State v. Jurden

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
SAMKEITA JAHVEH JURDEN, Appellant.
No. 1 CA-CR 14-0002
FILED 6-23-2015
Appeal from the Superior Court in Maricopa County
No. CR2012-150667-001
The Honorable Brian Kaiser, Commissioner
AFFIRMED IN PART, VACATED IN PART
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Adriana M. Zick
Counsel for Appellee
Maricopa County Public Defender’s Office, Phoenix
By Jeffrey L. Force
Counsel for Appellant
STATE v. JURDEN
Opinion of the Court
OPINION
Judge Patricia K. Norris delivered the opinion of the Court, in which
Presiding Judge Margaret H. Downie joined. Judge Randall M. Howe
dissented.
N O R R I S, Judge:
¶1 Samkeita Jahveh Jurden appeals from his convictions and
sentences for two counts of resisting arrest, one count of aggravated assault,
and one count of criminal trespass in the second degree. On appeal, Jurden
argues that the two resisting arrest convictions, one for each officer
involved in the altercation, constituted a single offense under the resisting
arrest statute, Arizona Revised Statutes (“A.R.S.”) section 13-2508(A)(1)
(Supp. 2014),1 and thus his second resisting arrest conviction and sentence
violated the Double Jeopardy Clause. We agree with Jurden. Accordingly,
we vacate his second conviction and sentence for resisting arrest and affirm
his other convictions and sentences.
FACTS AND PROCEDURAL BACKGROUND
¶2 On September 24, 2012, Jurden—shirtless and shoeless—
walked into a department store with an unleashed dog. A store security
guard called police after Jurden refused to leave. Two police officers
arrived and asked Jurden to leave the store, but he refused to do so. The
officers then attempted to arrest Jurden for criminal trespass and a struggle
broke out between Jurden and the officers. Jurden resisted their attempts
to arrest him by biting and kicking one officer, and by flailing and pulling
his arms away from the other officer. After struggling with Jurden for
approximately two minutes, the officers subdued and handcuffed him.
¶3 A grand jury indicted Jurden on two counts of aggravated
assault, two counts of resisting arrest (counts 3 and 4) under A.R.S. § 13-
2508(A)(1)—one count for each officer—and one count of criminal trespass
in the second degree. The jury found Jurden guilty on one count of
aggravated assault, on both counts of resisting arrest, and on the criminal
trespass count. The superior court sentenced Jurden to 10 years for
1Although Jurden’s altercation with police occurred in
September 2012, the Arizona Legislature has not amended A.R.S. § 13-2508
since then. Thus, we cite to the current version of the statute.
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Opinion of the Court
aggravated assault, 3.75 years on each resisting arrest conviction, and 4
months for criminal trespass, with the sentences to run concurrently. In
imposing concurrent sentences, the court explained:
I can’t make a determination or I can’t find,
based on what I saw at trial or what I see in the
video, that the defendant was somehow
targeting or intending to commit the offenses
specifically as to one officer and then another.
Perhaps, if there were some lengthy delay
between one event and another, there might be
a better justification of the idea of consecutive
sentences. But this all starts and ends in just one
big melee, really, and so the idea of consecutive
sentences here doesn’t seem appropriate to me,
under the circumstances.
DISCUSSION
¶4 As explained above, on appeal Jurden argues the two
resisting arrest convictions constituted but one offense and thus his second
resisting arrest conviction and sentence violated the Double Jeopardy
Clause of the United States Constitution. U.S. Const. amend. V. Jurden
raises this argument for the first time on appeal and thus we review only
for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20,
115 P.3d 601, 607 (2005). We note, however, that a sentence in violation of
the Double Jeopardy Clause constitutes fundamental error. State v. McGill,
213 Ariz. 147, 153, ¶ 21, 140 P.3d 930, 936 (2006).
¶5 The Double Jeopardy Clause affords a defendant three basic
protections: first, it bars a second prosecution for the same offense after an
acquittal; second, it bars a second prosecution for the same offense after a
conviction; and third, it bars multiple punishments for the same offense—
which is the issue presented in this appeal. Ohio v. Johnson, 467 U.S. 493,
497-98, 104 S. Ct. 2536, 2540, 81 L. Ed. 2d 425 (1984); see also State v. Eagle,
196 Ariz. 188, 190, ¶ 6, 994 P.2d 395, 397 (2000) (citing Whalen v. United States,
445 U.S. 684, 688, 100 S. Ct. 1432, 1436, 63 L. Ed. 2d 715 (1980)). While the
bar on multiple trials is designed to ensure the government “does not make
repeated attempts to convict an individual, thereby exposing him to
continued embarrassment, anxiety, and expense, while increasing the risk
of an erroneous conviction or an impermissibly enhanced sentence,” the bar
on multiple punishments for the same offense serves a different purpose.
