State v. Repucci ( 2021 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
JOANNA MAHEALANI REPUCCI, Appellant.
No. 1 CA-CR 20-0486
FILED 12-16-2021
Appeal from the Superior Court in Maricopa County
No. CR2019-004016-001
The Honorable Jennifer C. Ryan-Touhill, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jennifer Roach
Counsel for Appellant
STATE v. REPUCCI
Decision of the Court
MEMORANDUM DECISION
Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge Peter B. Swann and Judge David D. Weinzweig joined.
M c M U R D I E, Judge:
¶1 Joanna Mahealani Repucci appeals from her convictions for
aggravated assault, resisting arrest, and disorderly conduct. We find no
reversible error and affirm.
FACTS1 AND PROCEDURAL BACKGROUND
¶2 Around 8:00 p.m. in October 2019, Maricopa County
Community College Police Officer Anderson2 worked in his campus office
when he heard screams. Concerned that someone was being attacked, the
officer investigated and came across Repucci standing at a bus stop,
screaming. He noticed medical-center security guards standing nearby.
Anderson testified that after seeing the guards, he “didn’t know if [Repucci]
was the victim of a crime, [or] if she had gotten into an altercation with the
security [guards] at the medical center.”
¶3 Anderson walked toward Repucci. He wore a standard police
uniform, which consisted of patches on both shoulders identifying his
police agency, a vest with “police” written on the front and back, his badge,
and his name. When Repucci saw the officer approaching, she put her
hands in the air and stopped screaming. Anderson repeatedly asked
Repucci if she needed help, but she would not answer his questions.
Moments later, still holding her hands in the air, Repucci told Anderson she
would not speak to him, resumed screaming, and took a step toward the
medical center’s two security guards.
1 We view the facts in the light most favorable to sustaining the
judgment. State v. Mendoza, 248 Ariz. 6, 11, ¶ 1, n.1 (App. 2019).
2 To protect the victim’s identity, we refer to the officer using a
pseudonym.
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¶4 Suspecting Repucci intended to resume an earlier altercation
with the guards, Anderson grabbed her wrist and told her to stay with him.
Repucci immediately swung her right arm at Anderson, striking him in the
head and shoulder with a one-pound water bottle. He quickly took her to
the ground and told her that she was under arrest. On the ground, Repucci
tucked her hands under her body and struggled with Anderson, ignoring
his repeated commands to stop resisting. He eventually gained control of
her right wrist and handcuffed her. Their entire encounter lasted roughly
30 seconds.
¶5 The State charged Repucci with two counts of aggravated
assault on a peace officer, class 5 felonies (Count 1—striking Officer
Anderson with the water bottle; Count 2—“pinching and/or scratching”
Officer Anderson); resisting arrest, a class 6 felony (Count 3); and disorderly
conduct, a class 1 misdemeanor (Count 4). At the trial, Repucci’s defense
was that she had protected herself after someone grabbed her in a dark,
high-crime area. Repucci did not take the stand, but she presented a defense
investigator who had worked previously as a California police officer. The
investigator testified that when he was a police officer, he would not detain
someone for screaming for an unknown reason absent some other crime
being involved.
¶6 During the settling of the final jury instructions, the court
granted Repucci’s request for a self-defense instruction, based on the
evidence showing Repucci was walking away when Officer Anderson
grabbed her wrist. But the court denied Repucci’s request for a
crime-prevention instruction under A.R.S. § 13-411 because “there was [no]
ongoing crime that the defendant was trying to prevent in striking the
officer.” When defense counsel countered that Repucci had been
“assaulted,” the court explained that it was “addressing [simple assault]
through the self-defense” instruction, and defense counsel then replied, “I
know. . . [but] we’re told to ask for [the crime-prevention instruction] every
time.”
¶7 The jury found Repucci guilty on Counts 1, 3, and 4 but
acquitted her on Count 2. The superior court suspended imposing a
sentence on all counts and placed Repucci on concurrent probation terms
totaling two years. Repucci appealed, and we have jurisdiction under
A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
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DISCUSSION3
¶8 Challenging only the aggravated-assault conviction, Repucci
argues the superior court improperly refused to give the crime-prevention
instruction. She claims that her act of striking the officer was justified to
prevent the crimes of aggravated assault, armed robbery, kidnapping, or
sexual assault.
¶9 “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.’” State v. Pina-Barajas, 244
Ariz. 106, 108, ¶ 4 (App. 2018) (quoting State v. Almeida, 238 Ariz. 77, 80, ¶ 9
(App. 2015)). “We view the evidence in the light most favorable to the party
requesting a jury instruction.” Pina-Barajas, 244 Ariz. at 108, ¶ 2.
