State v. Lopez

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JUAN FRANCISCO LOPEZ, Appellant.

No. 1 CA-CR 12-0726

FILED 5-1-2014

Appeal from the Superior Court in Maricopa County

No. CR2011-153086-001

The Honorable Daniel G. Martin, Judge

REVERSED AND REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Andrew Reilly

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Stephen J. Whelihan

Counsel for Appellant

STATE v. LOPEZ

Opinion of the Court

OPINION

Presiding Judge Kent E. Cattani delivered the opinion of the Court, in

which Judge Margaret H. Downie and Judge Michael J. Brown joined.

C A T T A N I, Judge:

¶1 Juan Francisco Lopez appeals his conviction and sentence

for arson of an occupied structure. Lopez asserts that the trial court (1)

incorrectly instructed the jurors that, under a “transferred knowledge”

theory, Lopez’s mental state in knowingly burning a tarp could establish

that he knowingly burned an occupied structure, and (2) improperly

excluded two types of admissible evidence. For reasons that follow, we

conclude that the trial court improperly instructed the jurors and that the

error was not harmless. Accordingly, we reverse Lopez’s conviction and

remand for further proceedings consistent with this decision. We further

address the evidentiary issues Lopez has raised because they are likely to

reoccur on remand.

FACTS AND PROCEDURAL HISTORY

¶2 Lopez lived in a townhome owned by D.J., who handled

Lopez’s finances and was the payee for his Social Security disability

checks. D.J. was at a barbecue with her one-year-old daughter when she

received a call from Lopez, who was at home with D.J.’s other two

children. Lopez had argued with his ex-wife earlier that day and had

been drinking. Lopez was upset, and he told D.J. that the house was open

and unlocked. Worried, D.J. returned home to find Lopez in the driveway

yelling.

¶3 Lopez argued with D.J. and at some point told her he was

going to burn down the house. D.J. did not think he was serious and went

inside, but shortly thereafter looked through the door and saw flames.

Using a cigarette lighter, Lopez had lit on fire a tarp that hung down from

a beam along the outside of the carport. After the tarp began burning,

Lopez grabbed a nearby garden hose and put out the fire. By that time,

the fire had burned approximately half of the tarp and had charred the

stucco along the outside of the carport beam.

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STATE v. LOPEZ

Opinion of the Court

¶4 Shortly after Lopez put out the fire, D.J.’s fiancé came to the

house and began to argue and fight with Lopez. Police officers responded

to a call from a neighbor reporting the fight, and when they arrived at the

house, they became aware that there had been a fire and contacted the

Phoenix Fire Department.

¶5 A fire investigator interviewed Lopez, who acknowledged

lighting the tarp on fire and indicated that it went up in flames much

faster than he thought it would. Lopez stated that he had started the fire

because D.J. had yelled at him for calling her, and that he decided to “give

her a reason to yell.”

¶6 The State indicted Lopez on one count of arson of an

occupied structure, a class 2 felony, and two counts of endangerment,

each a class 6 felony. The State alleged three prior felony convictions and

three aggravating circumstances. Prior to trial, the court dismissed one of

the endangerment counts at the State’s request.

¶7 At trial, after considering the evidence detailed above and

being instructed on the elements of the offenses and on the theory of

“transferred knowledge,” the jury convicted Lopez of arson of an

occupied structure, but acquitted him of endangerment. The jury found

that the State had not established two of the alleged aggravating factors,

and was unable to reach a verdict on the third.

¶8 The trial court found that Lopez had three prior felony

convictions and sentenced him as a repetitive offender to a mitigated 12-

year prison term. Lopez timely appealed, and we have jurisdiction under

Article 6, Section 9, of the Arizona Constitution and Arizona Revised

Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033. 1

DISCUSSION

I. Instruction on Transferred Knowledge.

¶9 Lopez argues that the trial court erred by instructing the jury

regarding “transferred knowledge,” and that the error was not harmless.

We conclude that the instruction improperly eliminated from

consideration an element of the charged arson offense, and that the error

thus requires that Lopez’s conviction be vacated.

1 Absent material revisions after the relevant date, we cite a statute’s

current version.

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STATE v. LOPEZ

Opinion of the Court

¶10 We review de novo whether a jury instruction correctly states

the law. State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997). If

the defendant timely objected to an instruction that incorrectly states the

law, we conduct a harmless error analysis. State v. Gomez, 211 Ariz. 494,

499–500, ¶¶ 24–26, 123 P.3d 1131, 1136–37 (2005).

¶11 Arson of an occupied structure is defined in A.R.S. § 13-

1704(A):

A person commits arson of an occupied structure by

knowingly and unlawfully damaging an occupied structure

by knowingly causing a fire or explosion.