Johnson, 467 U.S. at 498-99, 104 S. Ct at 2540. That prohibition is designed
to “ensure that the sentencing discretion of courts is confined to the limits
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Opinion of the Court
established by the legislature.” Id. at 499, 104 S. Ct. at 2540-41. This is
because “the substantive power to prescribe crimes and determine
punishments is vested with the legislature.” Id.¶6 As an initial matter, we note the parties agree, and the
evidence supports, that the two resisting arrest charges and resulting
convictions arose out of a single, uninterrupted event. Thus, we are not
faced with a situation involving distinct, separate events which could give
rise to multiple counts and convictions for resisting arrest. See, e.g., People
v. Moreno, 108 Cal. Rptr. 338, 340 (Cal. App. Dep’t Super. Ct. 1973)
(defendant resisted arrest at residence then approximately one-half hour
later resisted officer while being brought to booking desk).
¶7 Whether a particular course of conduct involves more than
one offense turns on the legislatively established “allowable unit of
prosecution.” As explained by the United States Supreme Court in Sanabria
v. United States:
It is Congress, and not the prosecution, which
establishes and defines offenses. Few, if any,
limitations are imposed by the Double Jeopardy
Clause on the legislative power to define
offenses. But once Congress has defined a
statutory offense by its prescription of the
“allowable unit of prosecution,” that
prescription determines the scope of protection
afforded by a prior conviction or acquittal.
Whether a particular course of conduct involves
one or more distinct “offenses” under the
statute depends on this congressional choice.
437 U.S. 54, 69-70, 98 S. Ct. 2170, 2181-82, 57 L. Ed. 2d 43 (1978) (citations
omitted); see also State v. Burdick, 211 Ariz. 583, 585, ¶ 5, 125 P.3d 1039, 1041
(App. 2005) (“Whether a defendant can be punished for each victim of the
crime of disorderly conduct is an issue of legislative intent.”); State v.
Powers, 200 Ariz. 123, 126, ¶ 8, 23 P.3d 668, 671 (App. 2001) (“Whether one
or more offenses occurred here requires us to interpret [the statute].”).
¶8 Although Arizona case law has not explicitly defined
“allowable unit of prosecution,” our courts have implicitly recognized that
a “unit of prosecution” defines the scope of the conduct that comprises the
offense. See State v. McPherson, 228 Ariz. 557, 560, ¶ 7, 269 P.3d 1181, 1184
(App. 2012) (separate punishments for different images of child
pornography appropriate “because the legislature intended the unit of
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STATE v. JURDEN
Opinion of the Court
prosecution to be each individual ‘depiction’”); Burdick, 211 Ariz. at 585-86,
¶¶ 5-10, 125 P.3d at 1041-42 (addressing whether “unit of prosecution” for
disorderly conduct is conduct or victims); see also State v. Schoonover, 133
P.3d 48, 80 (Kan. 2006):
If the double jeopardy issue arises because of
convictions on multiple counts for violations of
a single statute, the test is: How has the legislature
defined the scope of conduct which will comprise one
violation of the statute? Under this test, the
statutory definition of the crime determines
what the legislature intended as the allowable
unit of prosecution. There can be only one
conviction for each allowable unit of
prosecution.
(Emphasis added).
¶9 Thus, Jurden’s argument requires us to determine what the
Arizona Legislature has defined as the allowable unit of prosecution under
A.R.S. § 13-2508. Is it—as Jurden contends—the arrest itself, thus giving rise
to only one possible offense of resisting arrest no matter how many peace
officers are involved in the incident, or is it—as the State contends—the
number of peace officers involved in the incident, thus giving rise to the
possibility of multiple offenses and multiple punishments for resisting
arrest? Reviewing the issue de novo, we begin with the text of A.R.S. § 13-
2508. State v. Hansen, 215 Ariz. 287, 289, ¶¶ 6-7, 160 P.3d 166, 168 (2007)
(appellate court reviews issue of statutory construction de novo; “best and
most reliable index of a statute’s meaning is its language”); McGill, 213 Ariz.
at 153, ¶ 21, 140 P.3d at 936 (appellate court reviews de novo whether State
has violated defendant’s right against double jeopardy). Section 13-2508
reads as follows:
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.
