State v. Leibly ( 2014 )


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  •                           NOTICE: NOT FOR PUBLICATION.
    UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
    LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
    IN THE
    ARIZONA COURT OF APPEALS
    DIVISION ONE
    STATE OF ARIZONA, Appellee,
    v.
    RICKY LLOYD LEIBLY, Appellant.
    No. 1 CA-CR 14-0170
    FILED 12-16-2014
    Appeal from the Superior Court in Yuma County
    No. S1400CR201300679
    The Honorable Stephen J. Rouff, Judge Pro Tem
    AFFIRMED
    COUNSEL
    Arizona Attorney General’s Office, Phoenix
    By Joseph T. Maziarz
    Counsel for Appellee
    Terry Capozzi, Esq., Yuma
    By Terry Capozzi
    Counsel for Appellant
    STATE v. LEIBLY
    Decision of the Court
    MEMORANDUM DECISION
    Presiding Judge Patricia K. Norris delivered the decision of the Court, in
    which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined.
    N O R R I S, Judge:
    ¶1             This appeal arises out of Ricky Lloyd Leibly’s convictions and
    sentences for aggravated assault, a Class 3 felony, possession of marijuana
    for sale, a Class 4 felony, and possession of drug paraphernalia, a Class 6
    felony. On appeal, Leibly challenges only his conviction for aggravated
    assault, arguing the superior court committed fundamental error when it
    did not instruct the jury on self-defense and defense of premises.1 In
    response, the State argues, first, Leibly “affirmatively state[d] that he was
    not requesting a justification instruction,” and thus invited any alleged
    error and therefore waived this argument on appeal; and second, even if
    Leibly did not invite the alleged error, he is unable to show fundamental
    error and resulting prejudice. We agree with the State’s first argument that
    by affirmatively stating he did not want an instruction on self-defense Leibly
    invited any alleged error as to that instruction and has waived that
    argument on appeal. We also agree with the State’s second argument, and
    although Leibly did not refuse an instruction on defense of premises, he is
    unable to show fundamental error and resulting prejudice. Thus, we affirm
    Leibly’s convictions and sentences.
    I.     Self-Defense Instruction and Invited Error
    ¶2            When a defendant “invites” an error, we do not conduct a
    fundamental error review, and we will not reverse such an error on appeal.
    State v. Logan, 
    200 Ariz. 564
    , 565–66, ¶ 9, 
    30 P.3d 631
    , 632–33 (2001). To
    decide whether a party invited the error, we must determine whether the
    party complaining of the error is also the party who “was the source of” or
    caused the error. 
    Logan, 200 Ariz. at 566
    , ¶ 
    11, 30 P.3d at 633
    ; see also State
    1In  his opening brief Leibly argues the court committed error
    by failing to instruct the jury in “defense of property.” His argument and
    citation, however, refer to Arizona Revised Statutes (“A.R.S.”) section 13-
    407 (2010), which describes the justification defense for use of physical force
    in “defense of premises.”
    2
    STATE v. LEIBLY
    Decision of the Court
    v. Lucero, 
    223 Ariz. 129
    , 138, ¶ 32, 
    220 P.3d 249
    , 258 (App. 2009). If the party
    complaining of the error is the same party that caused the error, then “the
    offending party has no recourse on appeal.” 
    Lucero, 223 Ariz. at 135
    , ¶ 
    17, 220 P.3d at 255
    ; 
    Logan, 200 Ariz. at 565
    –66, ¶ 
    9, 30 P.3d at 632
    –33.
    ¶3            “[T]he crucial fact” in cases involving invited error is “that the
    party took independent affirmative unequivocal action to initiate the error
    and did not merely fail to object to the error or merely acquiesce in it.”
    
