IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO
THE STATE OF ARIZONA, ) ) 2 CA-CR 2003-0322 Appellee, ) DEPARTMENT A ) v. ) O P I N IO N ) OSCAR MANUEL LOPEZ, ) ) Appellan t. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20022713
Honorable H oward Fell, Judg e Pro Tempo re
AFFIRMED
Terry Goddard, Arizona Attorney General By Randall M. Howe and Alan L. Amann Tucson Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender By Stephan J. M cCaffery Tucson Attorneys for Appellant
B R A M M E R, Judge.
¶1 A jury found appellant Oscar Manuel Lopez guilty of misconduct involving
weapons by posse ssing a d eadly w eapon when p rohibited from doing so. T he trial court
sentenced him to the presumptive, 4.5-year prison term. On appeal, Lopez maintains the trial court erroneously refused to require the state to accept his stipulation to his prohibited
possessor status and that it abused its discretion by refu sing his proffered jury instruction on
“passing control.” W e affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury’s verdict and
resolve all reasonable inferences aga inst Lopez. See State v. Riley, 196 Ariz. 40, 992 P.2d
1135 (App. 1999). In August 2002, off-duty border patrol agent Charles S achs wa s sitting in
a parked car when he heard gunshots and saw a muzzle flash coming from the driver’s side of
the red sports utility vehicle (SUV) that Lopez was driving. Two other police officers who had
been parked nearby also heard gunshots. Another Tucson police officer, Guy Cox, saw Lopez
drive through a red light and p ulled him over. Cox approached the passenger side of the SUV
and noticed a handgun between the driver’s seat Lopez occupied and the center console. In a
later interview, Lopez admitted that he had been convicted of a felony and had not ha d his right
to possess a firearm restored.
¶3 The state charged Lopez with misconduct involving weapons by prohibited
possession of a deadly weapon and unlawful discharge of a firearm. The jury fo und him g uilty
of the former charge but acquitted him of the latter. This appeal followed.
Rejected Stipulation
¶4 Lopez first maintains that the trial court abused its discretion by allowing the
state to reject his proffered pre-trial stipulation that he was a prohibited possessor. The state
argued that his status as a prohibited possessor was an element of the offense the state was
2 required to prove. T he trial court stated that, although entering the stipulation would be
“judicially economical,” the court had “no authority to require the State to [agree to the
stipulation].” The state and Lopez later stipulated that Lopez previously had been convicted of
a felony, and tha t stipulatio n was read to th e jury.
¶5 Lopez now contends the trial court abused its discretion by not compelling the
state to accept his first stipu lation that he w as a prohib ited possessor, and by fa iling to
recognize that it had discretion to do so. He relies primarily on State v. Leonard, 151 Ariz.
1, 8, 725 P.2d 493, 500 (App. 1 986), in which Division One of this court found harmless error
in the trial court’s rejection of stipulations the defendant had offered that would have admitted
prior convictions for driving under the influence of an intoxicant (D UI), holding that “the state
is not required to accept a stipulation w hen the pre judicial potential of the eviden ce is
substantially outweighed by the state’s legitimate need to prove the facts to which the
defendant offers to stipulate.” Because the prior convictions were not elements of the charged
offense, the trial court had concluded that making their existence known to the jury was
prejudicial to the defendant. The court found this error harmless, however, in light of the other
substantial ev idence of th e defenda nt’s guilt.
¶6 In State ex rel. R omley v. G alati, 195 Ariz. 9, 985 P.2d 494 (1999), the
defendant had been charged with aggravated DUI, among the elements of which is that the
defendant twice previously had been convicted of DUI. A.R.S. § 28-1383. The defendant had
offered to stipulate to the two prior conv ictions, prov ided the jury would not hear about them.