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STATE v. JURDEN
Opinion of the Court
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.
C. For the purposes of this section, “passive
resistance” means a nonviolent physical act or
failure to act that is intended to impede, hinder
or delay the effecting of an arrest.
¶10 On its face, A.R.S. § 13-2508(A) can reasonably be read to
define the offense as intentionally preventing or attempting to prevent the
effectuation of an arrest, with paragraphs (1), (2), and (3) delineating the
various ways in which that single offense may be committed. Section 13-
2508, however, can also reasonably be read as adopting a unit of
prosecution that focuses on the peace officer. Indeed, our case law has
recognized that A.R.S. § 13-2508(A)(1) and (2) prohibit certain physical acts
directed toward a peace officer, see State v. Womack, 174 Ariz. 108, 111, 847
P.2d 609, 612 (App. 1992) (“As we read the [resisting arrest] statute, it
prohibits assaultive behavior directed toward an arresting officer”); State v.
Mitchell, 204 Ariz. 216, 219, ¶ 16, 62 P.3d 616, 619 (App. 2003) (“The purpose
of the resisting arrest statute is to protect peace officers and citizens from
substantial risk of physical injury.”), and a violation of A.R.S. § 13-
2508(A)(1) is not a victimless crime. State v. Sorkhabi, 202 Ariz. 450, 453, ¶
11, 46 P.3d 1071, 1074 (App. 2002). Accordingly, under this construction, a
person would be subject to more than one resisting arrest charge if more
than one peace officer was involved in the incident, even if the person’s
conduct occurred during the course of a single, uninterrupted event. See
supra ¶ 6.
¶11 Because the statute’s plain language reveals two reasonably
plausible units of prosecution, it is ambiguous. See State ex rel. Montgomery
v. Harris, 234 Ariz. 343, 345, ¶ 12, 322 P.3d 160, 162 (2014) (statute is
ambiguous when reasonably susceptible to differing interpretations); State
v. Whitman, 234 Ariz. 565, 566, ¶¶ 7-8, 324 P.3d 851, 852 (2014) (ambiguity
exists when statute can be reasonably read in two ways). Accordingly, we
turn to secondary rules of statutory construction to determine legislative
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STATE v. JURDEN
Opinion of the Court
intent. Harris, 234 Ariz. at 345, ¶¶ 12-13, 322 P.3d at 162. Examining the
historical background, statutory context, and other relevant factors, we
conclude the Legislature’s intended unit of prosecution was the arrest itself.
¶12 Before 1977, our resisting arrest statute, as construed by the
Arizona Supreme Court and this court, allowed a person to resist an illegal
arrest. See Dugan v. State, 54 Ariz. 247, 250, 94 P.2d 873, 874 (1939) (“person
illegally arrested may resist the arrest, using such force as may be
reasonably necessary”); State v. DeRoss, 9 Ariz. App. 497, 499, 454 P.2d 167,
169 (1969) (same); State v. Robinson, 6 Ariz. App. 424, 427, 433 P.2d 75, 78
(1967) (resisting arrest statute designed to aid police officers in discharging
their duties; statute presupposes lawful arrest).
¶13 In 1977, the Legislature enacted a new criminal code which
became effective on October 1, 1977. 1977 Ariz. Sess. Laws, ch. 142, § 86 (1st
Reg. Sess.). In revamping the criminal code, the Legislature adopted the
current version of A.R.S. § 13-2508 minus one minor modification in 19802
and the addition of passive resistance in 2012. 2012 Ariz. Sess. Laws, ch.
265, § 1 (2nd Reg. Sess.). In a sharp break with the pre-1977 version of the
statute and its governing precedent, the Legislature specified that a person
would be guilty of resisting arrest even if the arrest was illegal. Thus, under
the new statutory language, a person would be guilty of resisting arrest if
he intentionally prevented 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.” In adopting this wording and breaking with prior
precedent, we believe the Legislature intended to criminalize conduct that
interfered with state authority, that is, conduct that interfered with the
arrest. In so doing, the Legislature embraced the common law’s
understanding of resisting arrest—that the gravamen of the offense is
against state authority. See Purnell v. State, 827 A.2d 68, 80 (Md. 2003)
(common law recognized crime of resisting arrest as “an offense against the
State”), cited with approval in State v. Le Noble, 216 Ariz. 180, 182-83, ¶¶ 11-
12, 164 P.3d 686, 688-89 (App. 2007) (defendant entitled to jury trial for
resisting arrest because it was a crime at common law which entitled
defendant to a jury trial); Rudolph J. Gerber, Criminal Law of Arizona 2508-
2, -3 (2d ed. Supp. 2000) (“The gravamen of the [resisting arrest] statute is
the theory that the court, not the street, is the proper place to test the legality
of arrest.”). Indeed, although the drafters of the 1977 criminal code
abolished all common law crimes, 1977 Ariz. Sess. Laws, ch. 142, § 39 (1st
2The Legislature amended the statute in 1980 by adding the
phrase “or attempting to prevent” to subsection (A). 1980 Ariz. Sess. Laws,
ch. 229, § 27 (2nd Reg. Sess.).
