State v. Richardson ( 2020 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
GERALD RICHARDSON, Appellant.
No. 1 CA-CR 19-0429
FILED 12-15-2020
Appeal from the Superior Court in Mohave County
No. S8015CR201801820
The Honorable Derek C. Carlisle, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Joshua C. Smith
Counsel for Appellee
Law Offices of Harriette P. Levitt, Tucson
By Harriette P. Levitt
Counsel for Appellant
STATE v. RICHARDSON
Decision of the Court
MEMORANDUM DECISION
Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Cynthia J. Bailey joined.
C A T T A N I, Judge:
¶1 Gerald Richardson appeals his conviction and sentence for
one count of reckless manslaughter. He argues that the evidence was
insufficient to support the jury’s verdict and that the court erred by
precluding evidence of his character for peacefulness and by improperly
instructing the jury. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 Richardson lived in Golden Valley with his girlfriend and her
ten-year-old daughter, M.K. In October 2018, Jessica O. picked up M.K. to
spend time with Jessica O.’s ten-year-old nephew, J.K. Neither Richardson
nor his girlfriend were sure whether M.K. would return home that night or
spend the night at Jessica O.’s home.
¶3 After Jessica O. and the children spent the day together, the
three arrived at Richardson’s home around 9:30 p.m. to drop off M.K. Both
Richardson and his girlfriend were asleep in the living room at the time.
Jessica O. and the children approached the home and noticed that no lights
were on. Richardson’s front door was unlocked, and Jessica O. tried to open
the door slightly three times. After the second attempt, Richardson’s dogs
began barking.
¶4 Richardson awoke and grabbed a gun that he kept near the
couch on which he was sleeping. In what Richardson described as an
attempt to scare away someone he perceived to be an intruder, he fired at
the door. The bullet struck Jessica O. in the back, and she fell to the ground.
When Richardson discovered that he had shot her, he called the police, who
responded to the scene with paramedics. Jessica O. was transported to the
hospital, but doctors were unable to revive her, and she was pronounced
dead.
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STATE v. RICHARDSON
Decision of the Court
¶5 Richardson was indicted on one count of reckless
manslaughter for killing Jessica O., the victim.1 After a four-day trial, the
jury found him guilty as charged. The jury also found that the State proved
that the offense was dangerous and that the victim’s immediate family
suffered emotional harm. The court sentenced Richardson to a
presumptive term of 10.5 years in prison. Richardson timely appealed, and
we have jurisdiction under A.R.S. § 13-4033(A)(1).
DISCUSSION
I. Sufficiency of the Evidence.
¶6 Richardson first argues that the evidence presented at trial
was insufficient to support his conviction. We review the sufficiency of the
evidence de novo. State v. Dunbar, 249 Ariz. 37, 47, ¶ 19 (App. 2020). “We
will reverse a conviction only if no substantial evidence supports it.” State
v. Morgan, 248 Ariz. 322, 325, ¶ 7 (App. 2020). “Substantial evidence is such
proof that reasonable persons could accept as adequate and sufficient to
support a conclusion of defendant’s guilt beyond a reasonable doubt.” Id.
(quoting State v. Mathers, 165 Ariz. 64, 67 (1990)). “We resolve any conflicts
in the evidence against the defendant and view all facts in the light most
favorable to supporting the verdict.” State v. Pena, 235 Ariz. 277, 279, ¶ 5
(2014).
¶7 As relevant here, “[a] person commits manslaughter by . . .
[r]ecklessly causing the death of another person.” A.R.S. § 13-1103(A)(1).
A person acts recklessly when the “person is aware of and consciously
disregards a substantial and unjustifiable risk that the result will occur or
that the circumstance exists.” A.R.S. § 13-105(10)(c).
¶8 Richardson specifically argues that no evidence in the record
established that he consciously disregarded the risk of harm to another. We
disagree.
1 Richardson was also indicted on two counts of child endangerment.
He subsequently moved the superior court to remand to the grand jury for
a redetermination of probable cause, arguing that the State did not
adequately instruct the grand jury on justification defenses. After the
superior court denied the motion, Richardson petitioned this court for
special action relief. We granted relief in part and ordered the superior
court to dismiss the two endangerment counts and remand for a
redetermination of probable cause. After the dismissal, the State did not,
however, re-present the case to the grand jury.
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STATE v. RICHARDSON
Decision of the Court
¶9 A jury may infer from the evidence that a defendant
consciously disregarded a risk of harm to others, and here, the evidence
presented at trial supported such an inference. See State v. Carreon, 210 Ariz.
54, 63, ¶¶ 40–43 (2005), supplemented by 211 Ariz. 32 (describing
circumstantial evidence from which the jury could infer a conscious
disregard of a substantial risk of harm). It was undisputed that Richardson
shot and killed the victim after being startled awake that night. In his
statement to an officer, Richardson stated that the room was entirely black
at the time, and he did not see who he was firing at. Although Richardson
stated that he was trying to “scare away” an intruder, he did so not by
shouting a warning or firing a shot into the ground, but by firing through
the door at an angle such that he hit the victim in the back. Further, it was
only 9:30 p.m., and Richardson’s girlfriend testified that she believed
Richardson was aware that her daughter had not yet returned home. The
State was permitted to rely on this circumstantial evidence to establish a
conscious disregard, and a reasonable jury could infer that Richardson
knew at the time of the shooting that he was creating a substantial risk of
harm. See State v. McGill, 213 Ariz. 147, 153, ¶ 19 (2006); State v. Miles, 211
Ariz. 475, 482, ¶ 27 (App. 2005).