    Lucero, 223 Ariz. at 136
    , ¶ 
    21, 220 P.3d at 256
    . In Lucero this court held the
    defendant did not invite the error but merely acquiesced in the error
    proposed by another when he “simply stated that he was not sure of the
    law in the area and the court’s proposal . . . seemed 
    correct.” 223 Ariz. at 138
    , ¶ 
    32, 220 P.3d at 258
    .
    ¶4            Unlike Lucero, however, this is not a case of mere
    acquiescence. Instead, Leibly, through counsel, affirmatively informed the
    court he did not want the self-defense instruction he now argues the court
    should have given. Specifically, in settling the jury instructions, the State
    raised the issue of whether Leibly would be requesting a self-defense
    instruction. In response, defense counsel informed the court it was not his
    “intent” to request such an instruction:
    [Prosecutor]: I asked [defense counsel] briefly.
    I said, you know, from what I heard from the
    defendant in his testimony he was raising some
    self-defense issues there. The State doesn’t
    agree with that at all, as far as the evidence goes.
    I asked [defense counsel] if he’s requesting self-
    defense or defense of property or anything
    along those lines and I don’t know if we need to
    discuss that.
    [Defense counsel]: Judge, it was not my intent to
    ask for the self-defense - -
    THE COURT: I don’t think - -
    [Defense counsel]: - - instruction.
    THE COURT: - - that’s really supported by the
    evidence anyway, such affirmative defenses.
    (Emphasis added.).
    3
    STATE v. LEIBLY
    Decision of the Court
    ¶5            The conversation between the court and counsel regarding
    the self-defense instruction continued with the prosecutor stating, “I don’t
    know how Mr. Leibly personally feels about the record, but I’m not
    requesting the instruction if [defense counsel] isn’t.” To this, defense
    counsel made no response. And, the following morning, after the court and
    counsel discussed the jury instructions further, defense counsel stated, “I
    think that covers everything, Judge.”
    ¶6           On this record Leibly was the source of the error he alleges on
    appeal. Because Leibly invited the alleged error, he is barred from claiming
    the court should have instructed the jury on self-defense.
    II.    Defense of Premises Instruction and Fundamental Error
    ¶7            Because Leibly did not request an instruction on defense of
    premises, we review whether the court should have given such an
    instruction only for fundamental error. See State v. Henderson, 
    210 Ariz. 561
    ,
    567, ¶ 19, 
    115 P.3d 601
    , 607 (2005); see also Ariz. R. Crim. P. 21.3(c) and cmt.
    (failing to object to omission of instruction waives the issue on appeal
    absent fundamental error). Thus, Leibly bears the burden of establishing
    fundamental prejudicial error. See 
    Henderson, 210 Ariz. at 567
    , ¶¶ 
    19–20, 115 P.3d at 607
    .
    ¶8              Although a defendant is entitled to a “justification [defense]
    instruction if it is supported by the slightest evidence,” the superior court,
    “does not err in refusing to give a jury instruction that . . . does not fit the
    facts of the particular case.” State v. Hussain, 
    189 Ariz. 336
    , 337, 
    942 P.2d 1168
    , 1169 (App. 1997) (citation omitted) (internal quotations omitted).
    Under A.R.S. § 13-407, a person may threaten “to use deadly physical force
    . . . against another when and to the extent that a reasonable person would
    believe it immediately necessary to prevent or terminate the commission or
    attempted commission of a criminal trespass by the other person in or upon
    the premises.”
    ¶9             At trial Leibly testified the victim aggressively drove up to his
    property, and he and the victim began yelling at each other. Leibly further
    testified that during the yelling, the victim began to reach around in the cab
    of his truck, so Leibly ran inside his trailer to get his gun. The victim had
    not yet gotten out of his truck or approached Leibly’s gate. Leibly testified
    he grabbed his gun, ran out of his trailer, and then he saw the victim
    standing at his gate, about 15 feet away. He also testified that when the
    victim saw him come out of the trailer, the victim turned around and started
    to run away. According to Leibly he thought that was funny, started
    4
    STATE v. LEIBLY
    Decision of the Court
    laughing, put the gun in his pocket, and walked over to talk to the victim.
    Leibly also denied ever pointing his gun at the victim—testimony contrary
    to the concept of a justification defense that is predicated on a factual
    assertion that “my assault was justified because . . . .” Cf. State v. Ruggiero,
    
    211 Ariz. 262
    , 265, ¶ 11, 
    120 P.3d 690
    , 693 (App. 2005) (defendant who
    disclaims assaultive behavior on his part not entitled to self-defense
    instruction).
    ¶10            Given this evidence, a defense of premises instruction would
    not have “fit” the facts of this case. And, the omission of such an instruction
    did not deprive Leibly of a “right essential to his defense,” 
    Henderson, 210 Ariz. at 567
    , ¶ 
    19, 115 P.3d at 607
    , or impact the foundation of his defense,
    which was that he had not committed an assault. Accordingly, the superior
    court did not commit fundamental error in failing to sua sponte instruct the
    jury on defense of premises.
    ¶11           For the foregoing reasons we affirm Leibly’s convictions and
    sentences.
    :ama
    5
    

Document Info

Docket Number: 1 CA-CR 14-0170

Filed Date: 12/16/2014

Precedential Status: Non-Precedential

Modified Date: 4/18/2021