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STATE v. JURDEN
Opinion of the Court
Reg. Sess.), “when an act is declared to be a crime by its common law name,
common law interpretations and cases are persuasive as determining
whether any particular act constitutes the statutory offense.” Engle v. State,
53 Ariz. 458, 465, 90 P.2d 988, 991 (1939).
¶14 Further, when the Legislature enacted the new criminal code
in 1977, it placed the resisting arrest statute in the same chapter with
statutes that dealt with other crimes against state authority, specifically:
escape; promoting prison contraband; failure to appear; resisting an order
directing, regulating, or controlling a motor vehicle; and hindering
prosecution. 1977 Ariz. Sess. Laws, ch. 142, § 86 (1st Reg. Sess.). Thus,
viewed in context with these other statutes, J.D. v. Hegyi, 236 Ariz. 39, 41, ¶
6, 335 P.3d 1118, 1120 (2014) (“Words in statutes . . . cannot be read in
isolation from the context in which they are used.”), and taking into account
that the Legislature designed the statute to remove the illegality of an arrest
as a justification for the resistance, we conclude the Legislature intended to
criminalize a person’s conduct in interfering with, that is, resisting, state
authority. Under this construction, the allowable unit of prosecution
focuses on the arrest, not on the number of peace officers involved in the
resistance.
¶15 This construction of the statute is further supported by the
Legislature’s 2012 amendment to broaden the definition of resisting arrest
to include “passive resistance.” 2012 Ariz. Sess. Laws, ch. 265, § 1 (2nd Reg.
Sess.). The statute defines passive resistance as “a non-violent physical act
or failure to act that is intended to impede, hinder or delay the effecting of
an arrest.” A.R.S. § 13-2508(C). On its face, this language describes a unit
of prosecution grounded in the arrest, not the officer.
¶16 The dissent disagrees with this construction of the statute. It
concludes the “statute’s plain language demonstrates that resistance to
arrest depends on each person resisted—on each victim—not on the event
of the arrest itself.” See infra ¶ 28. First, when, as is the case here, a statute
may reasonably be construed in more than one way, “determining its
meaning is not advanced by assertions that one plausible interpretation
must be right because it reflects the ‘plain meaning.’” Ariz. Citizens Clean
Elections Comm’n v. Brain, 234 Ariz. 322, 329, ¶ 34, 322 P.3d 139, 146 (2014)
(Bales, J., dissenting).
¶17 Second, the dissent asserts this court has “previously
recognized that A.R.S. § 13-2508 is a victim-directed crime.” See infra ¶ 29.
The cases the dissent cites in support of this conclusion did not, however,
address the double jeopardy issue presented here. See State v. Mitchell, 204
Ariz. 216, 62 P.3d 616 (App. 2003) (discussing meaning of “effecting an
8
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Opinion of the Court
arrest”); State v. Sorkhabi, 202 Ariz. 450, 46 P.3d 1071 (App. 2002) (discussing
necessity of physical act being directed towards a police officer and
rejecting argument that resisting arrest is “victimless crime”); State v.
Womack, 174 Ariz. 108, 847 P.2d 609 (App. 1992) (holding avoiding arrest is
not the same as resisting arrest).
¶18 Third, to be sure, as the dissent notes, this court has indeed
recognized that the purpose of the resisting arrest statute is to protect police
officers and others from the “substantial risk of physical injury.” Mitchell,
204 Ariz. at 219, ¶ 16, 62 P.3d at 619. But the Legislature did not design the
statute to simply protect police and others from the risk of physical injury.
Instead, the Legislature designed the statute to criminalize a person’s
conduct that presents a risk of harm in a particular context—when the actor
is interfering with the peace officer’s efforts to exercise state authority. The
opening words of the statute drive this point home: “A person commits
resisting arrest by intentionally preventing or attempting to prevent . . . a
peace officer, acting under color of such peace officer’s official authority,
from effecting an arrest . . . .”