¶12 In addition to instructing on the elements of this offense, the

trial court defined the culpable mental state of “knowingly” 2 and gave the

following instruction concerning “transferred knowledge”:

You may find that the defendant acted knowingly as to [D.J.]

on the charge of arson of an occupied structure, arson of a

structure, or arson of property if you find transferred

knowledge. Transferred knowledge is established if the

actual result of the defendant’s action differs from that

which the defendant knew or contemplated, only in the

respect that: One, a different person or a different property is

injured or affected; or two, the injury or harm known or

contemplated would have been more serious or extensive

than that caused.

The court gave the transferred knowledge instruction at the State’s request

over Lopez’s objection, adapting the instruction from the Revised Arizona

Jury Instruction (“RAJI”) pertaining to “transferred intent.” See RAJI Stat.

Crim. 2.024.

¶13 The concept of a transferred mental state has long been

recognized in Arizona and applies, for example, in the “bad aim” situation

in which a defendant intends to hit one party but misses and accidentally

hits another. Under that scenario, the defendant’s felonious intent toward

2 The court instructed the jurors that “knowingly” means “that a

person is aware or believes that his or her conduct is of that nature or that

the circumstance exists. It does not require any knowledge of the

unlawfulness of the act or omission.”

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STATE v. LOPEZ

Opinion of the Court

the person he missed is transferred and deemed to apply to the person he

unintentionally hit. See State v. Cantua-Ramirez, 149 Ariz. 377, 379, 718

P.2d 1030, 1032 (App. 1986).

¶14 A.R.S. § 13-203(B)(1) codifies the transferred mental state

concept for “intentional” crimes:

If intentionally causing a particular result is an element of an

offense, and the actual result is not within the intention or

contemplation of the person, that element is established if:

The actual result differs from that intended or contemplated

only in the respect that a different person or different

property is injured or affected or that the injury or harm

intended or contemplated would have been more serious or

extensive than that caused[.]

Section 13-203(C) similarly provides for a transferred culpable mental

state with respect to “reckless” or “negligent” conduct. There is no

comparable statutory provision, however, referencing the culpable mental

state of “knowingly.”

¶15 Although there is not a statutory basis for a transferred

mental state instruction regarding “knowing” conduct, in State v. Amaya-

Ruiz, 166 Ariz. 152, 173, 800 P.2d 1260, 1281 (1990), the Arizona Supreme

Court suggested that such an instruction might be appropriate in certain

instances. The court ruled however, that some criminal statutes are

worded in such a way as to preclude a transferred intent instruction,

because the instruction would improperly permit jurors to convict

without finding every element of the offense. Id. (reversing manslaughter

conviction for knowingly or recklessly causing the death of an unborn

child by any physical injury to the mother based on transferred intent

instruction that allowed conviction based only on intent toward mother,

“without finding the mental state toward the unborn child required by

[A.R.S. § 13-1103(A)(5)]”).

¶16 Based on the reasoning in Amaya-Ruiz, a transferred intent

mental state instruction is similarly improper in a case involving a charge

of arson of an occupied structure. As noted previously, arson of an

occupied structure (a class 2 felony) requires a showing that the defendant

knowingly damaged an occupied structure by knowingly causing a fire or

explosion. In contrast, arson of a structure (a class 4 felony) and arson of

property (a class 4 or 5 felony or a class 1 misdemeanor depending on the

value of the property) require only a showing that the defendant

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STATE v. LOPEZ

Opinion of the Court

“knowingly and unlawfully damag[ed] a structure or property by

knowingly causing a fire or explosion.” A.R.S. § 13-1703(A). The

transferred intent instruction here improperly permitted the jurors to

convict without finding every element of the charged offense; they were

instructed that they could convict Lopez of knowingly burning an

occupied structure simply because he knowingly burned property (the

tarp).

¶17 The State asserts that any error in giving the transferred

knowledge instruction was harmless. We conclude otherwise, however,

because although the State presented evidence that the tarp was attached

to the house (which would mean that transferred intent regarding the tarp

was irrelevant), the prosecutor specifically argued that Lopez’s mental

state in knowingly burning the tarp was dispositive regardless whether

the tarp was part of the house:

[E]ven if you want to consider [the argument that] the tarp is

anything other than part of the house, the fact that he set the

tarp on fire and that burned the house, he is still acting

knowingly. By setting the tarp on fire, his knowledge of

setting the tarp on fire transfers to the house being burned.

And this is the bottom line. If you knowingly started any

fire, then he knowingly damaged the house. And that

means knowingly has been proven.

Under the circumstances presented, we cannot say that “the guilty verdict

actually rendered in this trial was surely unattributable to the error.” State

v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993) (emphasis and

citation omitted). Accordingly, we vacate Lopez’s conviction and

sentence and remand for a new trial.

¶18 Although our ruling renders Lopez’s remaining arguments

moot, we nonetheless address them because they will be relevant on

remand.

II. Preclusion of Evidence.

¶19 Lopez argues that the trial court erred by precluding

evidence of his brain injury and of the fight he was involved in with D.J.’s

fiancé following the fire incident. We review a trial court’s rulings on the

admissibility of evidence for abuse of discretion. State v. Davolt, 207 Ariz.

