State v. Teran

68 Arizona Cases Digest 11

510 P.3d 502

STATE of Arizona, Appellee,

v.George TERAN, Appellant.

No. 1 CA-CR 21-0148

Court of Appeals of Arizona, Division 1.

FILED April 19, 2022

Arizona Attorney General's Office, Phoenix, By Gracynthia Claw, Counsel for Appellee

Yuma County Public Defender's Office, Yuma, By Robert J. Trebilcock, Counsel for Appellant

Vice Chief Judge David B. Gass delivered the opinion of the court, in which Presiding Judge Paul J. McMurdie and Judge Angela K. Paton joined.

GASS, Vice Chief Judge:

¶1 George Teran appeals his convictions and the resulting concurrent sentences for manslaughter and two counts of driving under the influence (DUI). He does not appeal his conviction for possession of drug paraphernalia. We vacate and remand his manslaughter conviction but affirm his remaining convictions.

FACTUAL AND PROCEDURAL HISTORY

¶2 This court views the facts in the light most favorable to sustaining the jury's verdicts, resolving all reasonable inferences against Teran. See State v. Felix , 237 Ariz. 280, 283, ¶ 2, 349 P.3d 1117, 1120 (App. 2015).

¶3 Teran was driving when he struck and killed a victim as she stepped off the median and started to cross the roadway. The victim and two friends were walking along a red brick pathway that connected a canal-access road and ran perpendicular to the roadway. The two friends stayed in the median because they saw Teran approaching and were surprised the victim stepped into the roadway. Teran was driving between 44 and 55 miles per hour (M.P.H.), and he did not brake or otherwise try to avoid the collision. The posted speed limit was 40 M.P.H.

¶4 Immediately after the collision, Teran pulled over and called 911. He said he hit a pedestrian "crosswalking" when the pedestrian "jumped in front of [him]." When officers later interviewed Teran, he said he saw three or four girls "in the crosswalk ... in the median ... doing the right thing" and he heard "stop, don't go" when the victim "jumped in front of [his] car."

¶5 The interviewing officer noted Teran slurred his speech and his eyes were "droopy." Teran admitted to smoking marijuana two nights before the accident and to having half an ounce of marijuana "wax" in his backpack in his car. Officers drew a sample of Teran's blood under a search warrant. Subsequent testing revealed Teran's blood sample contained a blood concentration level of approximately 36 nanograms of Xanax per milliliter and 14 nanograms of tetrahydrocannabinol (THC) per milliliter.

¶6 Xanax is a brand name for the drug alprazolam, a prescription sedative. THC is the primary psychoactive component of cannabis. State ex rel. Montgomery v. Harris , 234 Ariz. 343, 343, ¶ 1 n.1, 322 P.3d 160, 160 (2014). Teran's blood sample also contained Carboxy-THC, a non-impairing metabolite of THC. The superior court correctly instructed the jurors the presence of Carboxy-THC does not show impairment. See id. at 347–48, ¶ 25, 322 P.3d at 164–65 (affirming dismissal of DUI charge because Carboxy-THC does not cause impairment).

¶7 A search of Teran's car uncovered a partial Xanax pill in the center console and a backpack containing two glass jars of a green leafy substance together with the marijuana wax Teran described.

¶8 The State charged Teran with second-degree murder, two counts of misdemeanor DUI (drugs), transportation of narcotic drugs for sale, transportation of marijuana for sale, possession of a dangerous drug, and possession of drug paraphernalia.

¶9 The first trial ended in a mistrial based on a disclosure issue. Before Teran's retrial, the superior court severed the counts for transportation of narcotic drugs for sale and transportation of marijuana for sale from the other charged offenses.

¶10 The jury found Teran not guilty of second-degree murder but guilty of manslaughter as a lesser-included offense. As a result of the manslaughter conviction, the jury did not consider the lesser-included offense of negligent homicide. As for the remaining counts, the jury found Teran guilty of both DUI charges and the possession of drug paraphernalia charge, but not guilty of the possession of a dangerous drug charge. The superior court imposed concurrent prison sentences, the longest being 10.5 years for the manslaughter conviction, with appropriate presentence incarceration credit. Teran timely appealed. This court has jurisdiction under article VI, section 9, of the Arizona Constitution, and A.R.S. §§ 13-4031 and 13-4033.A.1.

ANALYSIS

I. Jury Instructions

¶11 Teran challenges the superior court's failure to instruct the jury on three issues: (1) a crosswalk instruction; (2) "right-of-way" instructions; and (3) a proposed lesser-included offense.

