State of Arizona v. Nicolas Luviano

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,
v.
N ICOLAS LUVIANO,
Appellant.
No. CR-21-0329-PR
Filed June 6, 2023
Appeal from the Superior Court in Pima County
The Honorable Kimberly A. Harris Ortiz, Judge
No. CR20181014-001
AFFIRMED
Opinion of the Court of Appeals, Division Two
252 Ariz. 162 (App. 2021)
VACATED IN PART
COUNSEL:
Kristin K. Mayes, Arizona Attorney General, Joshua Bendor, Solicitor
General, Mariette S. Ambri (argued), Assistant Attorney General, Criminal
Appeals Section, Tucson, Attorneys for State of Arizona
Megan Page, Pima County Public Defender, David J. Euchner (argued),
Deputy Public Defender, Tucson, Attorneys for Nicolas Luviano
STATE V. NICOLAS LUVIANO
Opinion of the Court
JUSTICE BEENE authored the Opinion of the Court, in which CHIEF
JUSTICE BRUTINEL, VICE CHIEF JUSTICE TIMMER and JUSTICES
BOLICK, LOPEZ, KING, and PELANDER (RETIRED) joined. ∗
JUSTICE BEENE, Opinion of the Court:
¶1 Nicolas Luviano was convicted of felony resisting arrest and
other offenses. Luviano argues that because the resisting arrest statute
describes multiple crimes, the jury was improperly instructed that the
offense constituted a single crime, depriving him of his right to a
unanimous verdict. See Ariz. Const. art. 2, § 23 (guaranteeing a criminal
defendant the right to a unanimous jury verdict). For the following reasons,
we hold that felony resisting arrest is a single unified offense.
BACKGROUND
¶2 In February 2018, Arizona state troopers were conducting a
stolen vehicle investigation. After observing Luviano load items into a
stolen car, officers approached and attempted to apprehend him. Luviano
ran when confronted, and a foot pursuit ensued. As he tried to climb over
a fence, an officer grabbed him. Luviano then struggled with several
officers while they tried to handcuff him. He was eventually subdued and
arrested.
¶3 Luviano was charged with felony resisting arrest under
A.R.S. § 13-2508(A)(2), along with other offenses. At the close of the
evidence, the trial judge instructed the jury, in relevant part, that the final
element of resisting arrest is that “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
∗
Justice William G. Montgomery is recused from this matter. Pursuant to
article 6, section 3 of the Arizona Constitution, Justice John Pelander (Ret.)
of the Arizona Supreme Court was designated to sit in this matter.
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Opinion of the Court
another.” The jury found Luviano guilty on all counts and the trial court
sentenced him to a lengthy prison term.
¶4 On appeal, Luviano challenged the trial court’s instruction
regarding the elements of resisting arrest, arguing that § 13-2508’s
subsections enumerate separate offenses: (A)(1) requiring the use of
physical force, and (A)(2) requiring the use of means other than physical
force “creating a substantial risk of causing physical injury.” He contended
that the court’s jury instruction improperly conflated these two subsections.
¶5 In rejecting Luviano’s argument, the court of appeals
concluded:
The language of § 13-2508(A)(1) and (A)(2) plainly and
unambiguously identifies felony resisting arrest as a unitary
offense, setting out the means by which the offense may be
committed. Subsection (A)(1) identifies “[u]sing or
threatening to use physical force against the peace officer or
another” as one means of committing the offense, and
subsection (A)(2) proscribes “[u]sing any other means” that
create “a substantial risk of causing physical injury to the
peace officer or another.”
State v. Luviano, 252 Ariz. 162, 167 ¶ 12 (App. 2021) (alterations in original).
The court added that even if the statutory language was not plain and
unambiguous, applying the four-part analysis set forth in State v. West, 238
Ariz. 482, 489–90 ¶ 20 (App. 2015), to determine whether a statute created
one or more offenses would similarly result in finding that felony resisting
arrest is a unitary offense. Luviano, 252 Ariz. at 167 ¶¶ 12–13.
¶6 We granted review to determine the applicable analysis in
deciding whether a statute describes a single unified offense or separate
offenses, a recurring issue of statewide importance. We have jurisdiction
pursuant to article 6, section 5(3) of the Arizona Constitution.
