State v. Buzan ( 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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
ANDREW BUZAN, Appellant.
No. 1 CA-CR 21-0174
FILED 3-1-2022
Appeal from the Superior Court in Yavapai County
No. P1300CR201901388
The Honorable Krista M. Carman, Judge
AFFIRMED
COUNSEL
Kenneth Countryman Attorney at Law, Tempe
By Kenneth Countryman
Counsel for Appellant
Arizona Attorney General’s Office, Tucson
By Tanja K. Kelly
Counsel for Appellee
STATE v. BUZAN
Decision of the Court
MEMORANDUM DECISION
Vice Chief Judge David B. Gass delivered the decision of the court, in which
Presiding Judge Paul J. McMurdie and Judge Angela K. Paton joined.
G A S S, Vice Chief Judge:
¶1 Andrew Buzan appeals his conviction for resisting arrest. He
argues sufficient evidence does not support his conviction, and the superior
court erred by not responding “no” to a juror’s question about the jury
instructions. We affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 A laundromat employee called the police to report a
suspicious van parked outside the laundromat. She sought a police escort
to her car next to the van. Officer S. and a back-up officer responded to the
call and arrived to investigate the suspicious van. Officer S. aimed his
flashlight inside the van and found Buzan, the registered vehicle owner,
lying naked inside. Officer S. was wearing his police uniform. The uniform
had multiple patches marked with “‘police’ in visible lettering.”
¶3 Officer S. told Buzan to put on clothes and exit the van. Buzan
put on clothes. He initially refused to exit the van, saying he was concerned
for his safety, but then complied by exiting the van. Almost immediately,
Buzan got back inside and “jumped into the driver’s seat.”
¶4 At that point, Officer S. told Buzan to come with him. Buzan
asked if he was under arrest. Officer S. told Buzan he was not under arrest
but also said he was not free to leave. Officer S. then again told Buzan to
leave the van. Buzan disregarded the instruction and began digging
through the center console. After telling Buzan to get out of the van several
more times with no response, Officer S. decided “verbal commands were
no longer effective” and pulled Buzan out using Buzan’s left arm.
¶5 Officer S. then attempted to arrest Buzan. Officer S. and the
employee testified Buzan physically resisted Officer S. at that point.
Because the interaction occurred between the van and the employee’s car,
video footage of the event does not clearly show the physical interaction
between Officer S. and Buzan until they step onto the sidewalk in front of
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STATE v. BUZAN
Decision of the Court
the store. At that point, Officer S. wrapped his arms around Buzan, picked
him up, and slammed him to the ground.
¶6 After Officer S. took Buzan to the ground, the back-up officer
assisted Officer S. in the arrest. Officer S. and the back-up officer testified
Buzan flailed and kicked his legs while they pinned him to the ground. The
officers also testified Buzan attempted to grab Officer S.’s face. Officer S.
responded by hitting Buzan in the face with an elbow strike. Shortly after,
the officers handcuffed Buzan and took him to the hospital for medical
treatment.
¶7 The State charged Buzan with resisting arrest, aggravated
assault, and criminal damage. The State also charged Buzan with criminal
trespass and forgery but dismissed those counts before the trial. During
deliberations, a juror asked if resisting arrest means “failing to comply with
police orders?” Buzan’s counsel urged the superior court to say “no[,]” and
the State argued the jury instructions were sufficient. The judge referred the
jury back to the instructions and to apply the “ordinary meaning of words
and phrases.” The jury found Buzan guilty of resisting arrest and acquitted
Buzan of aggravated assault. The superior court acquitted Buzan of the
criminal damage charge.
¶8 Buzan moved for acquittal under Rule 20(b) of the Arizona
Rules of Criminal Procedure, arguing insufficient evidence supported his
conviction for resisting arrest. Buzan also claimed it was improper for the
superior court to refer the jury back to the jury instructions and not respond
“no” to the juror’s question concerning the meaning of resisting arrest. The
superior court denied Buzan’s motion and later sentenced him for resisting
arrest. Buzan 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. Sufficiency of the Evidence
¶9 This court reviews de novo a superior court’s decision on a
motion for judgment of acquittal. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011)
(citing State v. Bible, 175 Ariz. 549, 595 (1993)). When considering a Rule 20
motion, this court reviews “‘the evidence in the light most favorable to the
state, and all reasonable inferences are to be resolved against the defendant’
to decide if a person could reasonably conclude the defendant is guilty
beyond a reasonable doubt.” State v. Fischer, 242 Ariz. 44, 49, ¶ 17 (2017)
(quoting State v. Clifton, 134 Ariz. 345, 348 (App. 1982)).
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¶10 A “[j]udgment of acquittal is appropriate when there is no
substantial evidence.” State v. Hughes, 189 Ariz. 62, 73 (1997). Substantial
evidence exists when it provides proof “reasonable persons could accept as
adequate . . . to support a conclusion of [a] defendant’s guilt beyond a
reasonable doubt.” State v. Bearup, 221 Ariz. 163, 167, ¶ 16 (2009) (citation
omitted). “If reasonable minds could differ as to whether the properly
admitted evidence, and the inferences therefrom, prove all elements of the
offense, a motion for acquittal should not be granted.” Bible, 175 Ariz. at 595
(citing Ariz. R. Crim. P. 20(a)).
