IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,
v.
SAMKEITA JAHVEH JURDEN,
Appellant.
No. CR-15-0236-PR
Filed July 1, 2016
Appeal from the Superior Court in Maricopa County
The Honorable Brian Kaiser, Commissioner
No. CR-2012-150667
AFFIRMED IN PART, VACATED IN PART
Opinion of the Court of Appeals, Division One
237 Ariz. 423, 352 P.3d 455 (App. 2015)
VACATED
COUNSEL:
Mark Brnovich, Arizona Attorney General, John R. Lopez IV, Solicitor
General, Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section,
Christopher M. DeRose (argued), Special Assistant Attorney General for
Appeals, Criminal Appeals Section, Phoenix, Attorneys for State of Arizona
Maricopa County Public Defender’s Office, Jeffrey L. Force (argued),
Deputy Public Defender, Phoenix, Attorneys for Samkeita Jahveh Jurden
STATE V. JURDEN
Opinion of the Court
JUSTICE BOLICK authored the opinion of the Court, in which CHIEF
JUSTICE BALES, VICE CHIEF JUSTICE PELANDER, and JUSTICES
BRUTINEL and TIMMER joined.
JUSTICE BOLICK, opinion of the Court:
¶1 We granted review to determine whether multiple
convictions under Arizona’s resisting arrest statute, A.R.S. § 13-2508, that
arise from a single, uninterrupted course of conduct constitute multiple
convictions for the same offense in violation of the Double Jeopardy Clause.
We hold that, regardless of the number of officers involved, § 13-2508 only
permits one conviction when a defendant resists an arrest in the course of a
single, continuous event.
I. FACTUAL AND PROCEDURAL HISTORY
¶2 In September 2012, Samkeita Jahveh Jurden walked into a
department store shirtless, shoeless, and with an unleashed dog. The
store’s security guard contacted the police after Jurden refused to leave.
Jurden remained even after two officers arrived and also asked him to
leave. When the officers attempted to arrest Jurden, he resisted by biting
and kicking one officer and flailing and pulling his arms away from the
other. The officers struggled with Jurden for nearly four minutes before
subduing and handcuffing him. The resistance and arrest formed one,
uninterrupted course of conduct.
¶3 A grand jury indicted Jurden on two counts of aggravated
assault, one count of criminal trespass, and two counts of resisting arrest
under A.R.S. § 13-2508(A)(1)—one for each officer resisted. A jury found
Jurden guilty on all charges except one aggravated assault count.
¶4 The trial court sentenced Jurden to concurrent rather than
consecutive terms of imprisonment. In accordance with A.R.S. § 13-711(A),
the trial judge explained his reasoning:
[A]ll the more when I watch the video in this case, it’s all one
incident and it starts and it just continues. . . . Perhaps, if there
were some lengthy delay between one event and another,
there might be a better justification of the idea of consecutive
sentences. But this all starts and ends in just one big melee,
really, and so the idea of consecutive sentences here doesn’t
seem appropriate to me, under the circumstances.
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STATE V. JURDEN
Opinion of the Court
¶5 On appeal, Jurden argued that his two convictions under § 13-
2508 for resisting arrest arose from a single offense and, therefore, his
second conviction arose from the same offense and violated the Double
Jeopardy Clause. In a split decision, the court of appeals agreed and
vacated one of the convictions. State v. Jurden, 237 Ariz. 423, 429 ¶ 21, 352
P.3d 455, 461 (App. 2015).
¶6 We granted review because whether § 13-2508 authorizes
multiple convictions and punishments for resisting arrest in one,
uninterrupted course of conduct that involves more than one officer
presents a recurring issue of statewide importance. We have jurisdiction
pursuant to article 6, section 5(3) of the Arizona Constitution and A.R.S.
§ 12-120.24.
