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IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
LONNIE DAVID CLEARY,
Appellant.
No. 2 CA-CR 2013-0532
Filed October 10, 2014
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND
MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20121911001
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Alan L. Amann, Assistant Attorney General, Tucson
Counsel for Appellee
STATE v. CLEARY
Decision of the Court
Lori J. Lefferts, Pima County Public Defender
By Katherine A. Estavillo, Assistant Public Defender, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which
Judge Howard and Judge Vásquez concurred.
K E L L Y, Presiding Judge:
¶1
Following a jury trial, Lonnie Cleary was convicted of
attempted first-degree murder and aggravated assault. The trial
court sentenced him to concurrent, presumptive terms of
imprisonment, the longer of which was 10.5 years.1 Cleary argues
the court abused its discretion by including a jury instruction on
voluntary intoxication because no evidence supported giving that
instruction. He also contends the court erred by failing to vacate his
conviction for aggravated assault. For the following reasons, we
affirm his convictions and sentences.
Factual and Procedural Background
¶2
We view the facts in the light most favorable to
sustaining the verdicts. State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186
P.3d 33, 34 (App. 2008). Cleary fired a gun at L.E.’s vehicle while
L.E. was driving in central Tucson in May 2012. One of the bullets
hit L.E. in the lower left side of his back. Cleary was charged with
attempted first-degree murder and aggravated assault.
1Cleary
also pled guilty to one count each of theft of property
and production of marijuana. The trial court sentenced him to
concurrent terms of imprisonment on both counts.
Those
convictions and sentences are not at issue in this appeal.
2
STATE v. CLEARY
Decision of the Court
¶3
After the jury found Cleary guilty of both charges, the
trial court sentenced him as described above. Cleary timely
appealed.
Discussion
¶4
Cleary first argues the trial court erred by instructing
the jury regarding voluntary intoxication.
The reference to
voluntary intoxication was part of the instructions defining
“recklessly” in connection with the instruction that a person could
commit aggravated assault if the person “intentionally, knowingly,
or recklessly causes any physical injury to another person or
intentionally places another person in reasonable apprehension of
imminent physical injury and the person uses a deadly weapon or a
dangerous instrument.” The court’s instruction for “recklessly”
stated,
“‘Recklessly’ means, with respect to a
result or a circumstance, that a person is
aware of and consciously disregards a
substantial and unjustifiable risk that the
result will occur or that the circumstance
exists.
....
A person who creates such a risk but
is unaware of such risk solely by reason of
voluntary intoxication also acts recklessly
with respect to such risk.
Cleary objected to the portion of the instruction that referred to
voluntary intoxication, because “there’s no evidence of that.” The
court declined to remove the voluntary intoxication instruction,
stating, “there’s no prejudice to the defendant since there’s no
evidence of anybody being intoxicated.”
¶5
The state concedes “there was no evidence of
intoxication presented at trial” and “the voluntary intoxication
instruction should not have been given.” The state argues, however,
that the instruction was “only harmless and does not require
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STATE v. CLEARY
Decision of the Court
reversal.”
We assume without deciding that the voluntary
intoxication instruction was erroneous. “Erroneous jury instructions
are subject to a harmless error analysis.” State v. Dann, 205 Ariz. 557,
¶ 18, 74 P.3d 231, 239 (2003). “Harmless error review places the
burden on the state to prove beyond a reasonable doubt that the
error did not contribute to or affect the verdict or sentence.” State v.
Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d 601, 607 (2005). “If no
rational jury could find otherwise even if properly instructed, ‘the
interest in fairness has been satisfied and the judgment should be
affirmed.’” Dann, 205 Ariz. 557, ¶ 18, 74 P.3d at 239, quoting Rose v.
Clark, 478 U.S. 570, 579 (1986).
¶6
As an initial matter, we note that neither the state nor
Cleary presented evidence that Cleary was intoxicated or referred to
intoxication. However, in addition to giving the instruction on
voluntary intoxication, the trial court also instructed the jury that it
was to “determine the facts only from the evidence produced in
court” and that it “should not guess about any fact.” The court
instructed the jury that, after it had determined the facts, it “may
find that some instructions no longer apply.” We presume jurors
follow their instructions. State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d
441, 443 (1996). Cleary offers no evidence to suggest the jurors
disregarded these instructions, and we will not assume they based
their guilty verdict on a factual scenario that was not supported by
the evidence. Cf. Griffin v. United States, 502 U.S. 46, 59 (1991) (when
jurors “have been left the option of relying upon a factually
inadequate theory,” there is “reason to think that their own
intelligence and expertise will save them from” relying upon that
theory, “since jurors are well equipped to analyze the evidence”)
(emphasis omitted).
¶7
Cleary argues that the voluntary intoxication
instruction was “particularly prejudicial” because it may have
prevented the jury from deciding he shot at L.E. only because of fear
that L.E. had a weapon. Although Cleary did not argue to the jury
that he acted in self-defense, the trial court instructed the jury that
certain conditions can justify the use of physical force in selfdefense.