¶19 Fourth, the dissent focuses on the elements of the statute in
concluding it is unambiguous. See infra ¶¶ 26-27. But that is not the
applicable test under the Double Jeopardy Clause when, as here, a person
is convicted of multiple violations of a single statute. In such a case, the
legislature’s description of the scope of the conduct that constitutes the
criminal act controls, not the individual elements that make up the crime.
As the Kansas Supreme Court has explained:
The determination of the appropriate unit of
prosecution is not necessarily dependent upon
whether there is a single physical action or a
single victim. Rather, the key is the nature of
the conduct proscribed. . . . The unit of
prosecution [is] determined by the scope of the
course of conduct defined by the statute rather
than the discrete physical acts making up that
course of conduct or the number of victims
injured by the conduct.
Schoonover, 133 P.3d at 65.
¶20 Finally, construing A.R.S. § 13-2508 to be a victim-directed
crime as the dissent does would allow fortuitous events to control the
number of resisting arrest charges that could be brought by the State when
a person resists arrest in a single, uninterrupted event. Would there be 30
9
STATE v. JURDEN
Opinion of the Court
victims and thus 30 charges for resisting arrest if a person waved a gun in
the direction of the 30 officers who had been called to the scene to arrest
him? Or, would there be 15 victims and thus 15 charges for resisting arrest
if a person was simply lying on the ground, passively resisting, after 15
officers arrived at the scene to make his arrest? Based on the wording and
history of A.R.S. § 13-2508, we do not believe the Legislature intended the
number of peace officers involved in a single act of resistance to control the
number of offenses and punishments for resisting arrest.
¶21 When, as here, there is a single uninterrupted event, the
number of officers involved in the event does not turn a single offense into
multiple offenses under A.R.S. § 13-2508. We agree with Jurden that only
one offense of resisting arrest occurred under the circumstances presented
here, and thus, he was sentenced to multiple punishments in violation of
the Double Jeopardy Clause. See State v. Brown, 217 Ariz. 617, 621, ¶ 13, 177
P.3d 878, 882 (App. 2008) (“[W]hen a defendant is convicted more than once
for the same offense, his double jeopardy rights are violated even when, as
in the current case, he receives concurrent sentences.”). We therefore vacate
his second conviction for resisting arrest (count 4) and the sentence imposed
on that count. See Powers, 200 Ariz. at 127, ¶ 16, 23 P.3d at 672 (vacating
second conviction and sentence for multiplicitous offense); see also State v.
Jones, 185 Ariz. 403, 407-08, 916 P.2d 1119, 1123-24 (App. 1995) (vacating
second kidnapping conviction and sentence arising out of single, definite
act).
CONCLUSION
¶22 For the foregoing reasons, we vacate Jurden’s second
conviction and sentence for resisting arrest. We affirm his other convictions
and sentences, however.
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STATE v. JURDEN
Howe, J., Dissenting
H O W E, Judge, dissenting:
¶23 I respectfully dissent. The majority rules that the right against
double jeopardy prohibits Jurden from being convicted of two counts of
resisting arrest out of a single event, even though Jurden committed
separate criminal acts against each police officer who was struggling to
arrest him. The majority does so by finding that the resisting arrest statute,
A.R.S. § 13–2508, is ambiguous about whether it applies on a per-arrest or
a per-victim basis—whether it is event-directed or victim-directed—and
then uses secondary rules of statutory construction to hold that the
Legislature intended for the statute to apply on a per-arrest basis.
¶24 The problem with the majority’s analysis, however, is that in
finding A.R.S. § 13–2508 ambiguous, it fails to examine the words of the
statute to determine if they are subject to more than one reasonable
interpretation; it merely declares that they are. This leads to another
problem. Untethered from the statute’s actual words, the majority is left to
divine the Legislature’s intent from the statute’s “historical background,
statutory context, and other relevant factors,” supra ¶ 11, comparatively
weak tools of construction that are themselves open to ambiguity.
Moreover, the majority does not adequately address how its analysis is
compatible with this Court’s prior decisions holding that the Legislature
intended the statute to be victim-directed. When the statute’s language is
examined and the relevant decisions from this Court are considered, the
answer is clear and contrary to the majority’s analysis: a defendant can be
convicted of more than one count of resisting arrest arising out of a single
event without violating double jeopardy if the defendant has committed
the criminal acts composing that offense against more than one officer.