II. DISCUSSION
¶7 This case presents an issue of statutory interpretation, which
we review de novo. Lubin v. Thomas, 213 Ariz. 496, 498 ¶ 13, 144 P.3d 510,
512 (2006). However, it also implicates the Double Jeopardy Clause of the
Fifth Amendment to the United States Constitution. Because Jurden failed
to raise the double jeopardy objection in the trial court, we review only for
fundamental error. See State v. Miller, 234 Ariz. 31, 36 ¶ 7, 316 P.3d 1219,
1224 (2013); State v. Bolton, 182 Ariz. 290, 297, 896 P.2d 830, 837 (1995). A
conviction or sentence that violates the Double Jeopardy Clause constitutes
fundamental error. State v. McGill, 213 Ariz. 147, 153 ¶ 21, 140 P.3d 930, 936
(2006).
¶8 The parties disagree whether a defendant may be convicted
under § 13-2508 of multiple counts of resisting arrest resulting from a single,
continuous act of resistance involving multiple officers. Section 13-2508
states:
A. A person commits resisting arrest by intentionally
preventing or attempting to prevent a person reasonably
known to him to be a peace officer, acting under color of such
peace officer’s official authority, from effecting an arrest by:
1. Using or threatening to use physical force against the
peace officer or another.
2. Using any other means creating a substantial risk of
causing physical injury to the peace officer or another.
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STATE V. JURDEN
Opinion of the Court
3. Engaging in passive resistance.
B. Resisting arrest pursuant to subsection A, paragraph 1 or 2
of this section is a class 6 felony. Resisting arrest pursuant to
subsection A, paragraph 3 of this section is a class 1
misdemeanor.
C. For the purposes of this section, “passive resistance” means
a nonviolent physical act or failure to act that is intended to
impede, hinder or delay the effecting of an arrest.
¶9 The State argues that § 13-2508(A)(1) is victim-directed,
meaning a separate offense is committed for each peace officer against
whom physical force is directed. Jurden argues that the statute is event-
directed, so that the single, continuous act of resisting arrest constitutes one
offense, regardless of how many officers were resisted. If Jurden is correct,
then subjecting him to conviction and punishment for two counts of
resisting arrest violates the prohibition against double jeopardy.
¶10 The Double Jeopardy Clause protects against multiple
punishments for the same offense. State v. Eagle, 196 Ariz. 188, 190 ¶ 6, 994
P.2d 395, 397 (2000); see also Whalen v. United States, 445 U.S. 684, 688 (1980).1
The protection against double jeopardy may be triggered in two contexts.
First, if the same conduct is held to constitute a violation of two different
criminal statutes, “the 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); accord United States v. Dixon, 509 U.S. 688, 696 (1993); see also Eagle,
196 Ariz. at 190 ¶ 6, 994 P.2d at 397; cf. A.R.S. § 13-116 (requiring concurrent
sentences for a single “act or omission which is made punishable in
different ways by different sections of the laws”).
¶11 Second, if multiple violations of the same statute are based on
the same conduct, there can be only one conviction if there is a single
offense. See, e.g., State v. Powers, 200 Ariz. 123, 125 ¶ 5, 23 P.3d 668, 670
1On appeal, Jurden raised article 2, section 10 of the Arizona Constitution,
which also protects against double jeopardy, but did not separately argue
that provision. This Court has previously indicated that the provision is
coextensive with the Fifth Amendment’s Double Jeopardy Clause, see Eagle,
196 Ariz. at 190 ¶ 5, 994 P.2d at 397, a holding that we are not called upon
to reconsider here.
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STATE V. JURDEN
Opinion of the Court
(App. 2001), approved, 200 Ariz. 363, 26 P.3d 1134 (2001). In such cases, the
statutory definition of the crime determines the scope of conduct for which
a discrete charge can be brought, which the United States Supreme Court
has referred to as the “allowable unit of prosecution.” United States v.
Universal C.I.T. Credit Corp., 344 U.S. 218, 221 (1952). Because our decisions
have not definitively addressed the analysis pertaining to “unit of
prosecution” cases, we endeavor to do so here.
¶12 The seminal United States Supreme Court case is Ladner v.
