the fourth floor, and two were based on incidents on the ground floor. As to the first two counts, the jury found Barricklow guilty of the lesser-included offense of attempted aggravated assault against S.R. and guilty of the lesser-included offense of disorderly conduct by the reckless display of a deadly weapon or dangerous instrument. It found both were dangerous offenses. The jury found Barricklow not guilty of the final two charges. He was sentenced to an enhanced, slightly aggravated prison term of twelve years for attempted aggravated assault and a presumptive, concurrent term of 3.75 years for disorderly conduct. This appeal followed.
Requested Jury Instruction on A.R.S. § 13-421
¶5 Barricklow first argues the trial court erred by denying his request for a jury instruction based on A.R.S. § 13-421. He initially requested an instruction that consisted of language taken directly from the statute, which refers to the defensive display of a firearm, but later requested the trial court substitute "deadly weapon" or "knife" for firearm. We review a court's refusal to give a requested jury instruction for an abuse of discretion, State v. Moody, 208 Ariz. 424, ¶ 197, 94 P.3d 1119, 1162 (2004), but interpret statutory language de novo, State v. Francis, 224 Ariz. 369, ¶ 9, 231 P.3d 373, 375 (App. 2010). A defendant is entitled to a jury instruction "on any theory reasonably supported by the evidence." State v. Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d 1006, 1009 (1998). Nevertheless, the court is not required to give instructions that "are not correct statements of the law or . . . do not fit the facts of the case." State v. Rivera, 177 Ariz. 476, 479, 868 P.2d 1059, 1062 (App. 1994).
¶6 Section 13-421(A) provides: "The defensive display of a firearm by a person against another is justified when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the use or attempted use of unlawful physical force or deadly physical force." And A.R.S. § 13-105(19) provides, in relevant part: "In this title, unless the context otherwise requires: . . . . 'Firearm' means any loaded or unloaded handgun, pistol, revolver, rifle, shotgun or other ...