State v. Bighorse ( 2022 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
GRANT BRADLEY BIGHORSE, Appellant.
No. 1 CA-CR 21-0461
FILED 10-13-2022
Appeal from the Superior Court in Coconino County
No. S0300CR202100020
The Honorable Cathleen Brown Nichols, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Tucson
By Jacob R. Lines
Counsel for Appellee
Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
STATE v. BIGHORSE
Decision of the Court
MEMORANDUM DECISION
Judge D. Steven Williams delivered the decision of the court, in which
Presiding Judge David D. Weinzweig and Judge Randall M. Howe joined.
W I L L I A M S, Judge:
¶1 Grant Bighorse appeals his conviction and sentence for one
count of misconduct involving weapons. For reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 One October 2020 afternoon, two Flagstaff police officers
looked for a shoplifting suspect at a local park. Bighorse was at the park,
holding clothing similar to what the suspect was wearing. As the officers
spoke with Bighorse, he scooped up his backpack and placed it on a park
table with his other belongings.
¶3 The officers noticed a knife with a seven-inch blade on the
table. The officers ruled out Bighorse as their shoplifting suspect, but
became concerned he might be prohibited from possessing the knife. The
officers arrested Bighorse once they confirmed he was a prohibited
possessor. The State charged Bighorse with one count of misconduct
involving weapons, a class four felony.
¶4 Before trial, Bighorse moved for dismissal, arguing the
charging information was legally insufficient. He contended that Arizona
law “only suspends the right of an individual to possess a firearm,” not a
knife. Bighorse also moved in limine to “preclude any opinions by any
officers regarding the ultimate issue” of whether the knife was a deadly
weapon.
¶5 At a pre-trial motions hearing, the court denied Bighorse’s
motion to dismiss. As to the motion in limine, the court instructed that
officers could testify whether the knife was “designed for lethal use” but
that the State could not ask “a question that [went] to the ultimate issue”
—whether the knife was a deadly weapon. The court informed Bighorse he
could object at trial to any “improper” question asked on the issue.
¶6 At trial, the State called Detective Hansen to testify about the
knife’s physical properties, as well as Bighorse’s status as a prohibited
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Decision of the Court
possessor. Over Bighorse’s objection, the detective testified about his
background as both a peace officer and a recreational hunter, knives he
used or encountered as a peace officer and hunter, and how a blade’s length
affects the knife’s use. The detective opined that the knife was designed for
lethal use and that it was a deadly weapon.
¶7 The jury convicted Bighorse as charged, and the court
sentenced him as a category three repetitive offender to a mitigated term of
six years imprisonment. Bighorse timely appealed.
¶8 We have jurisdiction under Article 6, Section 9, of the Arizona
Constitution and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
¶9 Bighorse contends the trial court erred by (1) denying his
motion to dismiss, and (2) allowing the detective to testify that the knife
was a “lethal weapon.”
I. Motion To Dismiss
¶10 We review a trial court’s denial of a motion to dismiss for an
abuse of discretion, but we review questions of constitutional law and
statutory interpretation de novo. State v. Holmes, 250 Ariz. 311, 313, ¶ 5
(App. 2020). When interpreting statutes, our aim is to give effect to the
legislature’s intent as evinced by the statute’s plain language. Glazer v. State,
244 Ariz. 612, 614, ¶ 9 (2018); see State v. Burbey, 243 Ariz. 145, 147, ¶ 7 (2017).
We analyze specific statutory provisions both in context of the statute as a
whole, as well as with other related statutes. Glazer, 244 Ariz. at 614, ¶ 10.
¶11 Bighorse contends that prohibited possessors are not
precluded from possessing a knife, only “a firearm, or a listed prohibited
weapon . . . defined in A.R.S. § [13-]3101(A)(8).” We disagree.
¶12 Section 13-3102(A)(4) is clear and unambiguous: “A person
commits misconduct involving weapons by knowingly . . . [p]ossessing a
deadly weapon . . . if such a person is a prohibited possessor.” A “deadly
weapon” is “anything that is designed for lethal use,” including a firearm.
A.R.S. § 13-3101(A)(1). A prohibited possessor is “any person . . . [w]ho has
been convicted . . . of a felony. . . and whose civil right to possess or carry a
firearm has not been restored.” A.R.S. § 13-3101(A)(7)(b).
¶13 Bighorse concedes that § 13-3102(A)(4) “standing alone is
interpretable,” but contends that when “read in conjunction” with several
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Decision of the Court
other statutes, one “cannot discern its proper application.” He points to
§ 13-904(A)(5) (felony conviction suspends the right to possess a firearm);
§ 13-907(C) (automatic restoration of rights for a first time serious or
dangerous felony offender does not include restoration of the right to
possess a firearm); and § 13-908(A) (upon final discharge from probation or
prison a felon may apply for restoration of the right to possess a firearm) to
argue that the right expressly prohibited for a felon is the right to possess a
firearm, not the right to possess a knife.
