State v. De Berry

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

THEOPHILE JOHN DE BERRY, Appellant.

No. 1 CA-CR 21-0142
FILED 8-31-2023

Appeal from the Superior Court in Maricopa County
No. CR2019-157124-001
The Honorable Katherine M. Cooper, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jennifer Roach
Counsel for Appellant
 STATE v. DE BERRY
Decision of the Court

MEMORANDUM DECISION

Vice Chief Judge Randall M. Howe delivered the decision of the court, in
which Presiding Judge Jennifer B. Campbell and Judge James B. Morse Jr.
joined.

H O W E, Judge:

¶1 Theophile John De Berry appeals his convictions and
sentences for two counts of aggravated assault. For the reasons below, we
affirm.

FACTS AND PROCEDURAL HISTORY

¶2 This court reviews the facts in the light most favorable to
sustaining the jury’s verdicts, resolving all reasonable inferences against De
Berry. See State v. Felix, 237 Ariz. 280, 283 ¶ 2 (App. 2015). One evening, as
the victim waited at a bus stop, De Berry approached from a convenience
store nearby. The two appeared “about to fight” when De Berry shot the
victim once in the stomach. The victim sustained serious physical injuries.

¶3 The State charged De Berry with two counts of aggravated
assault, both dangerous class 3 felonies. Count 1 alleged that De Berry
intentionally, knowingly, or recklessly caused serious physical injury.
Count 2 alleged that De Berry used a firearm to cause physical injury. De
Berry requested a self-defense jury instruction. He claimed that the
evidence supported his requested self-defense instruction because (1) the
victim, before interacting with him, walked toward a light pole and
extended his arms; (2) he and the victim were near each other, they
appeared to “exchange something,” and they “looked like they were going
to fight”; (3) he did not approach the victim with his gun drawn, but drew
and fired the weapon only after interacting with the victim; and (4) the
victim’s brass knuckles were found on the ground near the spot where he
fell, which he later admitted to carrying for protection. The victim,
however, testified that he did not show or use the brass knuckles before De
Berry shot him. The trial court denied De Berry’s request for a self-defense
jury instruction.

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¶4 The jury found De Berry guilty as charged, and the trial court
imposed concurrent 7.5-year presumptive terms of imprisonment. De Berry
timely appeals.

DISCUSSION

I. The trial court did not err in denying De Berry’s self-defense jury
instruction.

¶5 De Berry contends that the trial court erred by denying his
requested self-defense instruction, arguing that the evidence established
that he shot the victim in response to the victim’s “hostile demonstration.”
“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)). “We view the evidence in the light most favorable to the party
requesting a jury instruction.” Id. at 108 ¶ 2.

¶6 Under A.R.S. § 13–404, “[a] person is justified in using
physical force against another, and does not commit a crime, ‘when and to
the extent a reasonable person would believe that physical force is
immediately necessary to protect himself against the other’s use or
attempted use of unlawful physical force.’” State v. Carson, 243 Ariz. 463,
465 ¶ 9 (2018) (quoting A.R.S. § 13–404(A)). “Similarly, deadly force is
justifiably used if § 13–404 is satisfied and ‘a reasonable person would
believe that deadly physical force is immediately necessary to protect
himself against the other’s use or attempted use of unlawful deadly
physical force.’” Id. (quoting A.R.S. § 13–405(A)) (emphasis added).

¶7 Here, the court did not err. De Berry acknowledges that no
witnesses saw nor did the video cameras record the victim display brass
knuckles and points to nothing in the record that shows the victim used or
attempted to use physical force—let alone deadly physical force—against
him. Cf. State v. King, 225 Ariz. 87, 90 ¶ 16 (2010) (holding that a full two-
liter water bottle thrown at defendant’s head “suffices to meet the ‘slightest
evidence’ standard that supports the giving of a self-defense instruction”).
Indeed, the victim testified that he did not pull out his brass knuckles before
being shot and no other evidence shows that the victim attempted to or
used physical force against De Berry.

¶8 De Berry, however, challenges the victim’s testimony that he
did not use or show the brass knuckles before De Berry shot him. But this

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court does not judge a witness’s credibility. See State v. Soto-Fong, 187 Ariz.
186, 200 (1996) (when reviewing witness testimony, this court does not
determine credibility). Even so, viewing the evidence in the light most
favorable to De Berry, the mere presence of brass knuckles does not
reasonably or clearly show that the victim used or attempted to use them to
inflict physical force on De Berry. See State v. Vassell, 238 Ariz. 281, 284 ¶ 9
(App. 2015) (noting that a justification instruction is not required unless the
evidence “reasonably and clearly” supports it); see also State v. Hussain, 189
Ariz. 336, 337 (App. 1997) (“A trial court . . . does not err in refusing to give
a jury instruction that . . . does not fit the facts of the particular case.”). Thus,
the trial court did not err in denying the jury instruction.

II. De Berry’s convictions do not violate the constitutional
prohibition against double jeopardy.

¶9 De Berry argues that his convictions violate the constitutional
prohibition against double jeopardy. Specifically, he contends that
aggravated assault is an alternative-means offense, and therefore the
charges are multiplicitous. Because De Berry did not raise this issue before
the trial court, we review only for fundamental error. State v. Johnson, 247
Ariz. 166, 185 ¶ 41 (2019).

¶10 Under A.R.S. § 13–1204(A),

A person commits aggravated assault if the person commits
assault as prescribed by § 13–1203 under any of the following
circumstances:

1. If the person causes serious physical injury to another.

2. If the person uses a deadly weapon or dangerous
instrument.

Under A.R.S. § 13–1203(A)(1), “A person commits assault by [i]ntentionally,
knowingly or recklessly causing any physical injury to another person.”