United States, 358 U.S. 169 (1958), in which the Court reviewed a consecutive
sentence on a second assault charge where the defendant discharged his
weapon once but wounded two officers. Examining the federal assault
statute, the Court asked: “Did Congress mean that the single discharge of a
shotgun would constitute one assault, and thus only one offense, regardless
of the number of officers affected, or did Congress define a separate offense
for each federal officer affected by the doing of the act?” Id. at 173. The
Court examined the statutory language, history, and purpose, which it
found inconclusive. Id. at 173–77. The Court reasoned, “[A]n interpretation
that there are as many assaults committed as there are officers affected
would produce incongruous results.” Id. at 177. Under such a reading, a
defendant who seriously injured an officer would receive a maximum
sentence of ten years, “but if he points a gun at five officers, putting all of
them in apprehension of harm, he would commit five offenses punishable
by 50 years’ imprisonment, even though he does not fire the gun and no
officer actually suffers injury.” Id. Finally, the Court applied the “policy of
lenity,” in which the Court “will not interpret a federal criminal statute so
as to increase the penalty that it places on an individual when such an
interpretation can be based on no more than a guess as to what Congress
intended.” Id. at 178. These factors caused the Court to conclude that the
discharge of the shotgun constituted only one assault. Id.
¶13 Other state supreme courts have applied these criteria in “unit
of prosecution” cases. In Commonwealth v. Rabb, the Massachusetts
Supreme Judicial Court instructed:
The appropriate inquiry in a case like this . . . asks what “unit
of prosecution” was intended by the Legislature as the
punishable act. . . . The inquiry requires us to look to the
language and purpose of the statutes, to see whether they
speak directly to the issue of the appropriate unit of
prosecution, and if they do not, to ascertain that unit, keeping
in mind that any ambiguity that arises in the process must be
resolved, under the rule of lenity, in the defendant’s favor.
5
STATE V. JURDEN
Opinion of the Court
725 N.E.2d 1036, 1041 (Mass. 2000); accord State v. Schoonover, 133 P.3d 48,
65 (Kan. 2006) (“[I]n unit of prosecution cases the Court applies a rule of
lenity.”).
¶14 The Arizona cases cited by the State are not helpful in
determining the unit of prosecution because they neither address double
jeopardy nor discuss the unit of prosecution in § 13-2508. See State v.
Mitchell, 204 Ariz. 216, 62 P.3d 616 (App. 2003) (determining the meaning
of “effecting an arrest”); State v. Sorkhabi, 202 Ariz. 450, 452 ¶ 9, 46 P.3d 1071,
1073 (App. 2002) (finding that resisting arrest is not a victimless crime, but
rather a crime against a person where a “[d]efendant must use or threaten
to use physical force or any other means that creates a substantial risk of
causing physical injury to the peace officer”); State v. Womack, 174 Ariz. 108,
111, 847 P.2d 609, 612 (App. 1992) (finding that the statute did not apply to
a defendant who led officers on a high speed chase because the statute
prohibits threats or assaultive behavior directed toward an arresting officer,
whereas the chase was meant to put as much distance as possible between
the defendant and the officers).
¶15 Our objective in interpreting statutes is to give effect to the
legislature’s intent. See Baker v. Univ. Physicians Healthcare, 231 Ariz. 379,
383 ¶ 8, 296 P.3d 42, 46 (2013). If the statutory language is unambiguous,
we apply it as written without further analysis. Id. If, however, the statute
is subject to more than one reasonable interpretation, we consider
secondary principles of statutory interpretation, such as the context of the
statute, the language used, the subject matter, its historical background, its
effects and consequences, and its spirit and purpose. Id.
¶16 We find § 13-2508 is ambiguous because it may be reasonably
read to designate either an event-directed or victim-directed unit of
prosecution. We agree with the court of appeals that § 13-2508(A) may be
reasonably read as defining the offense as intentionally preventing or
attempting to prevent an arrest, with subsections (1), (2), and (3) describing
the various ways to resist a single arrest. Jurden, 237 Ariz. at 426 ¶ 10, 352
P.3d at 458. But § 13-2508(A) may also be reasonably read as defining the
offense as intentionally preventing or attempting to prevent a peace officer
from effecting an arrest, where the unit of prosecution focuses on each
officer resisted.
