State v. Johnson

NOTICE: NOT FOR PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

STEPHEN CONRAD JOHNSON, Appellant.

No. 1 CA-CR 13-0417
FILED 06-19-2014

Appeal from the Superior Court in Mohave County
No. S8015CR201200356
The Honorable Derek C. Carlisle, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By William Scott Simon
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Randall M. Howe delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jon W. Thompson joined.
 STATE v. JOHNSON
Decision of the Court

H O W E, Presiding Judge:

¶1 Stephen Conrad Johnson appeals his convictions and
sentences for two counts of aggravated assault, class three felonies and
repetitive dangerous offenses; one count of misconduct involving
weapons, a class four felony and non-dangerous but repetitive offense;
and one count of disorderly conduct involving weapons, a class six felony,
and repetitive dangerous offense. Johnson challenges the trial court’s
ruling denying his requested instruction to the jury on self-defense as
justification to the charged crimes. Johnson also argues the court
reversibly erred by coercing the jury’s verdicts. Finally, Johnson contends
the court violated his due process rights by denying his request to
continue the aggravation and mitigation hearing so he could present
additional mitigation evidence. For the following reasons, we disagree
with Johnson’s assertions of error and therefore affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The trial evidence, viewed in the light most favorable to
sustaining the verdicts, 1 reveals the following. Shortly before 11:00 a.m.
on March 10, 2012, Johnson walked into a truck stop convenience store
wearing a pulled-up hoodie, sunglasses, and a blue cloth or bandana
covering his lower face. At trial, the evidence conflicted on whether
Johnson purchased a bag of candy and either demanded money from the
cashier saying that he had a gun, or said nothing about the gun and asked
for a pack of cigarettes. Whatever occurred, however, Johnson was
confronted by another employee JA, who tried to remove Johnson’s face
covering. Johnson resisted, pulled out a handgun and pointed it at JA’s
face. Other customers and employees in the store dropped to the floor and
scattered upon noticing the gun. A store employee called 911 when she
learned from the cashier that Johnson was purportedly attempting to rob
the store.

¶3 Johnson ran from the store followed by JA and TV, the
store’s maintenance manager. JA and TV chased Johnson not to capture
him, but to “keep him in sight” to assist police in locating him. At some
point during the foot chase, Johnson turned, pulled out his handgun, and
fired a “warning shot” before lowering the gun and pointing it at TV, who

1 See State v. Nelson, 214 Ariz. 196, 196 ¶ 2, 150 P.3d 769, 769 (App.
2007).

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 STATE v. JOHNSON
Decision of the Court

was approximately forty to fifty feet away. TV believed Johnson was
going to shoot him. A passer-by, DN, who was in his truck when he
noticed the chase, joined TV in pursuing Johnson and was next to TV
when Johnson fired the shot into the air. Police officers subsequently
intervened and apprehended Johnson.

¶4 The State charged Johnson with one count of attempted
armed robbery and three counts of aggravated assault, one each relating
to the victims JA, TV, and DN. The State further charged Johnson with one
count of misconduct involving weapons 2 and disorderly conduct
involving a weapon. Johnson testified that he covered his face in the store
because he had been receiving threats to this life, and he was afraid the
people who made the threats would recognize him in a public place.
Based on this testimony, Johnson also testified that he pointed the gun at
JA, someone he claimed not to recognize as a store employee, after she
tried to pull off his mask and he “realized I couldn’t get away from her,
[and] I was in fear for my life.”

¶5 After the close of evidence, Johnson requested a self-defense
jury instruction. The court denied the request, concluding that no trial
evidence supported the proposed instruction because, although the trial
evidence showed Johnson could have feared for his life based on the prior
threats he received, no evidence showed that “anybody involved in this
case . . . engaged in unlawful deadly physical force” against Johnson.
Immediately after the court’s ruling, defense counsel informed the court
the self-defense instruction was necessary “[b]ecause that’s what I’m
going to argue to the jury.” Counsel then argued during closing argument
that Johnson acted in self-defense, despite the trial court’s refusal to
instruct the jury on self-defense.

¶6 After the jury commenced deliberations, the forewoman
notified the court that the jury had reached verdicts on three of the counts,
but was unable to do so on the remaining three counts. With no objection
from either party, the court instructed the jurors on their apparent
impasse pursuant to Arizona Rule of Criminal Procedure 22.4. The jury
continued deliberating and approximately one hour later informed the
court that “one juror was not fully engaged in the deliberations and is not
open to discussion.” The jury also asked the court whether “self-defense

2 Johnson stipulated at trial that, because of prior felony convictions,
he was prohibited from possessing a firearm and his civil right to possess
or carry a gun or firearm had not been restored.

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Decision of the Court

[is] applicable in all issues in this case[,]” and “Are [JA’s] actions just
cause for the defendant to draw a gun? Can the issues of self-defense be
taken into consideration?” The forewoman addressed the court, and
stated: “I think if we had some clarification on those questions [regarding
self-defense] . . . perhaps we could [continue further deliberations and
reach a decision on the charges].” Based on the jury’s apparent confusion
over the applicability of self-defense to the case, the trial court, over
Johnson’s objection, instructed the jury on self-defense in a manner
consistent with Arizona law.

