Prosise v. Hon kottke/state

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

BOB DON PROSISE, Petitioner,

v.

THE HONORABLE CHRIS L KOTTKE, Judge of the SUPERIOR COURT
OF THE STATE OF ARIZONA, in and for the County of YAVAPAI,
Respondent Judge,

STATE OF ARIZONA, Real Party in Interest.

No. 1 CA-SA 20-0014
FILED 6-9-2020

Petition for Special Action from the Superior Court in Yavapai County
No. P1300CR201901161
The Honorable Christopher L. Kottke, Judge Pro Tempore

JURISDICTION ACCEPTED; RELIEF GRANTED

COUNSEL

Stanley M. Slonaker, Phoenix
By Stanley M. Slonaker
Counsel for Petitioner

Chino Valley Prosecutor’s Office, Chino Valley
By Cody W. Johnson, Daniel Woolston
Counsel for Real Party in Interest
 PROSISE v. HON KOTTKE/STATE
Opinion of the Court

OPINION

Judge David B. Gass delivered the opinion of the Court, in which Presiding
Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.

G A S S, Judge:

¶1 Petitioner Bob Don Prosise seeks special action relief from his
misdemeanor disorderly conduct conviction and sentence. In In re Julio L.,
the Arizona Supreme Court held a defendant may not be convicted of
disorderly conduct against an individual under A.R.S. § 13-2904.A.1 absent
proof the alleged victim’s peace was disturbed. See 197 Ariz. 1, 4, ¶ 13
(2000). In this opinion, this court rejects the State’s contention that the
Arizona Supreme Court eliminated that requirement in a case it issued less
than a year later. See State v. Miranda, 200 Ariz. 67, 69, ¶ 5 (2001)
(interpreting A.R.S. § 13-2904.A.6).

¶2 Consistent with Julio L., when the State charges a defendant
with “seriously disruptive behavior” against a specific individual
under § 13-2904.A.1, it must “prove that [the victim’s] peace was indeed
disturbed.” See 197 Ariz. at 3, ¶ 8. Because the State presented no proof
Prosise actually disturbed the alleged victim, this court accepts jurisdiction
of this special action and grants relief by vacating the conviction and
sentence.

FACTUAL AND PROCEDURAL HISTORY

¶3 The State charged Prosise with one count of “seriously
disruptive behavior” in violation of § 13-2904.A.1, and one count of
threatening or intimidating in violation of § 13-1202.A.1. The charges
stemmed from an interaction between Prosise and Levi Guffey, a Forest
Service supervisor, in the rear parking lot of the Chino Valley Ranger
Station in April 2018.

¶4 At the bench trial in Chino Valley Municipal Court, the
evidence showed Prosise was irate because the Forest Service had closed a
road as a fire-prevention measure. Prosise drove into the front parking lot
of the Ranger Station, exited his truck, and walked towards the front door.
Prosise stopped briefly at the front door without trying to enter the
building. He then returned to his truck, gesturing towards the front door as
he walked back, and drove out of the parking lot. Guffey heard Prosise

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shouting in the front parking lot even though Guffey was in the rear
parking lot, but he could not make out what Prosise was saying. Prosise
was in the front parking lot for approximately one minute.

¶5 Prosise then drove around to the rear parking lot, where he
confronted Guffey about the road closure. Prosise remained in his truck,
and Guffey stood on a raised porch behind a bannister. Guffey testified
Prosise was “irate,” used profanity, and spoke in an “elevated voice.”

¶6 Asked to specifically recount what Prosise said, Guffey could
only remember Prosise “threatening to shoot anyone who tried to stop him”
from reopening the road, but Prosise never identified the specific road or
when and where it was closed. Guffey conceded some residents have a
legitimate safety concern about public access to government roads during
fire season. The forty-second interaction “ended pretty shortly after that.”
Guffey then entered his office and telephoned his supervisor, who told him
to contact the Chino Valley Police Department. Guffey testified he
contacted his supervisor as a matter of “due diligence,” not because he
feared for his personal safety.