191, 208, ¶ 60, 84 P.3d 456, 473 (2004). We review de novo, however,

questions of law relating to admissibility. State v. Moran, 151 Ariz. 378,

381, 728 P.2d 248, 251 (1986).

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STATE v. LOPEZ

Opinion of the Court

A. Evidence of Brain Injury.

¶20 The trial court granted the State’s motion in limine to

preclude Lopez from introducing evidence of his 2001 brain injury and

resulting mental disability, finding that, under State v. Mott, 187 Ariz. 536,

539–45, 931 P.2d 1046, 1049–55 (1997), such information was inadmissible

“diminished capacity” evidence. Lopez contends that the evidence should

have been admitted because it “was relevant to a trait of character that

was pertinent to his defense, i.e., the trait of acting impulsively under

stress without being aware of the consequences of his actions.”

¶21 Arizona does not recognize a “diminished capacity” defense,

and (absent a guilty except insane defense) a defendant may not present

evidence of a mental disease or defect alleged to have rendered him

incapable of forming the requisite mens rea. Id. Although Lopez

characterizes the proposed evidence regarding his brain injury and mental

condition as character trait evidence rebutting a specified mental state for

the charged offense, the trial court correctly ruled that the proposed

evidence was relevant only to Lopez’s “diminished capacity to appreciate

his conduct.” See State v. Buot, 232 Ariz. 432, 436, ¶ 20, 306 P.3d 89, 93

(App. 2013) (holding that “a defendant charged with second-degree

murder may not offer evidence that due to a character trait of impulsivity,

he did not act knowingly or recklessly because he lacked the power to

control his actions”).

¶22 Lopez’s reliance on State v. Christensen, 129 Ariz. 32, 628 P.2d

580 (1981), is misplaced. In Christensen, the Arizona Supreme Court held

that expert psychiatric testimony on the subject of the defendant’s

character trait of acting impulsively is admissible to rebut a charge of first

degree, premeditated murder. Id. at 34–35, 628 P.2d at 582–83. That

holding has been limited, however, to cases involving evidence offered to

rebut premeditation. See Buot, 232 Ariz. at 436, ¶ 18, 306 P.3d at 93 (noting

that “we do not understand Christensen to require a court to admit

character trait evidence of impulsivity to prove a defendant did not act

knowingly or recklessly”).

¶23 Finally, Lopez asserts that Arizona’s rule precluding

evidence of diminished capacity to negate the culpable mental state for an

offense violates the Due Process Clause of the United States Constitution.

But the United States Supreme Court has specifically held that exclusion

of this type of evidence does not violate principles of due process. Clark v.

Arizona, 548 U.S. 735, 779 (2006). Accordingly, the trial court did not err

by precluding evidence of Lopez’s brain injury.

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STATE v. LOPEZ

Opinion of the Court

B. Extrinsic Evidence of Lopez’s Fight with D.J.’s Fiancé.

¶24 Lopez argues that the trial court erred by precluding

evidence concerning his fight with D.J.’s fiancé after the fire. Lopez

sought in particular to introduce evidence that D.J.’s fiancé started the

fight. Lopez claims this evidence was relevant to whether D.J. lied when

she told the police that Lopez started the fight, and by extension, that D.J.

lied when she reported that Lopez threatened to burn down the house

before lighting the tarp on fire.

¶25 The trial court did not err by precluding this evidence. The

issue of who started the fight between Lopez and D.J.’s fiancé was a

collateral matter that was not relevant to Lopez’s conduct in setting the

tarp on fire before the fight. Although a witness’s credibility is always

relevant, “[i]t is well settled that when impeaching a witness regarding an

inconsistent fact collateral to the trial issues, the impeaching party is

bound by the witness’ answer and cannot produce extrinsic evidence to

contradict the witness.” State v. Hill, 174 Ariz. 313, 325, 848 P.2d 1375,

1387 (1993). “Evidence is collateral if it could not properly be offered for

any purpose independent of the contradiction.” Id.; see also Ariz. R. Evid.

608(b) (providing that attacks on a witness’s credibility based on specific

instances of conduct, other than conviction of a crime, may not be proved

by extrinsic evidence). “The nearly universal rule proscribing

impeachment on collateral matters is based on the questionable utility of

such evidence and its potential for confusing or distracting the trier of

fact.” State v. Munguia, 137 Ariz. 69, 71, 668 P.2d 912, 914 (App. 1983).

¶26 Because the question of who started the fight between Lopez

and D.J.’s fiancé was collateral to the issue of Lopez’s guilt, the trial court

did not abuse its discretion by precluding evidence regarding the fight.

CONCLUSION

¶27 For the reasons stated, we reverse Lopez’s conviction and

sentence and remand for further proceedings consistent with this decision.

:MJT

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