State v. Bryars

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

PERRY JEROME BRYARS, Appellant.

No. 1 CA-CR 22-0504
FILED 11-30-2023

Appeal from the Superior Court in Maricopa County
No. CR2019-101287-001
The Honorable Rosa Mroz, Judge (Deceased)
The Honorable Jacki Ireland, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Tucson
By Diane L. Hunt
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Jennifer Roach
Counsel for Appellant
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MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Andrew M. Jacobs and Chief Judge David B. Gass joined.

B R O W N, Judge:

¶1 Perry Jerome Bryars appeals the superior court’s denial of his
motion for a new trial on six counts of felony endangerment. Because a
different panel of this court previously concluded that sufficient evidence
supports the endangerment convictions, and in any case, the jury’s verdicts
were not contrary to the weight of the evidence, we affirm.

BACKGROUND

¶2 A jury found Bryars guilty of six counts of felony
endangerment along with counts of aggravated assault, attempted sexual
assault, kidnapping, and attempted arson of an occupied structure, based
on evidence he assaulted his estranged wife, M.Y., and then tried to blow
up the house she was living in. In a prior appeal arising from the same
verdicts, Bryars challenged the sufficiency of evidence to support the
endangerment convictions, the designation of the attempted sexual assault
conviction as a domestic violence offense, and the superior court’s
consideration of aggravating factors in sentencing. This court affirmed,
rejecting Bryars’ primary argument that the superior court erred in denying
his motion for judgment of acquittal. State v. Bryars, 1 CA-CR 22-0135, 2023
WL 3477793, at *3, ¶ 14, *4, ¶ 21 (Ariz. App. May 16, 2023) (mem. decision).
Because Bryars’ present appeal involves only the endangerment counts, we
limit our factual discussion to the trial evidence on those charges.1

¶3 After Bryars repeatedly assaulted M.Y. and prevented her
from leaving the house, she managed to escape. When M.Y. returned to the
house about 30 minutes later, Bryars poked his head out of a garage
window, asked if she “smell[ed] the gas,” and said, “the house is going to
blow in five minutes.” M.Y. persuaded Bryars to come outside, and she

1 We view the evidence in the light most favorable to sustaining the
convictions, resolving all reasonable inferences against Bryars. See State v.
Harm, 236 Ariz. 402, 405, ¶ 3 n. 2 (App. 2015).

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called 911. When police officers arrived, they placed Bryars in handcuffs
after “a little standoff.”

¶4 After Bryars was taken into custody, a captain from the fire
department arrived and found the police officers “gathered around by the
garage,” “in close proximity . . . of the house.” The captain, who is also a
hazmat specialist, shut off the main gas line to the property and then
advised the officers to “clear the scene” and evacuate neighboring homes.
A few minutes later, the rest of the fire department’s hazmat team arrived
on the scene.

¶5 The hazmat team detected “small hits of gas” as they metered
the exterior of the “closed up” house.2 The team proceeded carefully,
taking about 45 minutes to allow time for the gas to dissipate. Once the
captain determined it was “appropriate” to enter the house, he “cracked the
front door,” saw “a lit candle on the floor,” and extinguished it. The team
entered the house, opening windows and doors as they metered, which
enabled the gas to keep dissipating. The team discovered that gas lines to
the oven and water heater were unconnected to those appliances and
turned to the on position. Although the oven was electric, there was a gas
hookup behind it.

¶6 The hazmat team determined there was a “1 to 2 percent gas”
concentration inside the house. At trial, the fire captain testified that the
flammable range for natural gas is five to fifteen percent. At that
concentration, gas is “highly explosive,” with the power of the explosion
dependent on the volume of gas when ignited. The captain explained that
an ignition source close to the ground—like the candle on the floor in the
house—could cause a “catastrophic” explosion that would “blow[] up the
entire home” and harm people outside it based on the volume of gas
present by the time of ignition. The captain surmised that such an explosion
would have occurred at the house absent the mitigation measures taken by
the fire department—unless the candle went out on its own before the gas
concentrated to a flammable level.3 A juror asked the captain how long it
would take, “on average” for a house of this size, “for the gas to build up to
cause an explosion by that candle on the floor.” The captain said he could

2 Gas will leak from a home through its eaves and other openings even
when all the doors and windows are shut.

3 The doorbell wires had been disconnected, and the fire captain
posited this could have been done to prevent an earlier ignition—higher up
in the space—that would cause less impact.

