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State v. Pina-Barajas

Court of Appeals of Arizona, Second Division

March 30, 2018

The State of Arizona, Appellee,
Jesus Aaron Pina-Barajas, Appellant.

          Appeal from the Superior Court in Pima County No. CR20121435001 The Honorable Howard Fell, Judge Pro Tempore

          Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Elizabeth B. N. Garcia, Assistant Attorney General, Phoenix Counsel for Appellee

          Joel Feinman, Pima County Public Defender By Michael J. Miller, Assistant Public Defender, Tucson Counsel for Appellant

          Chief Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Staring and Judge Brearcliffe concurred.


          ECKERSTROM, Chief Judge

         ¶1 Jesus Pina-Barajas appeals his conviction and sentence for unlawful possession of a deadly weapon by a prohibited possessor, arguing the court should not have precluded his defense of necessity. For the reasons that follow, we affirm.

         Factual and Procedural History

         ¶2 We view the evidence in the light most favorable to the party requesting a jury instruction. State v. Almeida, 238 Ariz. 77, ¶ 9 (App. 2015). In April 2012, an officer with the Tucson Police Department was investigating an incident involving Pina-Barajas when he looked into the cab of Pina-Barajas's truck and saw the handle of a gun. The officer obtained a search warrant and found three handguns, a pistol magazine, and ammunition. After first denying that he owned the items, Pina-Barajas later admitted to owning the guns, to having been convicted of a felony, and that "he wasn't supposed to have guns."

         ¶3 At trial, Pina-Barajas sought to admit additional statements he had made to detectives explaining he had obtained the guns after a certain man threatened him and shot at him approximately two weeks earlier. Pina-Barajas also sought to admit the statements pursuant to the rule of completeness. See Ariz. R. Evid. 106. The court precluded the statements on both grounds, and the jury found Pina-Barajas guilty of possession of a deadly weapon by a prohibited possessor. The court sentenced him to an enhanced, minimum term of three years. Pina-Barajas appealed; we have jurisdiction. A.R.S. §§ 13-4031, 13-4033(A)(1).

         Necessity Defense

         ¶4 Pina-Barajas contends the trial court erred by precluding his necessity defense. Specifically, he argues he was entitled to introduce certain statements he made to detectives establishing that defense and to have the jury instructed accordingly. We review a trial court's evidentiary rulings for an abuse of discretion. State v. Fish, 222 Ariz. 109, ¶ 8 (App. 2009). Although we normally review denial of a jury instruction for an abuse of discretion, "we independently assess whether the evidence supported a justification instruction, because that is a question of law and involves no discretionary factual determination." Almeida, 238 Ariz. 77, ¶ 9.

         ¶5 The trial court may preclude a defense when the defendant fails to "demonstrate he can produce some evidence in support [thereof]." State v. Medina, No. 2 CA-CR 2017-0035, ¶ 12, 2018 WL 1403818 (Ariz.Ct.App. Mar. 20, 2018). To warrant an instruction a defendant need only produce "slightest evidence." Id. To establish necessity, a defendant must show that he "was compelled to engage in the proscribed conduct and . . . had no reasonable alternative to avoid imminent . . . injury greater than the injury that might reasonably result from the person's own conduct." A.R.S. § 13-417(A). An imminent injury is one that is immediate, "about to occur, " or "impending." State v. Dominguez, 236 Ariz. 226, ¶¶ 4-6 (App. 2014), quoting The American Heritage Dictionary 879 (5th ed. 2011). A threat of imminent injury is necessarily distinct from one of "eventual harm, " which "would functionally erase the imminence element from our statute's definition of the necessity defense." Medina, 2018 WL 1403818 ¶ 9. In Medina, this court determined a threat occurring almost "a month" before the defendant was found in possession of a weapon was too remote in time to establish "slightest evidence" of a threat of imminent injury. Id. ¶¶ 11-12.

         ¶6 Further, in addressing other justification defenses, Arizona courts have determined that justification based on imminent or immediate threats dissipates rapidly or is confined within a particular transaction. See generally A.R.S. §§ 13-404 to 13-421. In In re Roy L., this court concluded that a juvenile carrying a firearm was properly precluded from arguing self-defense because, on the day he was arrested, he had not seen the rival gang member who had threatened him. 197 Ariz. 441, ¶ 22 (App. 2000). In State v. Almeida, we stated that a justification instruction for crime prevention is not warranted once a crime has been "fully completed, leaving nothing to prevent." 238 Ariz. 77, ¶ 14. But we determined the defendant was entitled to a crime-prevention instruction because "[t]he evidence supported an ongoing episode of road rage . . . rather than a discrete aggravated assault." Id. ¶ 15.

         ¶7 In addition to imminence, the necessity defense requires that the defendant have had no reasonable alternative. § 13-417(A). Thus, the risk of injury must be both imminent and the person at risk must have no reasonable alternative to avoid that injury short of violating the law. We read these two core requirements of a necessity defense together. See State v. Gaynor-Fonte,211 Ariz. 516, ΒΆ 13 (App. 2005) (we interpret individual provisions in context of entire statute). Specifically, a threat of injury must be sufficiently imminent that reasonable persons would have lacked the time to pursue reasonable lawful alternatives. Ordinarily, as time elapses, other reasonable, legal courses of action become increasingly ...

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