¶10 A defendant is entitled to a justification instruction when “the
slightest evidence” supports the asserted defense. State v. Hussain, 189 Ariz.
336, 337 (App. 1997). Still, courts need not provide an instruction that
incorrectly states the law, does not fit the facts, or is covered by the other
instructions. Id. at 337; see also State v. Vassell, 238 Ariz. 281, 284, ¶ 9 (App.
2015) (a justification instruction is not required unless the evidence
“reasonably and clearly” supports it). In reviewing the superior court’s
denial of a justification instruction, we neither weigh the evidence nor
resolve evidentiary conflicts. Almeida, 238 Ariz. at 80, ¶ 9. Instead, we
decide only whether the record contains evidence “upon which the jury
could rationally sustain the defense.” Id. (quotation omitted).
¶11 The crime-prevention statute provides that a person is
justified in using “physical force against another if and to the extent the
3 In her opening brief, Repucci argued that the resisting-arrest
instruction violated Arizona Rule of Criminal Procedure 13.5(b) and her
constitutional rights to notice by including a purportedly uncharged
subsection of the resisting-arrest statute. Yet as she correctly concedes in
her reply brief, her arguments are foreclosed by this court’s recent decision
in State v. Luviano, No. 2 CA-CR 2019-0102, 2021 WL 3909623, at *3, ¶¶ 11-13
(App. Sept. 1, 2021) (holding that the resisting-arrest statute identifies a
unitary offense). Because Repucci has expressly withdrawn her challenges,
we do not consider them. See State v. Foshay, 239 Ariz. 271, 273, ¶ 5, n.2 (App.
2016) (declining to consider an argument the appellant abandoned in the
reply brief).
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person reasonably believes that [such] force is immediately necessary” to
prevent certain enumerated crimes. A.R.S. § 13-411(A) (including
aggravated assault involving “serious physical injury” or the use of a
“deadly weapon or dangerous instrument” under A.R.S.
§ 13-1204(A)(1)-(2), armed robbery, kidnapping, and sexual assault).
Section 13-411(A) “requires an objective, third person measure of the
reasonableness of a defendant’s preventive force.” Korzep v. Super. Ct., 172
Ariz. 534, 540 (App. 1991).
¶12 Because Repucci did not explicitly identify below the
enumerated crimes under A.R.S. § 13-411(A) that supported her requested
instruction, the parties dispute the standard of review we should apply to
the armed-robbery, kidnapping, and sexual-assault theories advanced on
appeal. Asserting that Repucci did not correctly preserve those issues for
review, the State argues that fundamental-error review is appropriate. But
Repucci contends we should review her arguments for harmless error.
“Regardless of how an alleged error ultimately is characterized, however, a
defendant on appeal must first establish that some error occurred.” State v.
Diaz, 223 Ariz. 358, 360, ¶ 11 (2010). Here, we conclude that no error
occurred. Thus, the parties’ standard-of-review debate is inconsequential,
and we need not address it.
¶13 The evidence did not support Repucci’s aggravated-assault
theory. See A.R.S. § 13-411(A) (restricting aggravated assault to A.R.S.
§ 13-1204(A)(1)-(2)). An aggravated assault under A.R.S. § 13-1204(A)(1)
occurs when a person commits a misdemeanor assault, see A.R.S. § 13-1203,
that causes serious physical injury. See A.R.S. § 13-105(39) (”Serious
physical injury includes physical injury that creates a reasonable risk of
death, or that causes serious and permanent disfigurement, serious
impairment of health or loss or protracted impairment of the function of
any bodily organ or limb.”). A person violates A.R.S. § 13-1204(A)(2) by
using a deadly weapon or dangerous instrument while committing a
predicate assault. See A.R.S. § 13-105(12) (defining dangerous instrument),
-105(15) (defining deadly weapon).
¶14 The uncontested trial evidence established the following
relevant facts: (1) Officer Anderson offered to help Repucci when he first
approached her, wearing a uniform that visibly showed he was a police
officer; (2) according to the security guards, Officer Anderson’s demeanor
was polite and non-threatening, but Repucci was “very belligerent,” “kind
of wild,” and “trying to ignore the officer’s commands”; (3) Repucci
immediately raised her hands when she saw the officer, then refused to
engage him in conversation; and (4) Officer Anderson grabbed her to
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prevent a possible confrontation with the guards after she began screaming
and moved toward them. Given these circumstances, a person in Repucci’s
situation could not reasonably believe that Officer Anderson’s quick wrist
grab posed a risk of death or serious bodily injury. See A.R.S.