¶17 Because the language of § 13-2508(A) is reasonably
susceptible to two differing interpretations, we must turn to secondary
statutory construction methods to ascertain the unit of prosecution.
Utilizing those methods, we hold that § 13-2508 describes an event-directed
6
STATE V. JURDEN
Opinion of the Court
unit of prosecution that prohibits multiple convictions and punishments for
resisting arrest when, as here, the counts stem from one, uninterrupted
event.
¶18 The legislative history of the statute is not particularly
helpful. Before 1977, Arizona’s resisting arrest statute provided that a
person illegally arrested could resist the arrest, using whatever force
necessary, short of killing the arresting officer. Dugan v. State, 54 Ariz. 247,
250, 94 P.2d 873, 874 (1939). In 1977, the Arizona Legislature enacted a new
criminal code that included § 13-2508, which prohibited a person from
resisting any arrest, legal or not. 1977 Ariz. Sess. Laws, ch. 142, § 86 (1st
Reg. Sess.). In 2012, the legislature amended the statute to include passive
resistance as a means to resist arrest. 2012 Ariz. Sess. Laws, ch. 265, § 1 (2d
Reg. Sess.); § 13-2508(A)(3). However, neither party nor this Court has
found in this history any indication that the legislature intended the statute
to describe an event-directed or instead a victim-directed offense.
¶19 Turning to the statute’s purpose, we find that § 13-2508
addresses multiple objectives. There is no question that § 13-2508 seeks to
protect peace officers. See Mitchell, 204 Ariz. at 219 ¶ 16, 62 P.3d at 619 (“The
purpose of the resisting arrest statute is to protect peace officers and citizens
from substantial risk of physical injury.”). But the statute also seeks to
protect the authority of the state. That goal is reflected in the statutory
language, which requires that the resistance be directed against a person
“acting under color of . . . official authority.” A.R.S. § 13-2508(A). As the
court of appeals found, this serves to “criminalize a person’s conduct that
presents a risk of harm in a particular context—when the actor is interfering
with the peace officer’s efforts to exercise state authority.” Jurden, 237 Ariz.
at 428 ¶ 18, 352 P.3d at 460.
¶20 Focusing on the event also finds support in the common law,
which recognized that the crime of resisting arrest is “an offense against the
State and not personally against the officers.” Purnell v. State, 827 A.2d 68,
80 (Md. 2003), cited with approval in State v. Le Noble, 216 Ariz. 180, 182–83
¶ 12, 164 P.3d 686, 688–89 (App. 2007). Insofar as resisting arrest is an
offense against the state’s authority, the unit of prosecution would not
depend on the number of officers resisted, but rather on each arrest resisted
in defiance of state authority.
¶21 An event-directed unit of prosecution satisfies both purposes
of the statute. The purpose of protecting officers is advanced with an event-
directed offense because whether a person resists one or several officers in
a continuous event, he may be charged with and convicted of resisting
7
STATE V. JURDEN
Opinion of the Court
arrest. A single charge of resisting arrest in each uninterrupted course of
conduct satisfies the purpose of mandating submission to the state.
¶22 The statute’s context, structure, and effects also support our
conclusion that § 13-2508 is an event-directed offense. In 2012, the
legislature added passive resistance to the offenses covered by the statute.
2012 Ariz. Sess. Laws, ch. 265, § 1; § 13-2508(A)(3). Passive resistance is
defined as “a nonviolent physical act or failure to act that is intended to
impede, hinder or delay the effecting of an arrest.” A.R.S. § 13-2508(C).
This subsection does not require action directed against an officer, but
serves to punish anyone who impedes the arrest, which is a function of the
state’s authority. This language describes a unit of prosecution grounded
in the event of the arrest, not the officers.
