State v. Deshaies ( 2016 )


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  •                      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    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
    GREGORY NELSON DESHAIES, Appellant.
    No. 1 CA-CR 15-0319
    FILED 10-20-2016
    Appeal from the Superior Court in Maricopa County
    No. CR2010-153942-001
    The Honorable Sam J. Meyers, Judge
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Joseph T. Maziarz
    Counsel for Appellee
    Maricopa County Public Defender’s Office, Phoenix
    By Terry J. Adams
    Counsel for Appellant
    State v. Deshaies
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge Patricia K. Norris delivered the decision of the Court, in
    which Judge Samuel A. Thumma and Judge Margaret H. Downie joined.
    N O R R I S, Judge:
    ¶1            A jury convicted Defendant Gordy Nelson Deshaies of
    resisting arrest and criminal trespass.1 On appeal, Deshaies argues the
    superior court’s instruction regarding resisting arrest rendered the charge
    duplicitous. Because Deshaies did not object to the instruction, we review
    for fundamental error and find none. See State v. Henderson, 
    210 Ariz. 561
    ,
    567, ¶ 19, 
    115 P.3d 601
    , 607 (2005). Therefore, we affirm Deshaies’s
    conviction and sentence.
    ¶2             At trial, the superior court instructed the jury on the elements
    of resisting arrest as follows:2
    The crime of Resisting Arrest requires proof
    that:
    1. A peace officer, acting under official
    authority, sought to arrest either the
    defendant or some other person; and
    2. The defendant knew, or had reason to know,
    that the person seeking to make the arrest
    was a peace officer acting under color of
    such peace officer’s official authority; and
    3. The defendant intentionally prevented, or
    attempted to prevent, the peace officer from
    making the arrest; and
    1Deshaies   has not challenged his conviction for criminal
    trespass on appeal.
    2The superior court’s instruction mirrors the Revised Arizona
    Jury Instructions (Criminal) for the offense of resisting arrest. RAJI
    (Criminal) § 25.08 (2014).
    2
    State v. Deshaies
    Decision of the Court
    4. The means used by the defendant to prevent
    the arrest involved either the use or threat to
    use physical force or any other substantial
    risk of physical injury to either the peace
    officer or another.
    Whether the attempted arrest was legally
    justified is irrelevant.
    ¶3           In turn, Arizona Revised Statutes (“A.R.S.”) section
    13-2508(A) (Supp. 2015)3 defines the crime of resisting arrest as follows:
    A person commits the crime of resisting arrest
    by intentionally preventing or attempting to
    prevent a person reasonably known by him to
    be a peace officer, acting under color of such
    peace officer’s official authority, from effecting
    an arrest by:
    1. Using or threatening to use physical
    force against the peace officer.
    2. Using any other means creating a
    substantial risk of causing physical
    injury to the peace officer.
    3. Engaging in passive resistance.
    ¶4            Deshaies argues the three subsections of A.R.S. § 13-2508(A)
    establish three separate crimes and, therefore, paragraph four of the jury
    instructions, “the arrest involved either the use or threat to use physical
    force or any other substantial risk of physical injury,” (emphasis added),
    rendered the charge duplicitous. A duplicitous charge exists when an
    indictment refers to only one criminal act but multiple alleged criminal acts
    are introduced at trial to prove the single charge. State v. Paredes-Solano, 
    223 Ariz. 284
    , 287, ¶ 4, 
    222 P.3d 900
    , 903 (quotations and citation omitted).
    Depending on the context, a duplicitous charge can deprive a defendant of
    notice of the charge, create the “hazard” of a non-unanimous verdict, and
    make it impossible to precisely plead prior jeopardy in a subsequent
    3We cite to the current version of the statute, which has not
    been materially amended as relevant to our resolution of this appeal.
    3
    State v. Deshaies
    Decision of the Court
    prosecution. State v. Klokic, 
    219 Ariz. 241
    , 244, ¶ 12, 
    196 P.3d 844
    , 847 (App.
    2008) (citation omitted).
    ¶5            Assuming, without deciding, that the resisting arrest statute
    creates separate offenses, Deshaies fails to establish fundamental error
    resulting in prejudice because the evidence at trial and counsel’s arguments
    focused only on the “physical force” subsection of the statute. See State v.
    Johnson, 
    205 Ariz. 413
    , 417, ¶ 11, 
    72 P.3d 343
    , 347 (App. 2003) (appellate
    court considers closing arguments of counsel when evaluating jury
    instructions) (citation omitted). Thus, Deshaies was not defending against
    a duplicitous charge.
    ¶6            One of the arresting officers testified that when he and the
    other officer went to arrest Deshaies, instead of putting his arms behind his
    back, Deshaies began to pull his arms forward in an attempt to evade the
    arrest. The officer stated Deshaies brought his arm “up in an upward
    forward motion trying to get out of [the other officer’s] grasp.” Eventually,
    the officers were forced to move Deshaies into the prone position (on his
    stomach) because he was pulling away from them.
    ¶7            During closing arguments, the prosecutor argued, “What’s
    important is, did [Deshaies] pull against [the officers]? And yes, he did.
    That’s force.” Deshaies’s counsel similarly focused on physical force,
    arguing Deshaies had not used physical force against the officers. After
    quoting the definition of physical force contained in the jury instructions
    (force used upon or directed toward the body of another person), defense
    counsel argued, “Did Mr. Deshaies do that? No. There was no testimony of
    that whatsoever.” In rebuttal closing, the prosecutor added, “He pulled
    away from the officer and the officer’s hand, part of his body, when he
    made contact with the defendant. Both officers. That’s physical force
    against the body.” Accordingly, because the trial evidence and arguments
    of the parties implicated only one subsection of the statute, Deshaies has
    not met his burden in showing fundamental error resulting in prejudice.
    ¶8           Therefore, for the foregoing reasons, we affirm Deshaies’s
    conviction and sentence for resisting arrest.
    AMY M. WOOD • Clerk of the Court
    FILED: AA
    4
    

Document Info

Docket Number: 1 CA-CR 15-0319

Filed Date: 10/20/2016

Precedential Status: Non-Precedential

Modified Date: 4/18/2021