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STATE V. NICOLAS LUVIANO
Opinion of the Court
DISCUSSION
¶7 This case presents an issue of statutory interpretation, which
we review de novo. Am. C.L. Union of Ariz. v. Ariz. Dep’t of Child Safety, 251
Ariz. 458, 461 ¶ 11 (2021). We also review de novo whether jury
instructions properly state the law. State v. Orendain, 188 Ariz. 54, 56 (1997).
Because Luviano failed to object to the instruction at trial, we will affirm
absent a showing of fundamental, prejudicial error. See State v. Johnson, 247
Ariz. 166, 185 ¶ 41 (2019).
I.
¶8 The parties disagree on whether § 13-2508(A)(1) and (A)(2)
identify a single unified offense or separate offenses. Section 13-2508(A)–
(B) states:
A. 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.
3. Engaging in passive resistance.
B. Resisting arrest pursuant to subsection A, paragraph 1
or 2 of this section is a class 6 felony. Resisting arrest
pursuant to subsection A, paragraph 3 of this section is a
class 1 misdemeanor.
The State argues that § 13-2508(A)(1) and (A)(2) provide alternative means
of committing the same offense. 1 However, Luviano asserts that
1
Section 13-2508(A)(3) is not at issue in this case. References to § 13-2508
refer only to subsections (A)(1) and (A)(2).
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STATE V. NICOLAS LUVIANO
Opinion of the Court
subsections (A)(1) and (A)(2) describe separate crimes. Therefore, he
contends that the trial court’s instruction combining the two subsections
into one crime violated his right to a unanimous verdict and constituted
fundamental, prejudicial error. See Ariz. Const. art. 2, § 23.
A.
¶9 In Arizona, criminal statutes can contain multiple
descriptions of proscribed conduct. See State v. Paredes-Solano, 223 Ariz. 284,
288 ¶ 9 (App. 2009). There are two classes of criminal statutes relevant to
the unanimous jury analysis. See id. The first class contains what are known
as “alternative means” statutes that describe a single unified offense. An
alternative means statute “defines a specific crime and provides ways in
which the crime may be committed.” Id. (quoting State v. Dixon, 127 Ariz.
554, 561 (App. 1980)). The second class contains statutes that “set forth
several distinctive acts and make the commission of each a separate crime.”
Id. This other class of criminal statutes lists “elements in the alternative”
and, therefore, statutes in this class define multiple crimes. Mathis v. United
States, 579 U.S. 500, 505 (2016).
¶10 To determine whether § 13-2508 provides for a single unified
offense or separate offenses, we look to its language. “Our task in statutory
construction is to effectuate the text if it is clear and unambiguous.” BSI
Holdings, LLC v. Ariz. Dep’t of Transp., 244 Ariz. 17, 19 ¶ 9 (2018). In
interpreting a statutory provision, we give words “their ordinary meaning
unless it appears from the context or otherwise that a different meaning is
intended.” Ariz. ex. rel. Brnovich v. Maricopa Cnty. Cmty. Coll. Dist. Bd., 243
Ariz. 539, 541 ¶ 7 (2018) (quoting State v. Miller, 100 Ariz. 288, 296 (1966)).
Accordingly, we “interpret statutory language in view of the entire text”
and consider the context. Nicaise v. Sundaram, 245 Ariz. 566, 568 ¶ 11 (2019).
“Ambiguity arises when the language is reasonably susceptible to differing
interpretations.” Romero-Millan v. Barr, 253 Ariz. 24, 27 ¶ 13 (2022). When
a statute is ambiguous, “we consult ‘secondary interpretation methods,
such as the statute’s subject matter, historical background, effect and
consequences, and spirit and purpose.’” Redgrave v. Ducey, 251 Ariz. 451,
457 ¶ 22 (2021) (quoting Rosas v. Ariz. Dep’t of Econ. Sec., 249 Ariz. 26, 28 ¶ 13
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STATE V. NICOLAS LUVIANO
Opinion of the Court
(2020)). We must determine whether § 13-2508 lists multiple elements or
instead enumerates different factual means of committing a single offense.