The state refused on the ground that the court could not preclude the jury from hearing
3 evidence on those elements. The supreme court held that, “b ecause the prior conv ictions to
which the defendant[] agreed to stipulate constitute elements of the charged offense, [he was]
not entitled to a bifurcated trial,” 195 Ariz. 9, ¶ 16, 985 P.2d at 497. The defendant was not
entitled to have the fact of his prior con victions kept from the jury. See also State v. Newnom,
No. 2 CA -CR 2002-0 447, 2004 W L 1891497 (Ariz. Ct. App. A ug. 25, 2004).
¶7 Although Lopez did not ask for a bifurcated trial, based on Galati he was not
entitled to keep from the jury one o f the elements of the crime charged. See Ariz. R. Crim.
P. 19.1(b), 17 A.R.S. (where prior conviction is element of c rime defend ant is not entitled to
bifurcated trial). This case is more like Galati than Leonard. In Leonard, the defendant had
not sought to stipulate to an element o f the charge d offense, b ut, rather, he had soug ht to
stipulate to prior convictions that were to be used for sentence enhancement purposes. 1
¶8 Here, although the proffered stipulation that Lopez was a prohibited possessor
would have been read to the jury, Lopez attempted to remove from the jury’s consideration
elements of the charged offense—that he has a prior felony conviction and that his civil right
to possess or carry a firearm has not been restored.2 A.R.S. § 1 3-3101(A)(6)(b). Based on
Galati, the trial court did not err by refusing to compel the state to accept Lopez’s stipulation.
1 After Division One decided Leonard, the legislature enacted the current aggravated DUI statute under which the prior sentence enhancement factors have now become e lements of the crime. See State ex rel. Rom ley v. Gala ti, 193 Ariz. 437, 9 73 P.2d 118 8 (App. 199 8). 2 We find no merit to Lopez’s contention that the existence of a prior felony conviction is not an “element” of the offense of weapons misconduct, but merely a descriptive definition.
4 ¶9 In light of Galati, we do not address Lopez’s arguments based on Leonard’s
suggested balancing test. Likew ise, we also reject Lop ez’s contention that the trial court
improperly believed it was without discretion to compel the state to accept his stipulation.
Jury Instruction
¶10 Lopez also contends the trial court erroneously refused his proffered jury
instruction on “passing con trol.” We will not disturb a trial court’s decision to refuse a jury
instruction absent a clear abuse of its discretion, State v. Tschilar, 200 Ariz. 427, 27 P.3d 331
(App. 2001), but review de novo w hether the proffered instruction correctly stated the law.
State v. Morales, 198 Ariz. 372, 10 P.3d 630 (App. 2000); see State v. L eslie, 147 Ariz. 38,
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IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO
THE STATE OF ARIZONA, ) ) 2 CA-CR 2003-0322 Appellee, ) DEPARTMENT A ) v. ) O P I N IO N ) OSCAR MANUEL LOPEZ, ) ) Appellan t. ) )
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR-20022713
Honorable H oward Fell, Judg e Pro Tempo re
AFFIRMED
Terry Goddard, Arizona Attorney General By Randall M. Howe and Alan L. Amann Tucson Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender By Stephan J. M cCaffery Tucson Attorneys for Appellant
B R A M M E R, Judge.
¶1 A jury found appellant Oscar Manuel Lopez guilty of misconduct involving
weapons by posse ssing a d eadly w eapon when p rohibited from doing so. T he trial court
sentenced him to the presumptive, 4.5-year prison term. On appeal, Lopez maintains the trial court erroneously refused to require the state to accept his stipulation to his prohibited
possessor status and that it abused its discretion by refu sing his proffered jury instruction on
“passing control.” W e affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the jury’s verdict and
resolve all reasonable inferences aga inst Lopez. See State v. Riley, 196 Ariz. 40, 992 P.2d
1135 (App. 1999). In August 2002, off-duty border patrol agent Charles S achs wa s sitting in
a parked car when he heard gunshots and saw a muzzle flash coming from the driver’s side of
the red sports utility vehicle (SUV) that Lopez was driving. Two other police officers who had
been parked nearby also heard gunshots. Another Tucson police officer, Guy Cox, saw Lopez
drive through a red light and p ulled him over. Cox approached the passenger side of the SUV
and noticed a handgun between the driver’s seat Lopez occupied and the center console. In a
later interview, Lopez admitted that he had been convicted of a felony and had not ha d his right
to possess a firearm restored.