¶11 A defendant resists an arrest by: (1) intentionally preventing
or attempting to prevent; (2) a person reasonably known to the defendant
to be a peace officer acting under color of such authority; (3) from effecting
an arrest; (4) by using or threatening to use physical force against the peace
officer or another. State v. Barker, 227 Ariz. 89, 90, ¶ 6 (App. 2011) (citing
A.R.S. § 13-2508.A.1).
¶12 Here, substantial evidence supported Buzan’s conviction.
First, upon making initial contact with Buzan, Officer S. identified himself
as an officer and wore a uniform marked with “’police’ in visible lettering.”
Second, Officer S. informed Buzan he was not free to leave when Buzan
asked if he was under arrest. See Barker, 227 Ariz. at 90, ¶ 7 (“[a]n arrest
occurs when a person’s freedom of movement is curtailed”) (citation and
internal quotation marks omitted). Third, Officer S. testified Buzan resisted
after he pulled Buzan from the van for not complying with orders to exit
and for rifling through the van’s center console. Fourth, at least two
witnesses testified Buzan physically fought back, including taking “a
couple swings” and “wrestling” while Officer S. was arresting Buzan
outside of the video camera’s view. See State v. Sorkhabi, 202 Ariz. 450, 451–
52, ¶¶ 2–3 (App. 2002) (defendant threatened use of force to resist an arrest
when he physically “struggled” with an officer while the officer was
arresting him). Both officers also testified Buzan continued to physically
resist the arrest after Officer S. took him to the ground. See id.¶13 We recognize Officer S. gave a somewhat inconsistent
response when Buzan asked if he was under arrest. Officer S. answered no,
but also said Buzan was not free to leave. Buzan, however, has provided no
authority to establish this inconsistency affects the analysis. Indeed, it does
not. Whether or not an arrest has occurred depends on the objective
evidence, not Buzan’s subjective understanding. See State v. Winegar, 147
Ariz. 440, 448 (1985). Despite Officer S.’s somewhat inconsistent response,
the jury could conclude Buzan was under arrest once Officer S. restricted
Buzan’s freedom of movement. See Barker, 227 Ariz. at 90, ¶ 7. Moreover,
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STATE v. BUZAN
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after Officer S.’s inconsistent answer, Buzan ignored Officer S.’s multiple
commands and physically resisted being removed from the van. Buzan
then threatened and struggled with Officer S.
¶14 Accordingly, substantial evidence supports Buzan’s
conviction.
II. Response to Juror Question
¶15 Buzan argues the superior court abused its discretion by
referring the jury back to its instructions and refusing to answer “no” when
a juror asked if resisting arrest means “failing to comply with police
orders.” We disagree because the superior court adequately instructed the
jury on resisting arrest.
¶16 This court reviews a superior court’s response to a juror’s
question for an abuse of discretion but reviews de novo whether jury
instructions adequately reflect the law. State v. Ramirez, 178 Ariz. 116, 126
(1994) (response to juror’s question); State v. Zaragoza, 221 Ariz. 49, 53, ¶ 15
(2009) (adequacy of jury instructions). When the jury asks the superior court
“about a matter on which it has received adequate instruction,” the superior
court does not abuse its discretion by “referr[ing] the jury back to the
written instructions.” Ramirez, 178 Ariz. at 126 (citation omitted). And the
superior court does not abuse its discretion by refusing to answer a jury’s
question about the instructions unless they are either inadequate or
erroneous. Id. (citing Bollenbach v. United States, 326 U.S. 607, 613 (1946);
United States v. Nunez, 889 F.2d 1564, 1569 (6th Cir. 1989)). Jury instructions
are adequate when they are “substantially free from error.” Zaragoza, 221
Ariz. at 53, ¶ 15 (citation omitted).
¶17 Buzan does not dispute the adequacy of the jury instructions
on resisting arrest. Buzan, nevertheless, contends the juror who asked the
question “clear[ly] . . . confused the crime of Resisting Arrest with the crime
of Failure to Comply with a Police Officer.” But the superior court never
instructed the jury on “the crime of Failure to Comply with a Police
Officer.” And the instructions, when interpreted under their plain and
ordinary meaning, required something more than merely disobeying police
orders, including “either the use or threat to use physical force or any other
substantial risk of physical injury to either the peace officer or another.”
¶18 Consistent with precedent, this court recently upheld
virtually identical jury instructions. See State v. Luviano, ___ Ariz. ___, ___,
¶ 5, 499 P.3d 350, 354 (App. 2021); see also State v. Cagle, 228 Ariz. 374, 376,
377–78, ¶¶ 6, 11, 13 (App. 2011). Further, the resisting-arrest jury
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instructions are almost identical to the statutory definition of resisting
arrest. Here, the written instructions required proof of the following: (1) “[a]
peace officer, acting under official authority, sought to arrest either the
defendant or some other person”; (2) “[t]he 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”; (3) “[t]he
defendant intentionally prevented, or attempted to prevent, the peace
officer from making the arrest”; and (4) “[t]he 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.” Section 13-2508.A.1–2 provides:
A person commits resisting arrest by intentionally preventing
or attempting to prevent a person reasonably known to 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 or
another. 2. Using any other means creating a substantial risk
of causing physical injury to the peace officer or another.
¶19 Accordingly, the superior court did not err by referring the
jury back to the jury instructions and refusing to answer “no” to the juror’s
question.
CONCLUSION
¶20 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: AA
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