¶25 Whether a defendant has received multiple punishments for
committing one offense depends on the Legislature’s intent. The
“substantive power to prescribe crimes and determine punishments is
vested with the legislature.” Ohio v. Johnson, 467 U.S. 493, 499 (1984); see also
Brown v. Ohio, 432 U.S. 161, 165 (1977) (“[T]he legislature remains free under
the Double Jeopardy Clause to define crimes and fix punishments.”). “[T]he
question of what punishments are constitutionally permissible is no
different from the question of what punishments the Legislative Branch
intended to be imposed.” Albernaz v. United States, 450 U.S. 333, 344 (1981).
Thus, if the Legislature intends to impose multiple punishments for a single
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STATE v. JURDEN
Howe, J., Dissenting
offense, the punishments are not truly multiple for purposes of double
jeopardy. Id.¶26 Although the majority finds A.R.S. § 13–2508 ambiguous “on
its face” about whether it is event-directed or victim-directed, it does so
without examining the very things that make up the “face” of a statute: its
words.3 No statute identifies itself as event-directed or victim-directed; that
depends on the Legislature’s intent for the statute. Johnson, 467 U.S. at 499(“[T]he question under the Double Jeopardy Clause whether punishments
are ‘multiple’ is essentially one of legislative intent.”). And the best and
most reliable indication of that intent is the statute’s language. State v.
Hansen, 215 Ariz. 287, 289 ¶ 7, 160 P.3d 166, 168 (2007). If the language is
clear and unequivocal, id., we need not resort to other methods of
interpretation, State v. Christian, 205 Ariz. 64, 66 ¶ 6, 66 P.3d 1241, 1243
(2003).
¶27 Contrary to the majority’s declaration of ambiguity, the
words of A.R.S. § 13–2508 are clear and unequivocal that the crime of
resisting arrest is victim-directed. The resisting arrest statute provides in
relevant part:
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.
3Of course, a statute’s words are not the only source of
ambiguity; ambiguity may also result from “the general scope and meaning
of [the] statute when all its provisions are examined,” State v. Sweet, 143
Ariz. 266, 269, 693 P.2d 921, 924 (1985). But the majority fails to explain how
the provisions of A.R.S. § 13–2508, when considered together, result in
ambiguity.
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STATE v. JURDEN
Howe, J., Dissenting
A.R.S. § 13–2508(A). “Passive resistance” is “a nonviolent physical act or
failure to act that is intended to impede, hinder or delay the effecting of an
arrest.” A.R.S. § 13–2508(C). Thus, the statute requires proof that an
individual (1) intentionally prevented or attempted to prevent (2) a person
reasonably known to him to be a peace officer acting under color of
authority (3) from effecting an arrest by (4) (a) using or threatening physical
force, (b) creating a substantial risk of physical injury to the officer, or
(c) engaging in passive resistance.
¶28 The statute’s plain language demonstrates that resistance to
arrest depends on each person resisted—on each victim—not on the event
of the arrest itself. As the preamble provides, to violate A.R.S. § 13–2508, an
individual must perform one of the actions defined by subsection (A) to
prevent “a person” from effecting an arrest. The statute then lists alternative
ways in which the individual can commit the offense; all these alternatives
are directed towards “a person,” whether it be a peace officer or another.
Specifically, for subsections (A)(1) and (A)(2), the individual must use or
threaten to use physical force “against the peace officer or another” or use
any other means that creates a substantial risk or causes physical injury “to
the peace officer or another.” A.R.S. § 13–2508(A)(1)–(2). For subsection
(A)(3), an individual resists arrest by intentionally engaging in passive
resistance, that is, by engaging in a nonviolent physical act or failing to act
intending to impede, hinder, or delay a person from effecting an arrest.
Under the words of the statute, an individual commits the offense not by
resisting the event of an arrest, but by resisting the peace officer effecting
the arrest. The statute is thus not event-directed, but victim-directed.4
¶29 This interpretation of A.R.S. § 13–2508 is not original. This
Court has previously recognized that A.R.S. § 13–2508 is a victim-directed
crime. See State v. Mitchell, 204 Ariz. 216, 219 ¶ 16, 62 P.3d 616, 619 (App.
