Opinion
No. 1 CA-CR 12-0317
03-14-2013
STATE OF ARIZONA, Appellee, v. DUANE JOSEPH OBERSHAW, Appellant.
Thomas C. Horne, Arizona Attorney General By Andrew Reilly, Assistant Attorney General Attorneys for Appellee James Haas, Maricopa County Public Defender By Margaret M. Green, Deputy Public Defender Attorneys for Appellant
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c);
Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2011-101583-001
The Honorable Pamela D. Svboda, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Andrew Reilly, Assistant Attorney General
Attorneys for Appellee
Phoenix James Haas, Maricopa County Public Defender
By Margaret M. Green, Deputy Public Defender
Attorneys for Appellant
Phoenix BROWN, Judge ¶1 Duane Joseph Obershaw appeals his conviction and sentence for one count of aggravated driving while under the influence of drugs. For the following reasons, we affirm.
BACKGROUND
¶2 On June 24, 2010, a police officer saw Obershaw commit several civil traffic violations. The officer initiated a traffic stop and noticed Obershaw was displaying several signs consistent with marijuana impairment. Obershaw was placed under arrest and later provided a urine sample that revealed the presence of a marijuana metabolite. ¶3 Obershaw was charged with violating Arizona Revised Statutes ("A.R.S") section 28-1381 (2012). Count One alleged Obershaw drove while under the influence of intoxicating liquor or drugs while his driver's license was suspended or revoked. Count Two alleged Obershaw drove while there was any drug or its metabolite as defined in A.R.S. § 13-3401 in his body. At trial, the parties stipulated that Obershaw knew his license was suspended. At the close of the State's case, the trial court granted Obershaw's motion for judgment of acquittal as to Count One. Obershaw then declined to call any witnesses and the jury found Obershaw guilty of Count Two. The court sentenced Obershaw to four months' imprisonment to be followed by three years' probation. This timely appeal followed.
Absent material revisions after the relevant date, we cite a statute's current version.
Counts Three and Four, stemming from Obershaw's prior convictions, were dismissed prior to trial.
DISCUSSION
¶4 Obershaw argues the court committed reversible error when it refused to give the voluntary act instruction he requested. We review a trial court's decision not to give a proffered jury instruction for an abuse of discretion. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). We will not reverse a conviction unless the defendant suffered prejudice as a result of the decision. State v. Snodgrass, 121 Ariz. 409, 411, 590 P.2d 948, 950 (App. 1979). A defendant is entitled to a jury instruction if it is reasonably supported by the evidence. Bolton, 182 Ariz. at 309, 896 P.2d at 849. ¶5 During opening statements, defense counsel urged the jury to return a not guilty verdict because the evidence would fail to show Obershaw voluntarily ingested marijuana, which he alleged the State had the burden to prove. The State moved to strike defense counsel's comment and sought to prohibit defense counsel from examining law enforcement witnesses relating to a "voluntary act" and from arguing the lack of a "voluntary act" in closing. The State further sought to preclude a voluntary act jury instruction. At side bar, defense counsel argued that "passive inhalation is under voluntary act and under [A.R.S. § 13-201]" and "the State has to prove there was a voluntary act." Defense counsel further asserted that passive inhalation would be a defense to driving under the influence of drugs and that the voluntary act instruction must be given because it is a "standard" criminal instruction. Expressing concern about whether the evidence would support the requested instruction, the trial court deferred ruling on the issue until after the State's criminalist testified. The State unsuccessfully moved for reconsideration to preclude defense counsel from exploring the issue of passive inhalation. ¶6 The criminalist testified it was not possible for the levels of metabolite found in Obershaw's system to be the result of passive inhalation. The criminalist opined that no realistic circumstance of passive inhalation could have created the high concentration levels of metabolite found in Overshaw's urine. Following the criminalist's testimony, the court ruled that no reasonable inference could be drawn that Obershaw contracted the metabolite by means of passive inhalation; thus, the court declined Obershaw's request to give the jury a voluntary act instruction. The court also ruled Obershaw was precluded from arguing passive inhalation during closing arguments. ¶7 Obershaw argues that because the requested instruction was a "standard instruction" used to educate jurors, the trial court was obligated to give it. We acknowledge that § 13-201 states that "[t]he minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act[.]" However, Obershaw's argument falls short because he fails to address the general rule that a jury instruction need only be given if reasonable evidence supports it. See, e.g., State v. Moody, 208 Ariz. 424, 468, ¶ 201, 94 P.3d 1119, 1163 (2004) (holding that no evidence reasonably supported a voluntary act instruction and thus the trial court did not err in refusing to give the instruction); State v. Lara, 183 Ariz. 233, 234-35, 902 P.2d 1337, 1338-39 (1995) (recognizing the voluntary act instruction is not always required). ¶8 No evidence was offered at trial to support an argument that Obershaw involuntarily inhaled marijuana smoke, which then created the marijuana metabolite. In asking for the instruction, Obershaw relied solely on the criminalist's testimony stating she could not "tell just solely based on the process of the [metabolite] . . . how the person consumed it or how the drug got into the body." However, the criminalist clarified that in her opinion, the metabolite found in Obershaw's urine was not the result of passive inhalation. The criminalist stated that the levels of metabolite Obershaw demonstrated could not be achieved through passive inhalation except under "unrealistic" conditions. We therefore agree with the trial court's determination that no reasonable jury could find that the concentration of metabolite in Obershaw's urine resulted from passively inhaling marijuana smoke. ¶9 Moreover, Obershaw fails to cite any authority, and we have found none, for the proposition that merely because an instruction is "standard" it must be given. Indeed, Obershaw's argument is plainly inconsistent with our supreme court's decision in Moody that the voluntary act instruction was not justified because it was unsupported by the evidence. 208 Ariz. at 468, ¶ 201, 94 P.3d at 1163. Furthermore, a review of Arizona's "Standard Criminal Jury Instructions," which include instructions for "stipulations," "voluntariness of defendant's statements," "flight or concealment", "lost, destroyed, or unpreserved evidence," and "involuntary intoxication," clearly shows that not every "standard" instruction is appropriate for every case. See generally Rev. Ariz. Jury Instr. ("RAJI") Stand. Crim. 1-51.
Revised Arizona Jury Instructions ("RAJI") Standard Criminal 17 (Voluntary Act), provides as follows:
Before you may convict the defendant of the charged crime(s), you must find that the State proved beyond a reasonable doubt that the defendant [committed a voluntary act] [omitted to perform a duty imposed upon the defendant by law that the defendant was capable of performing]. A voluntary act means a bodily movement performed consciously and as a result of effort and determination. You must consider all the evidence in deciding whether the defendant [committed the act voluntarily] [failed to perform the duty imposed on the defendant].
Alternatively, Obershaw argues there was evidence to support a voluntary act instruction based on "driving" as the voluntary act. We do not address this argument because it was raised for the first time in Obershaw's reply brief. State v. Guytan, 192 Ariz. 514, 520, ¶ 15, 968 P.2d 587, 593 (App. 1998). Further, Obershaw did not argue at trial and does not argue on appeal that he involuntarily drove the car in which he was stopped.
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CONCLUSION
¶10 Because there was no evidence to support a voluntary act jury instruction, the court did not abuse its discretion by refusing to give the instruction. Thus, we affirm Obershaw's conviction and sentence.
______________________________
MICHAEL J. BROWN, Judge
CONCURRING: ______________________________
SAMUEL A. THUMMA, Presiding Judge
_______________________
DIANE M. JOHNSEN, Judge