¶11 Statutory interpretation requires first looking to the language
of the statute. State v. Luviano, 530 P.3d 388, 391 ¶ 10 (Ariz. 2023) (“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.”) (internal quotation marks omitted). A statute is ambiguous if
reasonably susceptible to differing interpretations. Id. If a statute is
ambiguous, we “consult secondary interpretation methods, such as the

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statute’s subject matter, historical background, effect and consequences,
and spirit and purpose.” Id. (internal quotation marks omitted).

¶12 The parties agree that the aggravated assault statute is
ambiguous. Indeed, A.R.S. § 13–1204(A) may reasonably be read as setting
forth alternative means of committing an offense because it provides that
aggravated assault occurs “under any of the following circumstances” and
includes causing serious physical injury to another or using a deadly
weapon or dangerous instrument. Each subsection may be interpreted as
an alternative means of committing the same offense of aggravated assault.
But A.R.S. § 13–1204(A) may also reasonably be read as providing for
separate offenses because it describes 11 different circumstances that lead
to the commission of an aggravated assault. Because the statute may
reasonably be interpreted as setting forth both alternative means and
separate offenses, the statute is ambiguous, and we must resort to
secondary interpretation methods. See Luviano, 530 P.3d at 391-92 ¶ 11
(concluding “that A.R.S. § 13-2508 is ambiguous because it may be
reasonably read as setting for either a single unified offense or distinct
crimes”).

¶13 Using those methods, we conclude that A.R.S. § 13–1204(A)
sets forth separate offenses. In analyzing double-jeopardy claims, the court
must examine the elements of each crime for which the individual was
convicted and sentenced to ensure that each offense contains an element
not present in the other. State v. Eagle, 196 Ariz. 188, 190 ¶ 6 (2000). “[T]he
test to be applied to determine whether there are two offenses or only one[]
is whether each provision requires proof of a fact which the other does not.”
Blockburger v. United States, 284 U.S. 299, 304 (1932). Subsection (A) lists 11
different ways of committing an assault. For example, (A)(1) and (A)(3)
concern different types of injuries. Compare A.R.S. § 13–1204(A)(1) (“If the
person causes serious physical injury to another”), with A.R.S. § 13–
1204(A)(3) (“If the person commits the assault by any means of force that
causes temporary but substantial disfigurement.”). Meanwhile, subsections
(A)(2) and (A)(11) concern “deadly weapon[s].” See A.R.S. § 13–1204(A)(2),
(11). Further, subsections (A)(6) and (A)(8) concern the victim’s
characteristics. Compare A.R.S. § 13–1204(A)(6) (victim is a minor under 15
years of age), with A.R.S. § 13–1204(A)(8) (victim includes a firefighter,
teacher, healthcare worker, prosecutor, public defender, and judicial
officer).

¶14 Thus, looking at the entire text of A.R.S. § 13–1204, each
subsection requires a different element from its counterpart, thereby
indicating that they are distinct and separate crimes. See State v. Freeney, 223

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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.”); see also Desmond
v. Super. Ct. of Maricopa Cnty., 161 Ariz. 522, 527 (1989) (holding that two
subsections of the driving-under-the-influence statute were different
crimes because one proscribed driving under the influence of liquor while
the other proscribed driving over a certain blood alcohol level).

¶15 Further, if a statute includes “alternatives carry[ing] different
punishments,” the alternatives describe “elements” of an offense and point
to different crimes. Mathis v. United States, 579 U.S. 500, 518 (2016). Here, the
penalties under A.R.S. § 13–1204(A) vary. See A.R.S. § 13–1204(E)
(providing punishments for class 3, 4, 5, or 6 felonies). Although assault
under (A)(1), (A)(2), (A)(9)(a), and (A)(11) are all class 3 felonies, they are
not so similar that proving the facts of an assault under one subsection
would essentially prove the other. Compare A.R.S. § 13–1204(A)(1) (person
commits assault by causing “serious physical injury to another”), with
A.R.S. § 13–1204(A)(2) (person commits assault by using “a deadly weapon
or dangerous instrument”), with A.R.S. § 13–1204(A)(9)(a) (person commits
assault by taking or attempting to take an officer’s firearm), with A.R.S. §
13–1204(A)(11) (person commits assault if uses a “simulated deadly
weapon”).

¶16 Similarly, the facts needed to establish a class 6 felony under
different subsections are not naturally connected. Compare A.R.S.
§ 13–1204(A)(4) (“victim is bound or otherwise physically restrained”), with
A.R.S. § 13–1204(A)(5) (“entering the private home of another”), with A.R.S.
§ 13–1204(A)(6) (“person is [18] years of age” and victim is under 15 years
of age), with A.R.S. § 13–1204(A)(7) (“in violation of an order of protection”).
Thus, as a whole, the structure of the statute indicates that each subsection
sets forth a separate offense, not an alternative means of committing the
general offense of aggravated assault. The charges in this case, therefore,
are not multiplicitous. State v. Brown, 217 Ariz. 617, 620 ¶ 7 (App. 2008)
(“Multiplicity occurs when an indictment charges a single offense in
multiple counts . . . and raises the potential for multiple punishments,
which implicates double jeopardy.”). Because A.R.S. § 12–1304(A) sets forth
separate offenses, no error occurred.

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CONCLUSION

¶17 For the reasons stated, De Berry’s convictions and sentences
are affirmed.

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

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