¶7 Guffey said his position with the Forest Service required him
to “deal with irate individuals quite often. Um, nine times out of ten it’s
something that I can’t exactly help them with anyway. So, I was used to
that.” Guffey could not “recall [Prosise] ever saying ‘you’ or threatening
directly at me.” He agreed Prosise’s statements were “directed at an
unknown person, at some unknown time, at an unknown location.”
Though Prosise used profanity and a raised voice, Guffey said Prosise
displayed no signs of physical aggression toward him. Guffey testified he
was not provoked to respond and he did not feel victimized.

¶8 Prosise did not testify. His only witness was a friend who had
been with him in his truck during the confrontation. The friend testified
Prosise did not threaten to shoot anyone, but only asked who had the
authority to close roads and then said, “one of these days somebody is
gonna get shot out there, over this.”

¶9 The municipal court found Prosise guilty on both counts. On
appeal, the superior court reversed Prosise’s threatening or intimidating
conviction for insufficient evidence but affirmed Prosise’s disorderly
conduct conviction. Prosise filed a timely petition for special action relief
from his remaining conviction.

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Opinion of the Court

SPECIAL ACTION JURISDICTION

¶10 Special action jurisdiction “is highly discretionary” but may
be appropriate “when no ‘equally plain, speedy, and adequate remedy by
appeal’ exists.” State ex rel. Romley v. Fields, 201 Ariz. 321, 323, ¶ 4 (App.
2001) (quoting Ariz. R.P. Spec. Act. 1(a)). Jurisdiction is also appropriate “in
matters of statewide importance, issues of first impression, cases involving
purely legal questions, or issues that are likely to arise again.” State ex rel.
Romley v. Martin, 203 Ariz. 46, 47, ¶ 4 (App. 2002).

¶11 “Because [Prosise] does not question the validity of the
statutes under which he was convicted, a special action is his only means to
seek relief.” See Guthrie v. Jones, 202 Ariz. 273, 274, ¶ 4 (App. 2002); see also
A.R.S. § 22-375. “Additionally, the petition raises legal questions of first
impression and statewide importance that could recur in other cases and
evade appellate review.” See Hiskett v. Lambert in & for County of Mohave, 247
Ariz. 432, 435, ¶ 10 (App. 2019). This court, therefore, exercises its discretion
and accepts jurisdiction.

ANALYSIS

I. When the State identifies a specific victim of seriously disruptive
behavior charged under A.R.S. § 13-2904.A.1, Julio L. controls the
analysis.

¶12 This court analyzes the statutory requirements de novo but
reviews the facts established at trial in the light most favorable to sustaining
the verdict. See State v. Rushing, 243 Ariz. 212, 216 n.2 (2017); State v. Cope, 241 Ariz. 323, 324, ¶ 5 (App. 2016).

¶13 Prosise was convicted of disorderly conduct under § 13-
2904.A.1, which provides in relevant part:

Disorderly conduct; classification

A. A person commits disorderly conduct if, with intent to
disturb the peace or quiet of a neighborhood, family or
person, or with knowledge of doing so, such person:

1. Engages in fighting, violent or seriously disruptive
behavior[.]

¶14 In Julio L., a high school student was adjudicated delinquent
for “seriously disruptive behavior” under § 13-2904.A.1, the same charge

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the State brought against Prosise here. See 197 Ariz. at 2, ¶ 4. The student
refused his school principal’s request to step outside a classroom, told the
principal “F––– you,” “then kicked a plastic molded chair next to him,
which tipped over but did not strike anyone.” Id. at ¶ 3.