2003) (“The purpose of the resisting arrest statute is to protect peace officers
and citizens from substantial risk of physical injury.”); State v. Sorkhabi, 202
Ariz. 450, 453 ¶ 11, 46 P.3d 1071, 1074 (App. 2002) (“By the plain language
of the statute, resisting arrest requires the defendant to prevent, or attempt
4 The majority claims that I am merely analyzing the elements
of the offense of resisting arrest and not the “legislature’s description of the
scope of the conduct.” Supra ¶ 19. But because the “scope of the conduct”
proscribed by a statute is described by the elements of the offense in that
statute, I fail to see the distinction. No matter how the analysis is
characterized, however, I am analyzing the words of A.R.S. § 13–2508 to
determine whether they clearly and unequivocally show that the statute is
victim-directed, an analysis the majority declines to perform.
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STATE v. JURDEN
Howe, J., Dissenting
to prevent, arrest by actions defined under § 13–2508(A), while directed
against another individual.”); see also State v. Womack, 174 Ariz. 108, 111, 847
P.2d 609, 612 (App. 1992) (providing that the legislative intent of A.R.S.
§ 13–2508, which was adopted from Hawaii’s statute, “is to prohibit threats
or any conduct that creates a substantial risk of injury to another, including
the officer”); 1 Rudolph J. Gerber, Criminal Law of Arizona 2508–3 (2d ed.
1993 & Supp. 2000) (“The statute’s purpose is to prohibit threats or any
conduct that creates a substantial risk of injury to another, including the
officer.”). The majority disregards these decisions because they do not
address the double jeopardy issue. See supra ¶ 17. But that does not diminish
their effect; they address the issue before us today—whether the statute is
event-directed or victim-directed—and resolve it contrary to the majority’s
conclusion.
¶30 Because the plain language demonstrates that resisting arrest
is a victim-directed crime, when a defendant has resisted more than one
person, the individual can be charged with and convicted of more than one
count of resisting arrest—one for each person that the individual has
committed criminal conduct against—without running afoul of the Double
Jeopardy Clause. See Albernaz, 450 U.S. at 344 (“Where Congress intended
. . . to impose multiple punishments, imposition of such sentences does not
violate the Constitution.”); see also State v. Burdick, 211 Ariz. 583, 585–86
¶¶ 5–10, 125 P.3d 1039, 1041–42 (App. 2005) (“[W]here crimes against
persons are involved we believe a separate interest of society has been
invaded with each victim and that, therefore, where two persons are
assaulted, there are two separate offenses.”); State v. Riley, 196 Ariz. 40, 45–
46 ¶¶ 17–19, 992 P.2d 1135, 1140–41 (App. 1999) (holding the defendant
properly convicted of multiple counts of armed robbery against bank
employees even though the defendant robbed only the bank).
Consequently, Jurden’s two convictions for resisting arrest arising from his
single arrest do not violate the Double Jeopardy Clause.
¶31 Despite the statute’s language and our prior decisions
demonstrating that the statute is victim-directed, the majority believes that
the Legislature could not have intended for it to be interpreted that way.
Supra ¶ 20. If it were, the majority claims, the number of resisting arrest
offenses an individual could face would depend on a “fortuitous event[]”—
the number of officers involved in an arrest. The majority presents two
hypotheticals to illustrate its point.
¶32 But the majority misunderstands the proper analysis, and
neither hypothetical accurately describes how the statute works. As noted
throughout my dissent, an individual commits resisting arrest only if he
commits the statutorily-proscribed conduct against a peace officer effecting
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STATE v. JURDEN
Howe, J., Dissenting
an arrest. Thus, merely waving a gun “in the direction of” 30 peace
officers—without additional evidence that each of those 30 officers was
attempting to effect the individual’s arrest—does not mean that the
individual committed 30 acts of resisting arrest. Likewise, an individual
who passively lies on the ground when 15 officers arrive on the scene has
not committed 15 acts of resisting arrest by passive resistance without
additional evidence that each of the 15 officers was attempting to effect the
individual’s arrest. Mere attendance at the scene of an arrest does not make
a peace officer a victim of resisting arrest; the officer must be attempting to
effect an arrest before he may be a victim. The majority consequently fails
to show that interpreting the statute as victim-directed causes absurd
results. The majority’s argument does not change that the Legislature
intended the statute to be victim-directed, which means that Jurden was
properly convicted of two counts of resisting arrest.
¶33 The majority bases its contrary conclusion that A.R.S. § 13–
2508 is an event-directed crime not on the statute’s language or any decision
interpreting it, but on the statute’s historical background, its statutory
context, and the Legislature’s 2012 amendment that added “passive
resistance” as a way of committing resisting arrest. See supra ¶ 11. But these
circumstances are themselves ambiguous and consequently too thin to bear
the weight that the majority puts on them.