¶11 We conclude that § 13-2508 is ambiguous because it may be
reasonably read as setting forth either a single unified offense or distinct
crimes. We agree with the court of appeals that § 13-2508 may be
reasonably read as providing for:
a unitary offense, setting out the means by which the
offense may be committed. Subsection (A)(1) identifies
“[u]sing or threatening to use physical force against the
peace officer or another” as one means of committing the
offense, and subsection (A)(2) proscribes “[u]sing any
other means” that create “a substantial risk of causing
physical injury to the peace officer or another.”
Luviano, 252 Ariz. at 167 ¶ 12 (alterations in original). Conversely, § 13-2508
may also be reasonably read as a statute that defines separate offenses.
Subsection (A)(1) proscribes the use of physical force against an officer
when effecting an arrest, while subsection (A)(2) prohibits use of “any other
means” that creates a substantial risk of causing physical injury to an officer
while making an arrest. § 13-2508(A)(1)–(2). The “other means” required
under subsection (A)(2) could rationally be interpreted as describing
different acts than the ones set forth in subsection (A)(1). This distinction
may be reasonably read to make each subsection a separate offense.
B.
¶12 Because the language of § 13-2508 is reasonably susceptible to
two differing interpretations and is therefore ambiguous, we must turn to
secondary methods of statutory construction to ascertain its meaning.
Employing those methods, we conclude that § 13-2508 sets forth a single
unified offense.
¶13 The statute’s context, structure, and subject matter support
this conclusion. See Advanced Prop. Tax Liens, Inc. v. Sherman, 227 Ariz. 528,
531 ¶ 14 (App. 2011) (considering “the language and sentence structure” in
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STATE V. NICOLAS LUVIANO
Opinion of the Court
interpreting a statute to “harmonize” its provisions). Notably, the context
and structure of the statute connect both subsections in the same sentence,
thus suggesting different means by which one might commit the offense of
felony resisting arrest. Subsection (A)(1) criminalizes “[u]sing or
threatening to use physical force against the peace officer or another,” while
subsection (A)(2) likewise proscribes “[u]sing any other means creating a
substantial risk of causing physical injury to the peace officer or another.”
(Emphasis added.) The use of the phrase “any other means” joins the
subsections and indicates an intent to provide alternative descriptions for
the same material facts. Cf. State v. Freeney, 223 Ariz. 110, 113 ¶ 16 (2009)
(“When the elements of one offense materially differ from those of
another—even if the two are defined in subsections of the same statute—
they are distinct and separate crimes.”); State v. Woody, 108 Ariz. 284, 287
(1972) (“An offense which requires different evidence or elements than the
principal charge is a separate offense . . . .”).
¶14 Section 13-2508’s subject matter also supports our conclusion
that subsections (A)(1) and (A)(2) are alternative means of committing one
offense. The distinction between statutes that define single unified offenses
and those that define multiple offenses “often relies on the harm resulting
from the crime.” State v. O’Laughlin, 239 Ariz. 398, 401 ¶ 7 (App. 2016).
Here, both subsections share the same subject matter, in that they both
provide alternate means to address the same primary harm, namely,
interfering with a peace officer’s authority to place an individual under
arrest. Like other statutes that have been interpreted to create only one
crime, both subsections also require proof of a particular harm: the
defendant used physical force or any other means that created a substantial
risk of physical injury to a peace officer attempting to effectuate an arrest.
See Paredes-Solano, 223 Ariz. at 289–90 ¶ 14 (noting that Arizona’s first
degree murder, kidnapping, and theft statutes each “describe a single
offense despite providing . . . different ways to commit the offense” and
“each of these statutes focuses on a single harm to the victim”). Because the
primary harm in resisting arrest is singular, the statutory alternatives in
subsections (A)(1) and (A)(2) are alternative ways of committing a unified
offense.