¶15 The Arizona Supreme Court held that when one is charged
with disturbing the peace of a specific individual, “the [S]tate must prove
that [the individual’s] peace was indeed disturbed.” Id. at 3, ¶ 8.1 Further,
such conduct “does not become criminal under our current statutes unless
it disturbs the peace of someone by seriously disrupting something.” Id. at 4,
¶ 13 (emphasis added). Because the principal “was not assaulted, did not
feel threatened, was not provoked to physically retaliate, and did not feel
the need to protect herself,” the Arizona Supreme Court vacated the
student’s adjudication. Id.

¶16 Although Julio L. addressed the precise charge at issue here,
the State argues its reasoning does not apply because the accused was a
juvenile. Contrary to the State’s contention, Julio L. expressly referenced its
application to adult charges, saying “[o]ur laws do not make criminals out
of adults or juveniles just because they act offensively or rudely or lack
respect and control.” Id. (emphasis added).

¶17 More broadly, the State urges this court to disregard Julio L.
in favor of Miranda, in which Arizona’s Supreme Court addressed a
disorderly conduct conviction based on the discharge of a weapon. See 200
Ariz. at 68, ¶ 3; A.R.S. § 13-2904.A.6 (“[r]ecklessly handl[ing], display[ing]
or discharg[ing] a deadly weapon or dangerous instrument.”). The issue in
Miranda was whether disorderly conduct under § 13-2904.A.6 is a lesser-
included offense of aggravated assault with a deadly weapon or dangerous
instrument under §§ 13-1203.A.2 and 13-1204.A.2.

¶18 Earlier decisions by this court had held disorderly conduct
was not a lesser-included offense of aggravated assault because disorderly
conduct required proof the victim “was in fact at peace when the conduct
occurred”—an element not required of aggravated assault. See Miranda, 200
Ariz. at 68-69, ¶¶ 4-5 (citing State v. Cutright, 196 Ariz. 567 (App. 1999), and
In re Maricopa County Juvenile Action No. JV133051, 184 Ariz. 473 (App.
1995)). Miranda rejected that reasoning: “[T]he statute defining disorderly
conduct does not require that one actually disturb the peace of another

1 Julio L. said an objective standard is appropriate when a defendant is

charged under § 13-2904.A.1 with disturbing the peace of a neighborhood.
See 197 Ariz. at 3, ¶ 8 (distinguishing State v. Johnson, 112 Ariz. 383 (1975)).

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through certain acts. Rather, the statute requires the commission of certain
acts ‘with intent to disturb the peace . . . or with knowledge of doing so.’”
200 Ariz. at 69, ¶ 5 (quoting subsection 13-2904.A) (alteration in original).
The State argues this statement in Miranda effectively rescinded the rule
announced in Julio L. requiring the State to prove the defendant actually
disturbed the victim under § 13-2904.A.1.

¶19 When Miranda held the relevant paragraph “does not require
that one actually disturb the peace of another through certain acts,” it was
deciding only the issue before it—whether one could be convicted of
disturbing the peace of another without regard to the victim’s prior state of
mind. See 200 Ariz. at 69, ¶ 5. Miranda also expressly disapproved this
court’s decisions in Cutright and No. JV133051 but did not even mention
Julio L., its own decision of less than a year earlier. See id.

¶20 From the Arizona Supreme Court’s disapproval of Cutright
and No. JV133051, and its silence on Julio L., this court infers it did not intend
to upset or alter the principle announced in Julio L. And this court is “bound
by the decisions of the Arizona Supreme Court and [has] no authority to
overrule, modify, or disregard them.” State v. Thompson, 194 Ariz. 295, 298,
¶ 20 (App. 1999) (internal quotation omitted). Further, no one could
reasonably dispute the Miranda victims’ peace was in fact disturbed—the
defendant “emerg[ed] from behind a dumpster with a gun in his hand” and
fired multiple shots at them. See Miranda, 200 Ariz. at 69, ¶ 6.

