State v. Riester

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

ROGER PERRY RIESTER,
Appellant.

No. 1 CA-CR 19-0524
FILED 8-27-2020

Appeal from the Superior Court in Maricopa County
No. CR2019-106627-001
The Honorable Arthur T. Anderson, Judge

AFFIRMED

COUNSEL

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

Maricopa County Public Defender’s Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge David D. Weinzweig delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge D. Steven Williams joined.

W E I N Z W E I G, Judge:

¶1 Roger Perry Riester appeals his convictions and sentences for
three counts of aggravated assault. He argues the superior court erred by
failing to instruct the jury on defensive display of a firearm. Finding no
error, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 Riester called police from his house to report that someone
had followed him “all the way to his home,” adding that he just
encountered “five other people wanting to kill him.” Police officers
responded and left after finding no evidence that Riester was being
followed. Unsatisfied, Riester later drove to police headquarters in
downtown Phoenix, reasoning he might draw out “the people [who] were
following him.”

¶3 Riester arrived at police headquarters after dark. A police
officer and volunteer sat at the front desk. Riester appeared at the entrance
holding his .357 Magnum Revolver. The officer told Riester over an
intercom that firearms were not allowed inside the building. Riester placed
his firearm on the ground and was admitted. He repeated to the officer that
he was being pursued by people with bad intentions. He was described as
“unnerved” and “moving back and forth.” The officer concluded that
Riester was a “paranoid mess” and told him to return home. Riester
abruptly exited but did not leave. He instead paced outside the entrance
for twenty minutes, crouching behind planters whenever cars drove by.

¶4 Around this time, three unarmed, plainclothes officers were
returning on foot to headquarters. As they approached the front entrance,
Riester drew his firearm, aimed at the officers and warned to “[g]et back or
I’ll fucking shoot you.” The officers darted for cover and escaped.

¶5 Riester called 9-1-1 from his cell phone, insisting that a
“bunch” of people were “chas[ing] [him] all around town” in “several
different vehicles.” He was arrested without further incident. Officers

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Decision of the Court

found the firearm in a nearby planter and two speedloaders (to quickly
reload the firearm) in Riester’s pockets.

¶6 A grand jury indicted Riester on three counts of aggravated
assault, class 3 dangerous felonies, and one count of misconduct involving
weapons, a class 4 felony. See A.R.S. §§ 13-105(13); -1203(A)(2); -1204(A)(2),
(E); -3102(A)(4), (M). Riester pleaded not guilty to all charges. Later, the
State successfully moved to dismiss the misconduct involving weapons
charge.

¶7 A five-day jury trial followed. Riester defended on the
grounds that he feared for his life and did not intend to harm the officers.
The State presented five witnesses. Riester unsuccessfully moved for a Rule
20 judgment of acquittal at the close of the State’s case. Although he did
not testify, Riester called three witnesses. And, at issue here, he also
requested a standard jury instruction on the justification of defensive
display of a firearm. See A.R.S. § 13-421(A), (D)(2). The superior court
denied the request.

¶8 The jury convicted Riester on three counts of aggravated
assault and found they were dangerous offenses. After denying Riester’s
post-trial motions, the court sentenced him to concurrent five-year prison
terms for each conviction, minus 207 days of pre-incarceration credit. See
A.R.S. § 13-704(A). Riester timely appealed. We have jurisdiction under
Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-
120.21(A)(1), 13-4031 and -4033(A)(1).

DISCUSSION

¶9 Riester argues the superior court erroneously refused to
provide the standard jury instruction to justify the defensive display of a
firearm. “Although we normally review denial of a jury instruction for an
abuse of discretion, ‘we independently assess whether the evidence
supported a justification instruction, because that is a question of law and
involves no discretionary factual determination.’” State v. Pina-Barajas, 244
Ariz. 106, 108, ¶ 4 (App. 2018) (quoting State v. Almeida, 238 Ariz. 77, 80, ¶
9 (App. 2015)). A party is entitled to a jury instruction on any theory of the
case that the evidence reasonably supports. State v. Bolton, 182 Ariz. 290,
309 (1995).

¶10 A person may defensively display a firearm against another
“when and to the extent a reasonable person would believe that physical
force is immediately necessary to protect himself against the use or
attempted use of unlawful physical force or deadly physical force.” A.R.S.

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Decision of the Court

§ 13-421(A). This instruction is provided when the record contains the
“slightest evidence” of self-defense, a “low standard that has been defined
in the self-defense context as ‘a hostile demonstration, which may be
reasonably regarded as placing the accused apparently in imminent danger
of losing h[is] life or sustaining great bodily harm.’” State v. King, 225 Ariz.
87, 90, ¶ 15 (2010) (quoting State v. Lujan, 136 Ariz. 102, 104 (1983))
(alteration added). See also State v. Carson, 243 Ariz. 463, 467, ¶ 19 (2018) (“If
the defendant shows evidence that he acted in response to a ‘hostile
demonstration,’ he is entitled to a self-defense jury instruction.”).

¶11 Riester has shown no error. The record does not support this
justification instruction, even when viewed in the light most favorable to
Riester. See State v. Hussain, 189 Ariz. 336, 337 (App. 1997) (the superior
court does not err in refusing to give an instruction that does not fit the facts
of the case). The evidence does not show that Riester “reasonably
regarded” three approaching unarmed, plainclothes officers as an
“imminent danger” to his life or safety. King, 225 Ariz. at 90, ¶ 15; A.R.S. §
13-421(A).

¶12 Riester counters with his subjective belief that the officers
were following him, arguing that an instruction was proper on that basis
alone. Riester ignores, however, that Arizona’s self-defense statutes “use
objective standards that depend on the beliefs of a ‘reasonable person’ in
the defendant’s circumstances rather than the defendant’s subjective beliefs.”
Carson, 243 Ariz. at 465, ¶ 9 (emphasis added); see also A.R.S. § 13-405(A)(2)
(using “reasonable person” standard).

CONCLUSION

¶13 We affirm Riester’s convictions and sentences.

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

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