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not answer the question because of the number of variables involved
—including the “cubic feet of space,” the amount of furniture taking up
space, the size of the attic, and “the volume of flow of gas” entering the
house.

¶7 When Bryars was interviewed after his arrest, he admitted he
had experience with explosives. He also admitted cutting the doorbell
wires and lighting a candle. The jury found him guilty of the endangerment
counts as to M.Y. and the five police officers at the scene.

¶8 Bryars moved for a new trial under Arizona Rule of Criminal
Procedure (“Rule”) 24.1(c), asserting the verdict was “contrary to law or the
weight of the evidence.” Although the motion did not expressly refer to the
endangerment verdicts, Bryars argued the fire captain “was not clear as to
how this alleged arson was an actual threat.” The superior court denied the
motion, finding “there was substantial evidence to support the guilty
verdicts.” The court sentenced Bryars to a presumptive one-year prison
term on each endangerment count, to run concurrently with one another
and with his sentences on all other convictions except for the attempted
arson, which was ordered to run consecutively.

¶9 Bryars noticed an appeal from the judgment of guilt and
sentence on all convictions, but the notice did not expressly include the
denial of his motion for new trial. See A.R.S. § 13-4033(A) (enumerating
bases for appeal); State v. Wilson, 253 Ariz. 191, 194, ¶ 9 n.3 (App. 2022)
(finding jurisdiction lacking to consider defendant’s challenge to a denial of
a motion for new trial where the notice of appeal did not identify that
ruling). The superior court permitted Bryars to file a delayed notice of
appeal from the order denying his motion for new trial in accordance with
Rule 32.1(f), and we have jurisdiction over that appeal under A.R.S.
§ 12-120.21(A)(1).

DISCUSSION

¶10 We review the superior court’s denial of a motion for new trial
based on the weight of the evidence for an abuse of discretion. Harm, 236
Ariz. at 406, ¶ 11.

[I]n deciding a motion for new trial, a trial court may weigh
the evidence and make its own determination of the
credibility of the witnesses. If, after full consideration of the
case, the court is satisfied that the verdict was contrary to the
weight of the evidence, it may set the verdict aside, even if
substantial evidence supports it.

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State v. Fischer, 242 Ariz. 44, 49–50, ¶ 17 (2017). We do not reweigh the
evidence and will uphold the superior court’s ruling if, “resolving every
conflict in the evidence in support of the order, substantial evidence
supports the trial judge’s order.” Id. at 52, ¶ 28.

¶11 A defendant commits felony endangerment “by recklessly
endangering another person with a substantial risk of imminent death.”
A.R.S. § 13-1201. The superior court correctly instructed jurors they could
find Bryars guilty only if he “did in fact create a substantial risk of imminent
death.” See Rev. Ariz. Jury Instr. Stand. Crim. 12.01 (endangerment) (4th
ed. 2016). “Imminent,” which is not defined by statute, means “[a]bout to
occur” or “impending.” American Heritage Dictionary of the English
Language (5th ed. 2011); see also A.R.S. § 1-213 (requiring that words in a
statute “be construed according to the common and approved use of the
language” unless the word is “technical” or has “acquired a peculiar and
appropriate meaning in the law”); State v. Clow, 242 Ariz. 68, 71, ¶ 13 (App.
2017) (referring to an established dictionary to determine the ordinary
meaning of a word not statutorily defined).

¶12 Bryars argued in his prior appeal that absent evidence the gas
reached a combustible concentration when the endangerment victims were
present, the trial evidence did not establish that he placed them in actual,
substantial risk of imminent death. This court determined there was
sufficient evidence to support the verdicts. Bryars, 1 CA-CR 22-0135, at *3,
¶ 14.

