State v. Ibarra

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

ERIC BRAN IBARRA, SR., Appellant.

No. 1 CA-CR 18-0767
FILED 6-4-2020

Appeal from the Superior Court in Yuma County
No. S1400CR201701000
The Honorable Stephen J. Rouff, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michelle L. Hogan
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Robert J. Trebilcock
Counsel for Appellant
 STATE v. IBARRA
Decision of the Court

MEMORANDUM DECISION

Judge Michael J. Brown delivered the decision of the Court, in which
Presiding Judge Jennifer B. Campbell and Judge Lawrence F. Winthrop
joined.

B R O W N, Judge:

¶1 Eric Bran Ibarra, Sr. appeals several convictions and sentences
relating to a domestic violence incident. For the following reasons, we
affirm.

BACKGROUND

¶2 On September 28, 2017, police responded to a domestic
disturbance call. When the responding police officer arrived at Ibarra’s
house, he initially heard voices coming from an attached garage and
noticed the front door was slightly ajar. When the officer knocked on the
front door, an unidentified man saw him and shut the door. The officer
continued to knock harder until V.P., Ibarras’s wife, eventually opened the
door. V.P. had visible scratches on her face and neck area and appeared
emotionally distraught. Once V.P. agreed to step outside, she confirmed
that Ibarra had been in the garage and there were weapons in the house.

¶3 V.P. was escorted away and the responding officer positioned
his vehicle outside the front of the house and used a P.A. system to
communicate with Ibarra. Soon thereafter, additional officers arrived and
secured the perimeter of the house. Using the loudspeaker, officers
repeatedly identified themselves, informed Ibarra he was under arrest, and
asked that he come outside. The volume of the loudspeaker was such that
it could be heard down the street. During this time, several officers talked
to V.P. about what had occurred.

¶4 Several hours later, officers received V.P.’s consent to search
the house and found a loaded gun in the master bedroom. After clearing
the house and garage, officers saw that Ibarra’s dog was “favoring” a shed
in the backyard. They surrounded the structure, opened the door slightly,
and saw Ibarra lying on the ground. Officers told Ibarra to place his hands

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outside the door. After officers repeated these commands several times,
Ibarra submitted to arrest.

¶5 Ibarra told medical personnel that he hid in the shed for
approximately five hours and claimed he “passed out several times.” After
he was arrested, Ibarra admitted to a detective that he argued with his wife
and punched a wall “because he was pissed off.” Ibarra, however, claimed
the gun found in the master bedroom belonged to his son.

¶6 As relevant here, the State charged Ibarra with misconduct
involving weapons, assault, criminal damage, and resisting arrest. Before
trial, Ibarra stipulated he had committed five prior felony convictions
(aggravated assault, shoplifting, failing to register as a sex offender,
attempted failing to register as a sex offender, and theft) and was a
prohibited possessor of a weapon for purposes of the trial.

¶7 At trial, Ibarra moved for judgment of acquittal pursuant to
Arizona Rule of Criminal Procedure (“Rule”) 20, asserting in part that
merely hiding from the police does not constitute passive resistance under
the resisting arrest statute. The court denied the motion, reasoning that
“hiding can be fairly characterized as passive resistance to prevent or
impede the officers from arresting him.” The jury found Ibarra guilty of
misconduct involving weapons and resisting arrest, but acquitted him of
criminal damage. The court imposed a total of 10 years’ imprisonment, and
this timely appeal followed.

DISCUSSION

A. Failure to Sever

¶8 Ibarra argues the superior court erred by failing to sua sponte
sever the misconduct involving weapons charge from the other charges.
Because Ibarra did not move for severance at the trial level, he has waived
this argument on appeal. See Ariz. R. Crim. P. 13.4(c) (“The right to
severance is waived if the defendant fails to timely file and renew a proper
motion for severance.”). Therefore, we review solely for fundamental error.
State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). To establish fundamental
error, a defendant must show “(1) the error went to the foundation of the
case, (2) the error took from the defendant a right essential to his defense,
or (3) the error was so egregious that he could not possibly have received a
fair trial.” State v. Escalante, 245 Ariz. 135, 142, ¶ 21 (2018). If the defendant
establishes prong one or two, he must show the error resulted in prejudice.
Id.