¶14 Bighorse’s reading, however, would render the definition of
“deadly weapon” in § 13-3101(A)(1) unnecessary. The statute expressly
states that a deadly weapon “includes a firearm.” If a firearm were the only
deadly weapon, there would be no need for the definition to “include[] a
firearm.” See State v. Moerman, 182 Ariz. 255, 260 (App. 1994) (noting a
presumption that the legislature does not include provisions that are
“redundant, void, inert, trivial, superfluous, or contradictory.”). Together,
sections 13-3101(A)(1) and -3102(A)(4) prohibit a felon from possessing not
just a firearm, but “anything that is designed for lethal use.” This court has
held in other decisions that § 13-3102 applies to non-firearm weapons. See,
e.g., State v. Clevidence, 153 Ariz. 295, 301 (App. 1987); see also State v.
Haggerty, 1 CA-CR 07-0086, 2008 WL 4358684, at *3, ¶¶ 10-11 (Ariz. App.
Sept. 25, 2008) (mem. decision); State v. Ewing, 1 CA–CR 10–0903, 2011 WL
5964515, at *4, ¶¶ 14-15 (Ariz. App. Nov. 29, 2011) (mem. decision); State v.
Will, 2 CA–CR 2011–0097, 2012 WL 1655839, at *2, ¶ 9 (Ariz. App. May 10,
2012) (mem. decision).
¶15 Bighorse also argues for the first time on appeal that
§ 13-3102(A)(4) is unconstitutionally vague. Because he did not raise the
issue with the trial court, he has waived his argument on appeal. State v.
Lopez, 170 Ariz. 112, 117 (1991) (holding that a party waived a constitutional
claim by not raising it at the trial court).
II. Expert Testimony
¶16 Expert testimony “is not objectionable just because it
embraces an ultimate issue” in a case. Ariz. R. Evid. 704(a). However, such
testimony must be helpful to a trier of fact, and it must refrain from merely
delivering legal conclusions that tell a jury how to decide a case. Webb v.
Omni Block, Inc., 216 Ariz. 349, 353, ¶ 12 (App. 2007). Though expert
testimony should not merely “parrot[] the words of [a] statute,” it is not
invalid simply because it includes or uses terms with a factual meaning that
also appear in a statute. Fuenning v. Superior Court, 139 Ariz. 590, 605 (1983);
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see Webb, 216 Ariz. at 535, ¶ 13. We review admission of expert testimony
for an abuse of discretion. State v. Chappell, 225 Ariz. 229, 235, ¶ 16 (2010).
¶17 Bighorse contends the trial court erred when it allowed
Detective Hansen to testify about the knife’s designed purpose. More
specifically, Bighorse argues the detective’s testimony was improper
because the trial court “made a pre-trial determination that expert
testimony was unnecessary.” He mischaracterizes the court’s ruling. The
court ruled that, subject to proper foundation, the State could “elicit from
the law enforcement witnesses” testimony regarding whether the knife had
“been designed for lethal use.”
¶18 Bighorse also takes issue with the following question the State
asked the detective: “So to be clear, based on both your personal and now
your professional experience, is the knife in question in this case a deadly
weapon?” The detective answered, “Yes.” We share Bighorse’s frustration
with the State’s question insofar as the prosecutor expressly stated at the
pretrial conference, “the State’s not going to elicit testimony about the
ultimate issue if the knife is a deadly weapon or not,” and “we certainly
wouldn’t have the [detective] testify that the knife itself is a deadly
weapon.”
¶19 But the detective’s testimony was not a bare legal conclusion
that told the jury what verdict was appropriate. He provided a factual basis
from his own personal use and professional experience with knives,
concluding that the knife was a deadly weapon. An expert opinion with
relevant factual foundation, even on an ultimate issue, is not a legal
conclusion. See State v. Carreon, 151 Ariz. 615, 617 (App. 1986) (holding that
officer testimony on whether “drugs were possessed for sale” did not
impermissibly instruct a jury). Though the detective’s testimony was not
necessary for the jury to conclude the knife was a deadly weapon, we
cannot say the court abused its discretion in allowing it. See State v. Palenkas,
188 Ariz. 201, 212 n. 7 (App. 1996) (“We overturn convictions for prejudicial
error, not to punish prosecutors for improper comments.”).
¶20 Finally, Bighorse contends the detective’s testimony was
irrelevant and overly prejudicial. The threshold for relevance, however, is
low, requiring only that evidence make some fact of consequence “more or
less probable than it would be without the evidence.” Ariz. R. Evid. 401;
State v. Tucker, 215 Ariz. 298, 313, ¶¶ 47, 51 (2007). And Bighorse has not
shown how the testimony prejudiced him. See MacMillan v. Schwartz, 226
Ariz. 584, 591, ¶ 33 (App. 2011) (“Merely mentioning an argument in an
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appellate opening brief is insufficient.”). On this record, Bighorse has
shown no error.
CONCLUSION
¶21 For the foregoing reasons, we affirm Bighorse’s conviction
and sentence.
AMY M. WOOD • Clerk of the Court
FILED: JT
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