¶3 The state charged Lopez with misconduct involving weapons by prohibited
possession of a deadly weapon and unlawful discharge of a firearm. The jury fo und him g uilty
of the former charge but acquitted him of the latter. This appeal followed.
Rejected Stipulation
¶4 Lopez first maintains that the trial court abused its discretion by allowing the
state to reject his proffered pre-trial stipulation that he was a prohibited possessor. The state
argued that his status as a prohibited possessor was an element of the offense the state was
2 required to prove. T he trial court stated that, although entering the stipulation would be
“judicially economical,” the court had “no authority to require the State to [agree to the
stipulation].” The state and Lopez later stipulated that Lopez previously had been convicted of
a felony, and tha t stipulatio n was read to th e jury.
¶5 Lopez now contends the trial court abused its discretion by not compelling the
state to accept his first stipu lation that he w as a prohib ited possessor, and by fa iling to
recognize that it had discretion to do so. He relies primarily on State v. Leonard, 151 Ariz.
1, 8, 725 P.2d 493, 500 (App. 1 986), in which Division One of this court found harmless error
in the trial court’s rejection of stipulations the defendant had offered that would have admitted
prior convictions for driving under the influence of an intoxicant (D UI), holding that “the state
is not required to accept a stipulation w hen the pre judicial potential of the eviden ce is
substantially outweighed by the state’s legitimate need to prove the facts to which the
defendant offers to stipulate.” Because the prior convictions were not elements of the charged
offense, the trial court had concluded that making their existence known to the jury was
prejudicial to the defendant. The court found this error harmless, however, in light of the other
substantial ev idence of th e defenda nt’s guilt.
¶6 In State ex rel. R omley v. G alati, 195 Ariz. 9, 985 P.2d 494 (1999), the
defendant had been charged with aggravated DUI, among the elements of which is that the
defendant twice previously had been convicted of DUI. A.R.S. § 28-1383. The defendant had
offered to stipulate to the two prior conv ictions, prov ided the jury would not hear about them.
The state refused on the ground that the court could not preclude the jury from hearing
3 evidence on those elements. The supreme court held that, “b ecause the prior conv ictions to
which the defendant[] agreed to stipulate constitute elements of the charged offense, [he was]
not entitled to a bifurcated trial,” 195 Ariz. 9, ¶ 16, 985 P.2d at 497. The defendant was not
entitled to have the fact of his prior con victions kept from the jury. See also State v. Newnom,
No. 2 CA -CR 2002-0 447, 2004 W L 1891497 (Ariz. Ct. App. A ug. 25, 2004).
¶7 Although Lopez did not ask for a bifurcated trial, based on Galati he was not
entitled to keep from the jury one o f the elements of the crime charged. See Ariz. R. Crim.
P. 19.1(b), 17 A.R.S. (where prior conviction is element of c rime defend ant is not entitled to
bifurcated trial). This case is more like Galati than Leonard. In Leonard, the defendant had
not sought to stipulate to an element o f the charge d offense, b ut, rather, he had soug ht to
stipulate to prior convictions that were to be used for sentence enhancement purposes. 1
¶8 Here, although the proffered stipulation that Lopez was a prohibited possessor
would have been read to the jury, Lopez attempted to remove from the jury’s consideration
elements of the charged offense—that he has a prior felony conviction and that his civil right
to possess or carry a firearm has not been restored.2 A.R.S. § 1 3-3101(A)(6)(b). Based on
Galati, the trial court did not err by refusing to compel the state to accept Lopez’s stipulation.