¶10 Moreover, Richardson’s counsel conceded during closing
argument that Richardson committed “a reckless shooting”; Richardson’s
defense was that the shooting was justified. Richardson’s argument on
appeal that he “merely reacted to an intruder coming into his home when
he had no reason to believe that anyone was supposed to come to his house
after he had retired for the night” conflates the elements of recklessness
with those of his justification defense. See State ex rel. Thomas v. Duncan, 216
Ariz. 260, 265, ¶ 17 (App. 2007) (“Being ‘aware’ of the risk and the
‘justifiability’ of the risk are also separate and distinct inquiries.”).
¶11 In sum, substantial evidence supports the jury’s finding that
Richardson recklessly caused the victim’s death.
II. Character for Peacefulness.
¶12 Richardson next argues that the superior court erred by
precluding evidence of his character for peacefulness. We review the
exclusion of evidence for an abuse of discretion. State v. Fuentes, 247 Ariz.
516, 524, ¶ 27 (App. 2019). A defendant may offer evidence of his or her
good character trait as substantive evidence that he or she did not commit
the crime. State v. Rhodes, 219 Ariz. 476, 478, ¶ 10 (App. 2008). However,
that character trait must be relevant to the crime charged. See Ariz. R. Evid.
402. Accordingly, evidence of a defendant’s good character trait will be
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STATE v. RICHARDSON
Decision of the Court
admissible only if it pertains to a trait involved in the crime. Rhodes, 219
Ariz. at 479, ¶ 10.
¶13 Richardson argues that because he was charged with reckless
manslaughter, he was entitled to present evidence that he was generally a
nonviolent person to prove his justification defense and negate the State’s
claim he was reckless.
¶14 As discussed above, a defendant is guilty of manslaughter if
he or she recklessly causes the death of another. A.R.S. § 13-1103(A)(1).
Richardson consistently admitted that he shot and killed the victim. His
defense was that shooting the victim was justified under the circumstances,
and he sought to introduce evidence of his nonviolent character to establish
that recklessly causing the death of another was out of character. But a
personal character for peacefulness was not relevant to address
justification, because justification is assessed based on what a reasonable
person would have done under similar circumstances. See Cespedes v. Lee,
243 Ariz. 46, 50, ¶ 15 (2017) (“Generally, an objective standard is used in
determining whether a defendant’s use of force was reasonable.”). Thus,
Richardson’s alleged peaceful character was not relevant to the jury’s
determination of how a reasonable person would have responded under
the circumstances. See Ariz. R. Evid. 401(a).
III. Jury Instructions.
¶15 Finally, Richardson argues that the court improperly
instructed the jury that the victim was an invitee. We review the superior
court’s decision whether to give a jury instruction for an abuse of discretion.
Dunbar, 249 Ariz. at 45, ¶ 30. A party is entitled to a jury instruction
reasonably supported by the “slightest evidence.” State v. Almeida, 238
Ariz. 77, 79, ¶ 9 (App. 2015).
¶16 Richardson’s argument relies on a mischaracterization of the
superior court’s instruction. Contrary to Richardson’s assertions, the
superior court did not “h[o]ld that [the victim] was an invitee,” nor did the
court “essentially instruct[] the jury that [the victim] was an invitee.”
Instead, the court instructed the jury:
The defendant is presumed to reasonably believe that the
threat or use of physical force or deadly force is immediately
necessary if the defendant knows or has reason to believe that
the person against whom physical force or deadly force is
threatened or used is unlawfully or forcefully entering or has
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STATE v. RICHARDSON
Decision of the Court
unlawfully or forcefully entered and is present in the
defendant’s residential structure.
For the purposes of justification, a person who is unlawfully
or forcefully entering or who has unlawfully or forcefully
entered and is present in a residential structure is presumed
to pose an imminent threat of unlawful deadly harm to any
person who is in the residential structure.
These presumptions do not apply if:
The person against whom the physical force or deadly
physical force was threatened or used had the right to be in or
was a lawful resident of the residential structure, including an
invitee.
¶17 Here, the evidence presented at trial supported the invitee
instruction, namely, Richardson’s girlfriend’s testimony that the victim and
J.K. were always welcome at the house. The jury could have relied on that
statement, along with M.K.’s testimony that the victim had dropped her off
at the home in the past and that the door was unlocked that night when it
would usually be locked, to conclude the victim was an invitee.
¶18 Moreover, the invitee status of the victim and J.K.
notwithstanding, the instruction at issue did not preclude Richardson from
arguing that he did not know who was outside the door and that his
conduct was reasonable and justified under the circumstances presented.
The instruction only precluded Richardson from asserting that there was a
presumption that his conduct was reasonable. Accordingly, the court did
not err or otherwise deny Richardson a right essential to his defense by
instructing the jury regarding the effect of an invitee attempting to enter the
residence.
CONCLUSION
¶19 For the foregoing reasons, we affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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