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¶9 Ibarra’s assertion that the State invited error by joining the
charges in the initial indictment fails. Ibarra has not provided any legal
authority supporting his proposition that the State must prove the absence
of prejudice, nor has he shown that the superior court must sever charges
on its own accord. See Cullum v. Cullum, 215 Ariz. 352, 355, ¶ 14 n.5 (App.
2007) (noting that appellate courts “will not consider arguments posited
without authority”). Contrary to Ibarra’s contention, he bears the burden
of proving fundamental, prejudicial error. See Escalante, 245 Ariz. at 142,
¶ 21.

¶10 Rule 13.3(a)(2)–(3) permits joinder of separate charges when
they are “based on the same conduct or are otherwise connected together
in their commission” or they are “part of a common scheme or plan.” In
the interest of judicial economy, joinder is viewed as the rule not the
exception. State v. Van Winkle, 186 Ariz. 336, 339 (1996). Nevertheless, the
superior court is authorized, but not required, to sever charges on its own
accord “if necessary to promote a fair determination of any defendant’s
guilt or innocence of any offense.” Ariz. R. Crim. P. 13.4(a); see also State v.
Longoria, 123 Ariz. 7, 10 (App. 1979).

¶11 In State v. Burns, our supreme court held that “[a]bsent an
appropriate factual nexus, trial courts generally should not join a
misconduct-involving-weapons charge, or any charge that requires
evidence of a prior felony conviction, unless the parties have stipulated to
a defendant’s status as a prohibited possessor.” 237 Ariz. 1, 15, ¶ 39 (2015).
The supreme court concluded, however, that any error in joining the
charges in that case was harmless, finding there was overwhelming
evidence of guilt, the State did not place any emphasis on the defendant’s
felon status, and the jury was instructed to consider each charge separately.
Id. at 15, ¶ 38.

¶12 The holding in Burns does not require reversal in this case.
Ibarra did not move for severance and expressly stipulated to the admission
of his prior felony convictions at trial. Ibarra used his prior felony
convictions to his benefit, arguing in closing argument that his criminal
history caused him to fear and hide from police officers. The record shows
the State presented substantial evidence of Ibarra’s guilt as to each charge
and focused primarily on Ibarra’s conduct on the date of the offenses rather
than his criminal history. Significantly, the superior court instructed the
jury to consider each charge separately, and Ibarra was ultimately acquitted
of the criminal damage charge. See State v. Newell, 212 Ariz. 389, 403, ¶ 68
(2006) (noting that juries are presumed to follow the court’s instructions).
Even if joinder of the charges constituted error, Ibarra has not shown that

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the error resulted in prejudice or prevented him from receiving a fair trial.
See Escalante, 245 Ariz. at 142, ¶ 21. We therefore conclude that the court’s
failure to sua sponte order severance did not amount to fundamental error.

B. Denial of Rule 20 Motion

¶13 Ibarra argues the superior court erred in denying his Rule 20
motion on the resisting arrest charge because the evidence that he hid from
police officers was insufficient to prove passive resistance under A.R.S.
§ 13-2508(A)(3) and (C).

¶14 We review de novo the denial of a Rule 20 motion. State v.
West, 226 Ariz. 559, 562, ¶ 15 (2011). In doing so, the “relevant question is
whether, after viewing the evidence in the light most favorable to the
prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.” Id. at ¶ 16 (citations
omitted). We must determine whether “substantial evidence” supports the
conviction, which means sufficient proof “to support a conclusion of
defendant’s guilt beyond a reasonable doubt.” Id. “Both direct and
circumstantial evidence should be considered in determining whether
substantial evidence supports a conviction.” Id. We also review de novo
issues of statutory interpretation. State v. Francis, 243 Ariz. 434, 435, ¶ 6
(2018). Section 13-2508 states 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.

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.

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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.

¶15 The evidence presented at trial showed that officers loudly
announced their presence and intent to place Ibarra under arrest over an
operative loudspeaker, the announcements persisted over a lengthy period
of time, and Ibarra never complied. Officers found Ibarra hiding in the shed
of his backyard. After several commands, Ibarra submitted to arrest and
admitted that he hid for approximately five hours.