¶34 The majority first finds that the statute is event-directed
because when it was enacted in 1977 as part of the new Arizona Criminal
Code, it was a “sharp break” from the prior law on resisting arrest. Supra
¶ 13. Under pre-1977 law, an individual was permitted to resist an illegal
arrest, but the Legislature did not keep that provision in the new A.R.S.
§ 13–2508. According to the majority, this decision signifies that the
Legislature wanted to bring A.R.S. § 13–2508 in line with the common law,
which provided that resisting arrest was a crime against the State.
¶35 The majority, however, provides no authority stating that the
Legislature made the change for this reason. The Legislature may have had
any number of reasons for making such a change. It may have simply
believed that prohibiting an individual from resisting an arrest whether or
not it was legal enhanced the safety of peace officers. Making the change
for that reason is consistent with a peace officer/victim-directed
interpretation of the statute. Moreover, the majority’s argument fails to
account for this Court’s decisions—all decided after 1977—that A.R.S. § 13–
2508 is a victim-directed crime. See Mitchell, 204 Ariz. at 219 ¶ 16, 62 P.3d at
619; Sorkhabi, 202 Ariz. at 452 ¶ 9, 46 P.3d at 1073; Womack, 174 Ariz. at 111,
847 P.2d at 612.
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STATE v. JURDEN
Howe, J., Dissenting
¶36 The majority also notes that A.R.S. § 13–2508 is organized in
the Arizona Criminal Code with other crimes that the majority classifies as
“crimes against state authority,” such as escape, failure to appear, and
hindering prosecution. Supra ¶ 14. Undoubtedly, resisting arrest has similar
aspects to those other crimes, which explains its inclusion in a section with
those crimes in the criminal code. But that does not mean that resisting
arrest is not a victim-directed crime. Unlike escape, failure to appear, and
hindering prosecution, resisting arrest cannot be committed without
physical resistance to another person that puts that person’s safety or well-
being at risk. Moreover, the organizational placement of the statute means
little in the face of subsequent decisions from this Court holding that
resisting arrest is a victim-directed crime. See supra ¶ 29.
¶37 The majority next finds that because the Legislature amended
the statute in 2012 to include “passive resistance,” the amendment further
indicates the Legislature’s intent that the statute be an event-directed crime.
See supra ¶ 15. But nothing in the amendment changes the statute’s focus on
the peace officer as the victim. Before the amendment, the statute was
victim-directed because an individual committed the offense by using or
threatening physical force against a peace officer or creating a substantial
risk of physical injury to a peace officer to prevent the peace officer from
effecting an arrest. A.R.S. § 13–2508(A)(1)–(2). The amendment merely adds
a third way of committing the crime, passive resistance. A.R.S. § 13–
2508(C). The statute nevertheless remains victim-directed. An individual
engaging in passive resistance still must direct his resistance towards
someone else; without a peace officer effecting an arrest, the individual
need not engage in passive resistance.
¶38 The amendment had no effect on changing the interpretation
of A.R.S. § 13–2508 for yet another reason. When the Legislature enacted
the amendment, it was aware that this Court had already determined in
Mitchell, Sorkhabi, and Womack that A.R.S. § 13–2508 was a victim-directed
crime and that the purpose of the statute was to protect peace officers and
citizens from substantial risk of physical injury. See State v. Box, 205 Ariz.
492, 496, 73 P.3d 623, 627 (App. 2003) (noting that “the legislature is
presumed to know existing law when it enacts a statute”). Thus, contrary
to the majority’s position, the Legislature added “passive resistance”
merely to broaden the scope for actions that can constitute resisting arrest.
The amendment consequently does not support the majority’s position. The
factors the majority relies on are ambiguous and do not clearly support its
interpretation of the resisting arrest statute.
¶39 The Legislature indeed could have chosen to draft A.R.S. § 13–
2508 as event-directed, so that a defendant would be guilty of only one
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STATE v. JURDEN
Howe, J., Dissenting
resisting arrest crime regardless of the number of peace officers the
defendant resisted. However, it did not. The Legislature drafted the statute
as victim-directed because it wanted to protect peace officers from the
substantial risk of injury when they effectuate arrest, as the statute’s clear
language provides and as this Court has repeatedly recognized. Under this
correct understanding of the law, Jurden was properly convicted of two
counts of resisting arrest because he committed separate criminal acts
against two police officers. For that reason, I dissent.
:ama
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