Cleary argues that “[b]y submitting a ‘voluntary
intoxication’ instruction to the jury, the trial court was, in effect,
4
STATE v. CLEARY
Decision of the Court
giving [the jurors] an alternative theory for [Cleary’s] actions besides
self-defense.” He asserts that “[t]he jury likely relied on this
instruction to conclude that [Cleary’s] decision to shoot was not
based on fear from seeing a gun, but rather on fear induced by
intoxication.”
¶8
The state presented evidence that L.E. was driving in
central Tucson looking for rental houses. He was driving slowly to
read rental signs and had made several u-turns to get a closer look at
the signs. When L.E. saw Cleary, a pedestrian, enter the roadway,
he stopped his vehicle. After L.E. and Cleary made eye contact,
Cleary “gesture[d] towards his waist,” produced a gun, and began
shooting at L.E. L.E.’s hands were on the steering wheel, and he did
not have a weapon or make any threats to Cleary while he was
driving.
¶9
Cleary told police he believed L.E. had a gun, but he
could not explain how he knew that. Cleary also told police L.E.’s
hands were on the steering wheel when Cleary first fired his gun at
L.E.’s vehicle, and he could not “explain any threat he perceived
from the victim.” Cleary stated he saw L.E. duck into the passenger
side of the vehicle after he fired the first shot and continued
shooting. No gun was found in L.E.’s vehicle or in the area. Based
on this evidence, we conclude that the jury would not have accepted
the self-defense theory even if the court had not given the voluntary
intoxication instruction and the error therefore was harmless.
¶10
Cleary next argues the trial court erred in failing to
vacate his conviction for aggravated assault because the conviction
for attempted first-degree murder arose out of the same conduct.
He concedes he did not raise this issue in the trial court. Therefore,
we review only for fundamental, prejudicial error. Henderson, 210
Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.
¶11
Cleary cites State v. Canion, 199 Ariz. 227, 16 P.3d 788
(App. 2000), and State v. Williams, 232 Ariz. 158, 302 P.3d 683 (App.
2013), in support of his argument. He characterizes the question
before this court in those cases as “whether a trial court should
vacate a lesser conviction when there is only one incident of violence
by the defendant against the victim.” However, the issue before us
5
STATE v. CLEARY
Decision of the Court
in Canion and Williams was not simply whether a court should
vacate any lesser conviction when there is only one incident of
violence by the defendant; instead, the question was whether a
defendant may be convicted of two murder charges when there is
only one victim.
¶12
In Canion, the defendant was charged with first-degree
felony murder and first-degree premeditated murder. 199 Ariz. 227,
¶ 5, 16 P.3d at 790. The indictment was “imprudently worded to
place the two alternative theories of first degree murder in
alternative counts, rather than simply charging first degree murder
under two alternative theories in the same count.” Id. ¶ 22. The jury
found Canion guilty of the lesser included offense of second-degree
murder and felony murder. Id. ¶ 7. The trial court determined the
convictions for felony murder and second-degree murder “merged,”
and it sentenced Canion only for felony murder. Id. ¶ 8. We noted
that “a finding of guilt of felony murder and second degree murder
are not inconsistent” because the state proved the necessary
elements to secure convictions for both crimes. Id. ¶ 20. We
observed that, because the result of the two separate crimes was the
same—the death of another human—the trial court “prudently”
refused to impose multiple sentences. Id. Noting the trial court’s
“unfortunate” use of the word “merger,” we stated that “the better
procedure would have been to simply vacate the second degree
murder conviction, as opposed to ‘merging’ the two convictions.”
Id. Thus, we vacated Canion’s second-degree murder conviction. Id.
¶13
In Williams, the defendant was convicted of first-degree
felony murder and second-degree murder for the homicide of a
single victim. 232 Ariz. 158, ¶ 3, 302 P.3d at 684. Relying on Canion,
we described the “shared question” in Canion and Williams as
“whether a trial court should vacate a lesser murder conviction
when there is only one victim.” Id. ¶ 6. We concluded that “the
crime of murder of a single victim necessarily results in one
conviction and one sentence,” id. ¶ 10, and we vacated Williams’s
conviction and sentence for second-degree murder. Id. ¶ 11.
¶14
The reasoning in Canion and Williams does not apply
here, where Cleary was convicted of first-degree attempted murder
and aggravated assault. Unlike premeditated murder and felony
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STATE v. CLEARY
Decision of the Court
murder, first-degree attempted murder and aggravated assault are
different crimes with different results; they are not simply two forms
of the same crime that can be charged under alternative theories. See
A.R.S. § 13-1105(A)(1) (defining first-degree premeditated murder);
§ 13-1001 (defining attempt); § 13-1203(A) (defining assault);
§ 13-1204(A) (defining aggravated assault). By shooting at L.E.,
Cleary took a “step in a course of conduct planned to culminate in
commission” of first-degree murder, see § 13-1001(A)(2), and by
striking L.E. with a bullet fired from a gun, he caused physical injury
to L.E. using a deadly weapon or dangerous instrument, see
§§ 13-1203, 13-1204(A). Thus, Cleary properly could be convicted
and sentenced for both crimes. We conclude that the trial court did
not commit fundamental error by not vacating the conviction for
aggravated assault.
Disposition
¶15
For the foregoing
convictions and sentences.
reasons,
7
we
affirm
Cleary’s