¶16 Based on the plain language of § 13-2508(A)(3) and (C),
substantial evidence supports the jury’s verdict that Ibarra committed
resisting arrest by passive resistance. As noted, Ibarra took steps to hide
from officers and refused to cooperate with their repeated commands; thus,
he impeded, hindered, and delayed the arrest. See A.R.S. § 13-2508(A)(3),
(C); cf. State v. Jurden, 239 Ariz. 526, 531, ¶¶ 22–23 (2016) (noting that “a
person who simply does not open the door when officers attempt to arrest
him commits passive resistance” under § 13-2508(C); it “does not require
action directed against an officer, but serves to punish anyone who impedes
the arrest, which is a function of the state’s authority”); State v. Matthews, 245 Ariz. 281, 286, ¶ 16 (App. 2018) (characterizing potential offenses under
subsections (A)(3) and (C) as “nonviolent physical acts,” such as “run[ning]
away without making physical contact” or going “limp to make it difficult
for the officers to effect the arrest”). Even assuming Ibarra may have
“passed out several times” while hiding from officers, his statements to
medical personnel, combined with the loud, continuous nature of the
officers’ announcements were sufficient to show he intended to hide from
officers for an extensive period of time.

¶17 We are not persuaded by Ibarra’s suggestion that construing
§ 13-2508(A)(3) and (C) as prohibiting “hiding” would render it void for
vagueness. Because we have concluded that his conduct here plainly falls
within the scope of the statute, he lacks standing to challenge it for
vagueness. See Parker v. Levy, 417 U.S. 733, 756 (1974) (“One to whose
conduct a statute clearly applies may not successfully challenge it for
vagueness.”); State v. Tocco, 156 Ariz. 116, 119 (1988).

¶18 Even if Ibarra has standing, the statute provides reasonable
notice as to what constitutes resisting arrest and what it means to engage in
passive resistance. See A.R.S. § 13-2508(A)(3) and (C) see also State v. Varela, 120 Ariz. 596, 599 (1978) (“The basic rule in reviewing a statute for
vagueness is to determine whether the offense is defined in terms that

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people of average intelligence can understand.”). Ibarra suggests the
Arizona legislature could have been more specific by adding language
specifically addressing “avoiding arrest,” “evading arrest,” or “hiding out.”
But we discern no meaningful difference between the legislature’s terms
and those Ibarra identifies as lending greater specificity.

¶19 Ibarra poses several examples that may present a more
difficult analysis of passive resistance than the conduct at issue here. The
fact that a statute reaches broadly, or can be applied flexibly, does not make
it impermissibly vague. See State v. Coulter, 236 Ariz. 270, 274–75, ¶ 9 (App.
2014) (“A statute is not vague simply because it is broad or that there may
be difficulty in deciding whether certain marginal conduct falls within the
scope of the statute.”). Additionally, the statute provides specificity in what
constitutes “passive resistance” not just by defining the phrase, but by also
requiring proof of intent. See A.R.S. § 13-2508(A); Gonzalez v. Carhart, 550
U.S. 124, 149 (2007) (“[S]cienter requirements alleviate vagueness
concerns.”).

¶20 Finally, Ibarra’s reliance on State v. Womack, 174 Ariz. 108
(App. 1992), is misplaced. In that case, we concluded the defendant’s mere
flight, unaccompanied by physical contact with the officers, did not
constitute resisting arrest under A.R.S. § 13-2508(A)(2). Id. at 111–14.
Womack, however, was decided before the legislature amended A.R.S. § 13-
2508 to include passive resistance under subsection (A)(3) and dealt with
subsection (A)(2), which requires proof the defendant created “a substantial
risk of causing physical injury.” Id. at 113. Thus, Womack does not support
Ibarra’s position. Accordingly, the superior court did not err in denying
Ibarra’s Rule 20 motion because a rational trier of fact could have found the
essential elements of resisting arrest by passive resistance beyond a
reasonable doubt.

CONCLUSION

¶21 We affirm Ibarra’s convictions and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

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