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STATE V. NICOLAS LUVIANO
Opinion of the Court
¶15 Finally, the act of resisting arrest generally constitutes a single
event and thereby represents a single offense. This conclusion is consistent
with our decision in State v. Jurden, 239 Ariz. 526 (2016), where we
determined that “regardless of the number of officers involved, § 13-2508
only permits one conviction when a defendant resists an arrest in the course
of a single, continuous event.” Id. at 527–28 ¶ 1. Resisting arrest is
considered a single event for double jeopardy purposes. Id. at 532 ¶ 26. It
would be incongruous to interpret subsections (A)(1) and (A)(2) as separate
crimes when determining whether the unanimous jury provision was
violated.
II.
¶16 When conducting this analysis, however, we must also
construe § 13-2508 against the backdrop of the Sixth Amendment. See
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal
Texts 247–51 (2012) (explaining that the constitutional-doubt canon rests
“upon a judicial policy of not interpreting ambiguous statutes to flirt with
constitutionality, thereby minimizing judicial conflicts with the
legislature”); see also State v. Green, 248 Ariz. 133, 135 ¶ 8 (2020) (noting that
the plain text of a statute controls unless a constitutional violation results).
In Apprendi v. New Jersey, 530 U.S. 466 (2000), the United States Supreme
Court held that, under the Sixth Amendment, “any fact that increases the
penalty for a crime beyond the prescribed statutory maximum must be
submitted to a jury, and proved beyond a reasonable doubt.” Id. at 490.
Later, the Supreme Court held that a prior state law conviction for an
alternate means crime does not qualify as a generic form of a predicate
violent felony offense for federal sentencing enhancement purposes if an
element of the prior state crime is broader than an element of the generic
offense. Mathis, 579 U.S. at 503. The Supreme Court further emphasized
that “[i]f statutory alternatives carry different punishments, then under
Apprendi they must be elements,” not alternative means of committing a
single offense. Id. at 518 (citing Apprendi, 530 U.S. at 490).
¶17 An important distinction exists between the Sixth
Amendment analysis in Mathis and our Fifth Amendment analysis in State
v. Carter, 249 Ariz. 312 (2020). In Carter, we considered whether the
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STATE V. NICOLAS LUVIANO
Opinion of the Court
defendant’s “convictions and subsequent sentences constitute[d] multiple
punishments for the same offense” in violation of the Fifth Amendment’s
Double Jeopardy Clause. Id. at 314 ¶ 1. We concluded that “[t]o determine
whether two distinct offenses charged under different statutes constitute
the same offense, we apply Blockburger’s same-elements test, i.e. ‘whether
each provision requires proof of a fact which the other does not.’” Id. at 315
¶ 9 (quoting Blockburger v. United States, 284 U.S. 299, 304 (1932)). In
rejecting the state’s assertion that “an offense with a greater penalty cannot
be a lesser-included offense of one with a lesser penalty,” we reasoned that
“it is the elements, not the penalty, that matter.” Id. at 319–20 ¶¶ 25–26.
This statement in Carter only relates to analyses of statutes under
Blockburger’s same-elements test, not under the test from Apprendi the
Supreme Court applied in Mathis.
¶18 Here, resisting arrest under either subsection (A)(1) or (A)(2)
is a class six felony and provides for the same punishment. See § 13-2508(B).
Accordingly, § 13-2508’s similar statutory punishments indicate alternate
ways of committing a single crime. See Mathis, 579 U.S. at 518 (reasoning
that if a statute provides illustrative examples that could constitute a crime
then those illustrative examples are means of commission). Therefore, our
interpretation of § 13-2508 comports with the Sixth Amendment.
III.
¶19 Although the court of appeals decided that “[t]he language of
§ 13-2508(A)(1) and (A)(2) plainly and unambiguously identifies felony
resisting arrest as a unitary offense,” it went on to analyze whether the
statute provides a single unitary offense or separate crimes under the four-
part test initially set forth in Dixon, 127 Ariz. at 561. Luviano, 252 Ariz. at 167
¶¶ 12–13. 2 In analyzing whether a statute provides an alternative means
2 The court of appeals cited West, 238 Ariz. at 489–90 ¶ 20, when discussing
this test. While West is a more recent court of appeals case, the test first
originated in Dixon, 127 Ariz. at 561. The Dixon court, without much
analysis, adopted this test from Washington. See id. (citing State v. Arndt,
553 P.2d 1328 (Wash. 1976)).
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Opinion of the Court
for committing the same offense, the Dixon court held that consideration
should be given to: (1) “[t]he title of the act,” (2) “[w]hether there is a readily
perceivable connection between the various acts set forth,” (3) “[w]hether
the acts are consistent with and not repugnant to each other,” and (4)
“[w]hether the acts may inhere in the same transaction.” 127 Ariz. at 561.