¶23 The legislature’s addition of passive resistance also makes it
clear that a victim-directed reading of § 13-2508 could potentially lead to
unintended outcomes. For example, a person who simply does not open
the door when officers attempt to arrest him commits passive resistance
under § 13-2508(C). Many officers may break open the door, find the
suspect, and “effect” the arrest under § 13-2508(A).2 Although the arrest
could have been made by a single officer, the arrestee would nonetheless
be subject to a resisting–arrest charge for each officer who took part in the
arrest. Multiple convictions would not further the statute’s purposes.
¶24 Section 13-2508’s placement within the overall criminal
statutory scheme also demonstrates a legislative intent to deter and punish
those who interfere with state authority rather than those who attack
individual officers. See Grant v. Bd. of Regents of Univs. and State Colls. of
Ariz., 133 Ariz. 527, 529, 652 P.2d 1374, 1376 (1982). Section 13-2508 is placed
in the “Escape and Related Offenses” section of Arizona’s criminal code.
A.R.S. tit. 13, ch. 25. Resisting arrest is placed in the same chapter as escape,
A.R.S. §§ 13-2502–2504; promoting prison contraband, A.R.S. § 13-2505;
failure to appear, A.R.S. §§ 13-2506–2507; resisting an order directing,
regulating or controlling a motor vehicle, A.R.S. § 13-2509; hindering
prosecution, A.R.S. §§ 13-2510–2512; failure to discharge duties, A.R.S. § 13-
2513; and promoting secure care facility contraband, A.R.S. § 13-2514.
These statutes focus on violations of state authority rather than
2The issue of what “effecting an arrest” means was explicitly analyzed in
Mitchell, 204 Ariz. at 218-19 ¶¶ 11–18, 62 P.3d at 618–19. The court
determined that effecting an arrest under § 13-2508 “connotes successful,
effective restraint or submission of the person,” which is to be determined
on a case-by-case basis. Id. at 219 ¶ 15, 62 P.3d at 619.
8
STATE V. JURDEN
Opinion of the Court
concentrating on the individual state actors who may be involved in the
crime. Although not dispositive, the placement of § 13-2508 within a
chapter that otherwise only deals with offenses against the state supports
an inference of legislative intent to create an event-directed unit of
prosecution that focuses on punishing those who interfere with state
authority.
¶25 We find further support for our decision that § 13-2508
describes an event-directed offense in complementary Arizona statutes.
Each individual officer is protected under Arizona’s assault statutes, A.R.S.
§§ 13-1203–1204, which are notably placed in a separate chapter of the code
from the resisting arrest statute. These statutes separately and properly
criminalize victim-directed offenses when a person resists officers
attempting to effect an arrest. Therefore, the goal of protecting individual
officers does not require interpreting § 13-2508 as a victim-focused offense
because a criminal sanction already exists under §§ 13-1203–1204 for
injuries or threat of injuries to officers. Indeed, Jurden was charged with
two counts of assault and convicted of one count of aggravated assault
under these two statutes. Moreover, a simple assault under § 13-1203
becomes a more serious aggravated assault if the assailant knows or should
know that the victim is a peace officer engaged in executing his official
duties. A.R.S. § 13-1204(A)(8).
¶26 In sum, we conclude that § 13-2508 yields two reasonable
interpretations. It can be read as either containing an event-directed or
victim-directed unit of prosecution. The statute serves both to punish
resistance to state authority and to protect officers. But its primary purpose
is the first, and allowing multiple criminal convictions could produce
unintended and unfair results. This reading does not work any hardship
upon law enforcement, given that one count of resisting arrest can be
coupled in appropriate circumstances with assault charges, as was the case
here. For all the reasons set forth above, we conclude the legislature did
not intend, and the Double Jeopardy Clause does not allow, multiple
convictions and punishments under § 13-2508 for a single, continuous act
of resisting arrest.
III. CONCLUSION
¶27 For the foregoing reasons, we vacate the opinion of the court
of appeals, vacate Jurden’s second conviction for resisting arrest, and affirm
the remaining convictions and sentences.
9