from the Superior Court in Maricopa County No.
CR2016-123728-001 The Honorable Alfred M. Fenzel, Judge
Arizona Attorney General's Office, Phoenix By William
Scott Simon Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix By
Carlos Daniel Carrion Counsel for Appellant
Kent E. Cattani delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jennifer M.
Brian Jamel Matthews appeals his conviction and sentence for
resisting arrest. He argues that the superior court erred by
designating two arresting officers as victims and thus
allowing the officers to refuse pretrial defense interviews
under Arizona's Victims' Bill of Rights. Matthews
further argues that the court erred by declining to instruct
the jury (1) that passive resistance is a lesser-included
offense of resisting arrest, and (2) regarding excessive
force by law enforcement officers. We hold that multiple
arresting officers can be victims of a single charge of
resisting arrest under Arizona Revised Statutes
("A.R.S.") § 13-2508(A)(1), and that such
victims retain the right to refuse pretrial defense
interviews. We further hold that passive resistance is not a
lesser-included offense of resisting arrest through physical
force, and that the evidence did not support Matthews's
requested excessive force instruction. Accordingly, and for
reasons that follow, we affirm Matthews's conviction and
AND PROCEDURAL BACKGROUND
In May 2016, two Phoenix Police officers patrolling a south
Phoenix neighborhood recognized Matthews walking down the
street. Knowing that he had an outstanding warrant, the
officers turned their patrol car around to stop him, and one
of the officers called out to Matthews and made eye contact
with him, but he continued walking. Once the officers drew
closer, Matthews stopped and sat on a small electrical box,
but when one of the officers told Matthews there was an
outstanding warrant for his arrest, Matthews abruptly stood
up. The officers grabbed Matthews by his arms, but he
nevertheless tried to leave. The officers pinned Matthews
against a wall, but Matthews kept his arms in front of him
and lunged back and forth. The officers ordered him to stop
resisting, but he continued to struggle, so they brought him
to the ground. One officer placed his knee on Matthews's
back, and the officers together were able to pull his arms
behind his back to handcuff him.
Matthews had been shot in the back about two months earlier
and was still undergoing rehabilitation. After the arrest,
Matthews had to be taken to the hospital for injuries related
to the gunshot wound.
The State charged Matthews with one count of resisting arrest
"by using or threatening to use physical force against
the peace officer(s)." Following a jury trial, he was
convicted as charged, and the superior court sentenced him to
three years' imprisonment. Matthews timely appealed, and
we have jurisdiction under A.R.S. § 13-4033(A).
Designating the Officers as Victims.
Matthews contends that the superior court erred by finding
that the two police officers who arrested him were victims
under the Victims' Bill of Rights. See Ariz.
Const. art. 2. We review the superior court's
interpretation of this constitutional provision de novo.
State ex rel. Montgomery v. Padilla, 238 Ariz. 560,
564, ¶ 12 (App. 2015).
The Victims' Bill of Rights defines a "victim"
as a person "against whom the criminal offense has been
committed." Ariz. Const. art. 2, § 2.1(C). A victim
has the right to refuse a pretrial ...