¶7 The jury subsequently returned verdicts finding Johnson
guilty of the aggravated assaults committed against JA and TV and guilty
of the misconduct involving weapons and disorderly conduct charges.
The jury could not reach a decision on the charges of attempted armed
robbery and aggravated assault against DN. At the hearing on mitigation
and the State’s alleged aggravating factors, Johnson presented the court
with a Rule 26.5 evaluation report prepared by Dr. S. as evidence of
mitigation, but requested a continuance so that his investigator could
interview Johnson at the jail and so that he could present further evidence
in the form of Dr. S.’s testimony. The court denied the request.

¶8 Upon considering and weighing the evidence of aggravation
and mitigation, the court sentenced Johnson to an aggravated prison term
of twenty years for his aggravated assault conviction relating to JA to be
served consecutive to the slightly aggravated sentence of thirteen years’
imprisonment for the aggravated assault conviction regarding TV. The
court imposed a mitigated sentence of eight years in prison for the
weapons misconduct conviction to run concurrently with the thirteen-year
aggravated assault conviction. Also to run concurrently with these two
sentences, the court imposed an aggravated term of four-and-a-half years’
imprisonment for the disorderly conduct conviction. Johnson timely
appealed.

DISCUSSION

I. Self-Defense Instruction

¶9 Johnson argues that the court erred in initially refusing to
give the requested self-defense instruction because the evidence
supported it. “The decision to refuse a jury instruction is within the trial
court’s discretion, and this court will not reverse it absent a clear abuse of
that discretion.” State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995).

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 STATE v. JOHNSON
Decision of the Court

¶10 A defendant is entitled to an instruction on self-defense if
the slightest evidence of justification exists for his act. State v. Buggs, 167
Ariz. 333, 335, 806 P.2d 1381, 1383 (App. 1990). The “slightest evidence” is
evidence which tends to prove a hostile demonstration which might be
reasonably regarded as placing the accused in imminent danger of losing
his life or sustaining great bodily harm. Id.; see also A.R.S. § 13-404(A)
(“[A] person is justified in threatening or using physical force against
another 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.”); A.R.S. § 13-
405(A) (1), (2).

¶11 The record does not indicate that anyone involved in this
case used or attempted to use unlawful deadly force against Johnson;
rather, the only evidence of threats to Johnson’s life were from people not
involved in this case, and those threats occurred before the March 10
incident. Accordingly, the trial court did not abuse its discretion in failing
to initially instruct the jury on self-defense. In any event, even if the court
did err in this respect, any prejudice to Johnson was cured when the court
instructed the jurors on self-defense after they indicated confusion on
whether self-defense applied to this case.

II. Coercion of Verdicts

¶12 Johnson argues that the court’s decision to instruct the jury
on self-defense coerced the verdicts. He claims that the instruction
“necessarily put improper pressure on the hold out juror . . . and likely
influenced that juror to change its position and reject self-defense on at
least one of the counts.”3

3 Although Johnson asserts the court’s ruling on this issue
established a Sixth Amendment violation, he provides no substantive
argument in support of this assertion. Arizona Rule of Civil Appellate
Procedure 13(a)(6) requires that an appellant’s opening brief “shall
contain the contentions of the appellant with respect to the issues
presented, and the reasons therefor, with citations to the authorities,
statutes and parts of the record relied on.” Failure to comply with the
rule’s requirements results in waiver of the argument. See State Farm Mut.
Auto. Ins. Co. v. Novak, 167 Ariz. 363, 370, 807 P.2d 531, 538 (App. 1990)
(court declined to consider matters for which party failed to comply with
Rule 13(a)(6)); Modular Sys., Inc. v. Naisbitt, 114 Ariz. 582, 587, 562 P.2d

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 STATE v. JOHNSON
Decision of the Court

¶13 We review the court’s decision to provide additional
instruction to the jury regarding self-defense for an abuse of discretion. See
State v. Kuhs, 223 Ariz. 376, 384 ¶ 42, 224 P.3d 192, 200 (2010) (“We review
a trial court’s response to jurors for an abuse of discretion.”). An abuse of
discretion occurs when “no reasonable judge would have reached the
same result under the circumstances.” State v. Armstrong, 208 Ariz. 345,
354 ¶ 40, 93 P.3d 1061, 1070 (2004). In determining whether the court
abused its discretion and coerced the jury, we consider “the actions of the
judge and the comments made to the jury based on the totality of the
circumstances and [we] attempt[] to determine if the independent
judgment of the jury was displaced.” State v. Huerstel, 206 Ariz. 93, 97 ¶ 5,
75 P.3d 698, 702 (2003).

¶14 Initially, the record does not support Johnson’s assertion that
the trial court interpreted the jury’s comment regarding the hold-out juror
“as proof of possible juror misconduct.” Further, Johnson’s contentions
regarding the purported coercive effect the self-defense instruction had on
the hold-out juror are speculative. Nothing in the record indicates that the
court knew that the hold-out juror was not properly deliberating because
he or she held some erroneous belief regarding the law of self-defense and
its applicability in this case. Nothing shows that the hold-out juror, or any
of the other jurors, did not properly understand the instruction.