¶13 Bryars’ present argument is essentially the same as the one
raised in his prior appeal. He contends the superior court should have
found the endangerment verdicts were contrary to the weight of the
evidence. Despite the technical distinction between the standards of review
for each claim, we are hard pressed to discern a substantive difference
among the issues on appeal. Much like our review of a denial of a motion
for new trial, we review a sufficiency-of-evidence claim by evaluating
whether substantial evidence supports the challenged decision while
refraining from reweighing the evidence and resolving all evidentiary
conflicts in favor of upholding the verdict. See State v. Pena, 235 Ariz. 277,
279, ¶ 5 (2014); State v. Barger, 167 Ariz. 563, 568 (App. 1990).

¶14 We recognize the similarity between the standards of review
does not apply when we review a grant of a new trial under Rule 24.1(c).
As explained by our supreme court, the trial judge has “broad discretion”
in that circumstance, based on the judge’s personal observation and
evaluation of the trial proceedings, “to find the verdict inconsistent with the

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evidence” even if that evidence is sufficient to support the verdict. Fischer,
242 Ariz. at 50, ¶ 21. But Bryars cites no decision in which an appellate
court has held that even though substantial evidence supported the verdict,
the superior court abused its discretion by denying a motion for a new trial
under Rule 24.1(c). Instead, he implicitly acknowledges the equivalence of
his prior and present claims by rearguing, in this appeal, that the
endangerment verdicts were unsupported by the evidence. Thus, to the
extent any meaningful differences exist in the standards of review between
evaluating sufficiency of the evidence and denial of a motion for a new trial,
those differences are not material to our analysis here.

¶15 Given the substantive similarity between Bryars’ current and
prior claims, we apply the “law of the case” to this appeal. The “law of the
case” doctrine is a rule of general application and establishes:

that the decision of an appellate court in a case is the law of
that case on the points presented throughout all the
subsequent proceedings in the case in both the trial and the
appellate courts, and no question necessarily involved and
decided on that appeal will be considered on a second appeal
or writ of error in the same case, provided the facts and issues
are substantially the same as those on which the first decision
rested, and, according to some authorities, provided the
decision is on the merits.

State v. King, 180 Ariz. 268, 278 (1994) (citation omitted).

¶16 We acknowledge the State has not argued law of the case;
instead, the State summarily concludes that this court’s decision in the prior
appeal—finding that the endangerment convictions are supported by
substantial evidence—requires affirming in this appeal. Nonetheless, “[w]e
are obliged to affirm the trial court’s ruling if the result was legally correct
for any reason.” State v. Perez, 141 Ariz. 459, 464 (1984). And though we
have discretion not to apply the doctrine to a decision that is not yet final,
see King, 240 Ariz. at 279, we see no basis to depart from it here, see
Powell-Cerkoney v. TCR-Montana Ranch Joint Venture, II, 176 Ariz. 275, 279
(App. 1993) (enumerating reasons not to apply the doctrine, including
manifest injustice or error; a “substantial change . . . in essential facts or
issues, in evidence, or in the applicable law”; or if the prior decision did not
decide the issue in question, did not address the merits, or is ambiguous).
Because this court previously concluded there was sufficient evidence for
the jury to find Bryars placed M.Y. and the officers in actual, substantial risk
of being imminently killed, we will not revisit that determination. See

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Bryars, 1 CA-CR 22-0135, at *2, ¶ 10 (explaining that evaluating the
sufficiency of evidence underlying a conviction turns on whether
substantial evidence supports the jury’s verdict).

¶17 Even assuming there are sufficient distinctions between
Bryars’ arguments in the first appeal and this one to merit an independent
review, we conclude there was substantial evidence to support the superior
court’s denial of his motion for new trial. Bryars, who admittedly had
experience with explosives, opened the gas lines and placed a lit candle in
the house at some point during the 30 minutes she was away. The fire
department shut off the main gas line to the house after she arrived back
home. And the gas then dissipated for 45 minutes before it was measured
at one to two percent concentration inside the house. The lack of evidence
showing the precise concentration of gas before the main line was shut off
did not preclude a reasonable inference that the concentration was high
enough to present an actual, substantial risk of imminent death. Thus, the
superior court did not abuse its discretion in concluding the endangerment
verdicts were not contrary to the weight of the evidence.

CONCLUSION

¶18 For these reasons, we affirm.

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

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