II. The State did not produce sufficient evidence to support Prosise’s
conviction.

¶21 This court reviews sufficiency of the evidence claims de novo.
State v. Pena, 235 Ariz. 277, 279, ¶ 5 (2014). This court will resolve “any
conflicts in the evidence against the defendant” and views the facts in the
light most favorable to supporting the verdict. Id. This court will only
reverse if the verdict is not supported by substantial evidence. State v.
Tucker, 231 Ariz. 125, 138, ¶ 27 (App. 2012). “Substantial evidence is
evidence that reasonable persons could accept as sufficient to support a
guilty verdict beyond a reasonable doubt.” Pena, 235 Ariz. at 279, ¶ 5
(internal quotations omitted). The issue then 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.” State v. Tillmon, 222 Ariz. 452, 456, ¶ 18 (App. 2009).

¶22 Under Julio L., the State needed to show Guffey’s peace “was
indeed disturbed,” by “seriously disruptive behavior . . . of the same

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general nature as fighting or violence or conduct liable to provoke that
response in others and thus to threaten the continuation of some event,
function, or activity.” See 197 Ariz. at 3-4, ¶¶ 8, 11. The evidence presented
at trial failed to establish the elements.2 Tillmon, 222 Ariz. at 456, ¶ 18.

¶23 First, the facts are not in dispute. Guffey was not, in fact,
disturbed by Prosise’s angry words. Guffey is a Forest Service supervisor
with fourteen years’ experience who “deal[s] with irate individuals quite
often.” He testified Prosise did not threaten him and Prosise’s comments
were “vague” rather than personal. Guffey neither felt victimized nor was
he provoked to respond violently. As with the school principal in Julio L.,
nothing in this record allows a rational trier of fact to conclude Guffey’s
peace was disturbed by what Prosise said. See 197 Ariz. at 3, ¶¶ 8-9.

¶24 Second, Prosise’s behavior was not “seriously disruptive.”
Neither Guffey’s work duties nor the functioning of the Ranger Station
were “disturbed or affected by [Prosise’s] cursing or” yelling. See id. at 3,
¶ 8. Of note, the Ranger Station was closed at the time. The evidence shows
the encounter with Prosise lasted approximately forty seconds and the only
people present were Guffey, Prosise, and Prosise’s friend. Guffey did not
call his supervisor in fear, but rather as a matter of “due diligence.” He
reported the encounter to the police only at his supervisor’s direction.
Further, Guffey testified he was used to encountering irate individuals in
his job.

¶25 As in Julio L., this court “must keep in mind the difference
between civil and criminal conduct.” See id. at 4, ¶ 13. To the extent Prosise
had a legitimate concern about road closures, his method of expressing it
cannot be condoned and should not be disregarded. See id. To that point,
this opinion neither suggests Guffey was not justified in contacting his
supervisor and the police, nor concludes Prosise’s conduct—if directed to
another individual who might have interpreted it differently—would be
categorically insufficient to support a disorderly conduct conviction.

¶26 In summary, even viewing the facts of this case in a light most
favorable to sustaining the verdict, the State’s evidence failed to establish
Prosise engaged in disorderly conduct. See Tillmon, 222 Ariz. at 456, ¶ 18;
Julio L., 197 Ariz. at 3-4, ¶¶ 8, 11. In fact, the Arizona Supreme Court’s
summary of events in Julio L.is equally accurate here: “In the present case,
[Guffey] was not assaulted, did not feel threatened, was not provoked to

2 Because the State failed to meet its burden, this court need not address

Prosise’s First Amendment arguments.

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physically retaliate, and did not feel the need to protect [himself].” See id. at
¶ 13.

¶27 With no basis on which a rational trier of fact could find in the
State’s favor, this court must reverse Prosise’s conviction. See Tillmon, 222
Ariz. at 456, ¶ 18.

CONCLUSION

¶28 For the foregoing reasons, the superior court committed legal
error when it affirmed Prosise’s conviction for disorderly conduct.
Accordingly, this court accepts special action jurisdiction and vacates
Prosise’s conviction and sentence.

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

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