¶15 In any event, Johnson’s argument regarding the coercive
effect the additional self-defense instruction had on the verdicts fails on
the merits. In conformance with the comment to Arizona Rule of Criminal
Procedure 22.4, the court expressly informed the jury in the impasse
instruction (that directly led to the jury’s request an hour later for
information on self-defense):

This instruction is offered to help you, not to force you to
reach a verdict. . . . We are merely being responsive to your
apparent need for help. . . . [Y]ou should not change your
belief concerning the weight or effect of the evidence solely
because of the opinions of your fellow jurors or for the mere
purpose of returning a verdict. . . . If you decide . . . [further

1080, 1085 (App. 1977) (issues deemed abandoned when party “failed to
state with any particularity why or how the trial court erred in making
these rulings and simply concludes that error was committed”). We
therefore deem this specific issue waived and do not address it.

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 STATE v. JOHNSON
Decision of the Court

assistance is necessary on] issues [of] . . . law . . . advise me
in writing of whether we can attempt to assist you . . . [in]
reach[ing] a verdict[.] . . . I do not wish or intend to force a
verdict.

¶16 This instruction clearly indicates that the court’s invitation to
further deliberate and request assistance if necessary did not lead to
coerced verdicts when the court provided the self-defense information
that the jury subsequently desired. See State v. Dunlap, 187 Ariz. 441, 465,
930 P.2d 518, 542 (App. 1996) (finding similar instruction “made it clear
that the trial court was not pressuring the jurors to sacrifice their
convictions to reach a verdict”).

¶17 Although the court here knew that one juror was holding
out, nothing in the record indicates that juror favored acquittal on all
counts or any particular count. And Arizona law does not recognize per se
coercion when the court knows the numerical split of a jury at impasse.
State v. Sabala, 189 Ariz. 416, 418-19, 943 P.2d 776, 778-79 (App. 1997).
Finally, the fact the jury deliberated for over two-and-a-half hours after
receiving the self-defense instruction indicates the instruction did not
coerce the verdicts. See id. at 420, 943 P.2d at 780 (thirty minutes of
deliberating after receiving additional instructions to assist a deadlocked
jury “suggest that the holdout juror changed position as a result of
receiving clarifying information not that he or she surrendered ‘honest
convictions’ due to overbearing pressure from the court.”).

¶18 Based on the foregoing, and considering the totality of the
circumstances – including the parties’ references to self-defense during
closing arguments, the resulting confusion to the jury regarding the
application of self-defense to this case, and the jury’s explicit assertion that
further instructions on self-defense would assist further deliberations—we
cannot conclude the self-defense instruction displaced “the independent
judgment of the jury[.]” Huerstel, 206 Ariz. at 97 ¶ 5, 75 P.3d at 702.
Accordingly, the court did not abuse its discretion in giving the
supplemental self-defense instruction. Indeed, under these circumstances,
the court had a “responsibility to give the jury the required guidance by a
lucid statement of the relevant legal criteria.” State v. Ramirez, 178 Ariz.
116, 126, 871 P.2d 237, 247 (1994) (quoting Des Jardins v. State, 551 P.2d 181,
190 (Alaska 1976), and Bollenbach v. United States, 326 U.S. 607, 612-13
(1946)).

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 STATE v. JOHNSON
Decision of the Court

III. Court’s Refusal to Continue Mitigation Hearing

¶19 Finally, Johnson argues that the trial court denied him his
due process right to present evidence by refusing to grant his request for a
continuance of the aggravation and mitigation hearing. We review for an
abuse of discretion. See State v. Amaya-Ruiz, 166 Ariz. 152, 164, 800 P.2d
1260, 1272 (1990) (“The granting of a continuance is within the discretion
of the trial court, and its decision will only be disturbed upon a showing
of a clear abuse of such discretion and prejudice to defendant.”).

¶20 Here, Johnson did not make an offer of proof about what the
additionally sought mitigation evidence would be. Thus, he cannot
challenge the court’s ruling “unless the substance [of the excluded
evidence] was apparent from the context.” See Ariz. R. Evid. 103(a)(2) (“A
party may claim error in a ruling to admit or exclude evidence only if the
error affects a substantial right of the party and . . . if the ruling excludes
evidence, a party informs the court of its substance by an offer of proof,
unless the substance was apparent from the context.”). Id. The substance
of the evidence Johnson sought in a continued hearing is not “apparent
from the context.” Additionally, Johnson’s request at the hearing was
untimely. Furthermore, the court did admit as mitigation evidence Dr. S.’s
report and evidence of Johnson’s abuse as a child, his history of substance
abuse and mental illness, and his remorse for his actions. As noted, the
court expressly considered the mitigation evidence that was presented.

¶21 On this record, we cannot conclude the trial court acted
outside its discretion in denying Johnson’s request for a continuance of the
mitigation hearing.

CONCLUSION

¶22 Johnson’s convictions and sentences are affirmed.

:gsh

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