¶12 This court reviews the refusal to give a jury instruction for abuse of discretion. State v. Hurley , 197 Ariz. 400, 402, ¶ 9, 4 P.3d 455, 457 (App. 2000). An abuse of discretion occurs when the superior court's refusal to instruct the jury on a particular point of law is "clearly untenable, legally incorrect, or amount[s] to a denial of justice." State v. Chapple , 135 Ariz. 281, 297 n.18, 660 P.2d 1208, 1224 (1983), superseded by statute on other grounds . A defendant is generally entitled to a jury instruction on any theory reasonably supported by the evidence. State v. Johnson , 205 Ariz. 413, 417, ¶ 10, 72 P.3d 343, 347 (App. 2003). "A set of instructions need not be faultless; however, they must not mislead the jury in any way and must give the jury an understanding of the issues." State v. Noriega , 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996).

A. The "Crosswalk" Instruction

¶13 Teran first contends the superior court should have sua sponte instructed the jury the victim was not in a crosswalk when the accident occurred. The correct definition of a crosswalk is a question of law. But whether the area in question was a crosswalk was a disputed factual issue about which witnesses offered conflicting testimony. Teran's requested instruction would violate our constitution by having the superior court comment impermissibly on the evidence. See Ariz. Const. art. 6, § 27 ("Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law."); see also State v. Rodriguez , 192 Ariz. 58, 64, ¶ 29, 961 P.2d 1006, 1012 (1998) (superior court cannot "express an opinion as to what the evidence proves" or "interfere with the jury's independent evaluation of that evidence"). The superior court did not err.

B. The "Right-of-Way" Instructions

i. Abuse of Discretion

¶14 Teran next argues the superior court erred by denying his request to instruct the jury under A.R.S. §§ 28-792 and -793, which are traffic code statutes describing the respective duties and rights of pedestrians and drivers when pedestrians cross roadways within crosswalks or at unmarked locations.

¶15 For drivers, Arizona's "right-of-way" law says,

[I]f traffic control signals are not in place or are not in operation, the driver of a vehicle shall yield the right-of-way, slowing down or stopping if need be in order to yield, to a pedestrian crossing the roadway within a crosswalk when the pedestrian is on the half of the roadway on which the vehicle is traveling or when the pedestrian is approaching so closely from the opposite half of the roadway as to be in danger. A pedestrian shall not suddenly leave any curb or other place of safety and walk or run into the path of a vehicle that is so close that it is impossible for the driver to yield.

A.R.S. § 28-792.A. For pedestrians, Arizona law says, "A pedestrian crossing a roadway at any point other than within a marked crosswalk or within an unmarked crosswalk at an intersection shall yield the right-of-way to all vehicles on the roadway." A.R.S. § 28-793.A.

¶16 "A party is entitled to an instruction on any theory reasonably supported by the evidence[, but the superior] court generally is not required to give a proposed instruction when its substance is adequately covered by other instructions." Rodriguez , 192 Ariz. at 61, ¶16, 961 P.2d at 1009 (internal citations omitted). The critical inquiry is whether the given instructions, considered as a whole, "adequately set forth the law applicable to the case." Id.

¶17 Here, the superior court instructed the jury as to the definition of a crosswalk. Though the instructions the superior court gave allowed the jury to decide whether the collision area was a crosswalk, they left the jury to speculate—without guidance in the instructions—about what a reasonable driver would do depending on whether the pedestrian was or was not in a crosswalk. No other instructions adequately covered the respective duties of drivers when pedestrians are within or outside crosswalks.

¶18 To be sure, a victim's fault is not generally at issue in criminal prosecutions. But cf. A.R.S. § 13-404 (the self-defense justification requires the jury to consider whether the victim used or attempted to use "unlawful physical force"). Nevertheless, our Supreme Court has assigned error when the superior court refused an instruction on a victim's undisputed duty to yield. State v. Shumway , 137 Ariz. 585, 588–89, 672 P.2d 929, 932-33 (1983) (error to refuse instruction on victim's duty to yield, because evidence supported the theory that defendant had the right of way in an intersection collision). Though juries generally do not determine a victim's culpability, they "may still consider the decedent's conduct when determining whether a defendant's act was criminally negligent," reckless, or reasonable. See id. at 588, 672 P.2d at 932. Here, what Teran could reasonably expect from pedestrians was prescribed by statute but withheld from the jury.

¶19 The right-of-way instructions, therefore, went directly to Teran's mental state and whether the jury could convict Teran of second-degree murder or the lesser-included charges of manslaughter and negligent homicide. See A.R.S. §§ 13-1104.A.3 (person commits second-degree murder by "recklessly engag[ing] in conduct...