¶20 Luviano correctly notes that this Court has not adopted the
Dixon factors in determining whether a statute reflects a unitary offense or
separate crimes, and we decline to do so here. The factors outlined in Dixon
fail to provide meaningful assistance in determining the question presented
here, because application of the factors nearly always results in finding that
the questioned statute prescribes a single unified offense. See State v.
Manzanedo, 210 Ariz. 292, 294 ¶¶ 7–9 (App. 2005) (applying Dixon in finding
A.R.S. § 13-1207, which criminalizes a prisoner’s assault with intent to incite
to riot, is a single unified offense); State v. Brown, 217 Ariz. 617, 620–21 ¶ 10
(App. 2008) (applying Dixon in finding A.R.S. § 13-3408(A)(7), which
prohibits transporting narcotic drugs for sale, is a single unified offense);
West, 238 Ariz. at 490 ¶¶ 20–21 (applying Dixon in finding A.R.S. § 13-
3623(A), proscribing child abuse, is a single unified offense). More
importantly, employing Dixon’s analysis would be inconsistent with our
duty to apply the principles of statutory interpretation, see Part I, in order
to ascertain a statute’s meaning. Accordingly, we disapprove of Dixon to
the extent it is inconsistent with our analysis here.
IV.
¶21 Because we find that § 13-2508(A)(1) and (A)(2) set forth a
single unified offense, the jury instruction regarding this crime did not
constitute error, much less fundamental error. 3 While we conclude that
3 Luviano argued for the first time in his supplemental brief that this Court
should recognize and apply the merger doctrine in this case. See State v.
Essman, 98 Ariz. 228, 235 (1965) (explaining the merger doctrine), invalidated
by State v. Moore, 222 Ariz. 1, 13–14 ¶¶ 57–63 (2009). Because this argument
was not raised in the trial court or the court of appeals, it is waived, and we
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Opinion of the Court
Luviano’s resisting arrest conviction was legally sufficient, the best practice
moving forward when charging a single unified offense would be to specify
the alternate ways the crime may be committed in the charging document.
See State v. Moore, 222 Ariz. 1, 12 ¶ 51 (2009) (stating that due process
requires that a defendant be given “notice of the specific charge” (quoting
Cole v. Arkansas, 333 U.S. 196, 201 (1948))); Pool v. Superior Court, 139 Ariz.
98, 101 n.4 (1984) (emphasizing that “the indictment gave clear notice to the
defendant that the crime alleged was a violation of either or both”
subsections of a statute (emphasis added)). In addition, to safeguard this
constitutional right, the trial court should include an interrogatory with the
verdict forms where the jury could specify which offense was committed if
the court is uncertain as to whether a statute provides alternative means of
committing the same offense or is a multiple offense statute. 4
CONCLUSION
¶22 Because felony resisting arrest is a single unified offense,
Luviano’s constitutional right to a unanimous jury was not violated, and
the trial court did not err in giving the resisting arrest instruction. For the
foregoing reasons, we vacate paragraphs 5–16 of the court of appeals’
opinion and affirm Luviano’s conviction and sentence for resisting arrest.
decline to address it. See Est. of DeSela v. Prescott Unified Sch. Dist. No. 1, 226
Ariz. 387, 389 ¶ 8 (2011).
4 A defendant’s right to notice of the specific charge or to be informed does
not mandate either of these best practices, nor do these best practices confer
additional rights. See U.S. Const. amend. VI (“In all criminal prosecutions,
the accused shall enjoy the right to . . . be informed of the nature and cause
of the accusation.”); Ariz. Const. art. 2, § 24 (“In criminal prosecutions, the
accused shall have the right . . . to demand the nature and cause of the
accusation against him, [and] to have a copy thereof . . . .”). These
constitutional provisions provide only the floor, not the ceiling, of best
practices when drafting charging documents.
11