§ 13-1204(A)(1). And Repucci does not cite, nor does the record contain, any
evidence suggesting Officer Anderson used a deadly weapon or dangerous
instrument in any way, much less to commit an underlying assault. See
A.R.S. § 13-1204(A)(2).
¶15 That said, Repucci claims that “if the [perpetrator] inflicted
enough injury, then it would be an aggravated assault.” But her
“speculation cannot substitute for evidence,” Vassell, 238 Ariz. at 284, ¶ 9,
and no evidence, direct or circumstantial, supports a reasonable belief that
the wrist grab could have produced the suggested outcome.
¶16 Nor does the evidence support Repucci’s contention that she
was “standing in the dark” when an “unidentified man” grabbed her.
Multiple witnesses reported that the bus stop’s lighting was adequate. Both
security guards testified that despite standing 80 feet away, they recognized
Anderson as a police officer and could view the events clearly. See id. at
284-85, ¶¶ 11–12, 17 (a justification instruction is unwarranted when the
supporting theory requires speculation that the defendant believes
intruders entering his residence are home invaders rather than police
officers). And the State introduced photographs of the bus stop that showed
multiple streetlights illuminating the area at night.
¶17 Had Repucci testified in support of her justification defense,
she might have presented evidence that based on what she saw and heard,
the circumstances reasonably led her to believe immediate action was
necessary to prevent an aggravated assault. Cf. Hussain, 189 Ariz. at 338(concluding the defendant’s version of events provided “the slightest
evidence”). But she chose not to take the stand. The remaining evidence
does not support an objectively reasonable belief that she was justified in
trying to stop Officer Anderson from committing an aggravated assault.
Moreover, even if the wrist grab might constitute misdemeanor assault, the
superior court correctly determined that the self-defense instruction
encompassed that theory. See A.R.S. § 13-411(A) (omitting misdemeanor
assault); Hussain, 189 Ariz. at 338. Repucci has thus failed to establish she
was entitled to the crime-prevention instruction because she hit the officer
to thwart an aggravated assault.
¶18 To support her contention that she thought an armed robbery
was imminent, she relies on defense counsel’s comments during the closing
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argument that Repucci was out at night in a high-crime area and anyone
“can go out to any shop and buy a police shirt. How many times do cops
come up to you and you put your hands up immediately? Someone’s going
to rob me.” But the defense counsel’s speculation about what Repucci might
have believed or perceived is not evidence, let alone evidence that
“reasonably and clearly” supports the requested instruction. See Vassell, 238
Ariz. at 284, ¶ 9. And Repucci’s characterization of counsel’s comments as
reasonable inferences drawn from the evidence does not alter that
conclusion. See id. (mere hypotheses “making an argument possible” does
not satisfy the slightest-evidence standard).
¶19 Likewise, there is no merit in Repucci’s conclusory
assertions—presented without citation to authority or supporting
argument—that she was acting to prevent a kidnapping or sexual assault.
Repucci makes no effort to explain how a person in her circumstances
reasonably could have believed Officer Anderson’s wrist grab amounted to
the imminent commission of: (1) “a knowing restraint coupled with one or
more of the specifically listed intentions,” State v. Eagle, 196 Ariz. 188, 190,
¶ 7 (2000), thereby constituting kidnapping under A.R.S. § 13-1304; or
(2) sexual assault under A.R.S. § 13-1406, meaning “intentionally or
knowingly engaging in sexual intercourse or oral sexual contact” without
the victim’s consent. Thus, she has not shown error.
¶20 Finally, Repucci misplaces her reliance on Almeida by arguing
the superior court “erred in refusing to give the crime prevention
instruction because it agreed to give a self-defense instruction.” Despite
Repucci’s contrary assertion, the superior court did not conclude, in
violation of Almeida, that the given self-defense instruction rendered the
crime-prevention instruction unnecessary. See Almeida, 238 Ariz. at 81–82,
¶¶ 17–20. Repucci cites the court’s comment that the self-defense
instruction addressed her assault theory to support her claim. Given the
context of the entire exchange, see supra ¶ 9, we construe the court’s remark
as referring to misdemeanor assault, which does not trigger the
crime-prevention defense’s protections. See, e.g., State v. Trostle, 191 Ariz. 4,
22 (1997) (we presume trial judges know the law and apply it in making
decisions).
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CONCLUSION
¶21 We affirm Repucci’s convictions.
AMY M. WOOD • Clerk of the Court
FILED: AA
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