1 After Division One decided Leonard, the legislature enacted the current aggravated DUI statute under which the prior sentence enhancement factors have now become e lements of the crime. See State ex rel. Rom ley v. Gala ti, 193 Ariz. 437, 9 73 P.2d 118 8 (App. 199 8). 2 We find no merit to Lopez’s contention that the existence of a prior felony conviction is not an “element” of the offense of weapons misconduct, but merely a descriptive definition.
4 ¶9 In light of Galati, we do not address Lopez’s arguments based on Leonard’s
suggested balancing test. Likew ise, we also reject Lop ez’s contention that the trial court
improperly believed it was without discretion to compel the state to accept his stipulation.
Jury Instruction
¶10 Lopez also contends the trial court erroneously refused his proffered jury
instruction on “passing con trol.” We will not disturb a trial court’s decision to refuse a jury
instruction absent a clear abuse of its discretion, State v. Tschilar, 200 Ariz. 427, 27 P.3d 331
(App. 2001), but review de novo w hether the proffered instruction correctly stated the law.
State v. Morales, 198 Ariz. 372, 10 P.3d 630 (App. 2000); see State v. L eslie, 147 Ariz. 38,
708 P.2d 719 (1985) (trial court does not err in refusing instructions that d o not correc tly
state the law). A defendant is entitled to a jury instruction “on any theory reasonably supported
by the evidence.” State v. Johnson, 205 Ariz. 413, ¶ 10, 72 P.3d 343, 347 (Ap p. 2003); see
also State v. Rodriguez, 192 Ariz. 58, 961 P.2d 1006 (1998). And “when the substance of a
proposed instruction is ad equately cov ered by othe r instructions, th e trial court is not required
to give it.” State v. Hoskins, 199 Ariz. 127, ¶ 75, 14 P.3d 9 97, 1015 (200 0).
¶11 Lopez requested that the court instruct the jury that “[p]assing control . . . [of an
item] does not constitute possession of that item,” and that, in order to find Lopez guilty, the
jury must find he had “more than just passing control of a firearm.” In rejecting Lopez’s
instruction, the court explained that existing instructions adeq uately stated the law and noted
5 that Lopez still could argue to the jury the me aning of “possession ” based on the jury
instructions on “actual” and “constructive” possession.3
¶12 Lopez maintains that the proffered instruction was appropriate because the
existing definitions of “possession” were inadequate and because the instruction would have
supported his theory that h e simply discovered the gun in h is vehicle after h is passengers had
left. He relies on State v. Tyler, 149 Ariz. 312, 718 P.2d 214 (App. 1986), for his contention
that “it would be appropriate ” to clarify that “passing control does no t constitute possession.”
In Tyler, the defendant’s theory had been that his mere “momentary innocent handling” of a
prohibited weapon was insufficient to establish criminal possession. 149 Ariz. at 316, 718
P.2d at 218. Division O ne of this court found th e trial court did n ot abuse its discretion in
refusing to give the defendant’s proposed jury instruction, which focused on the de fendant’s
possession of the weapon “for a limited period of time.” Id. The court determined that
existing instructions on the meaning of possession adequately conveyed the meaning of
“control” and that the pro posed instruction wo uld be of no further assistance to the jury. Id.
3 The cou rt instructed the jury, in pertinent part, as follows:
The law recognizes tw o kinds of possession[ :] actual possession and constructive possession.
Actual possession means the defendant knowingly has direct physical c ontrol over an object.
Constructive possession means the defendant does not actually possess an object but knowingly has the power and the intention to exercise dominion and control over it, either acting alone or through another person.
6 ¶13 Such is the case here. In Tyler, Division O ne approved, in theory, of an
instruction that provide s the state mus t prove the d efendant “ wilfully [kep t a firearm] in his
possession with the inte nt to control [ its] use and m anageme nt . . . or . . . w ith the power and
intent to guide or manage [it],” id. at 316-17, 718 P .2d at 218-19, quoting State v. Run nels,
456 P.2d 16 (Ka n. 1969). Howeve r, that instruction differs substantially from the one Lopez
requested and makes no mention of the “passing control” concept Lopez advances here. We
express no opinion on how this court w ould evalu ate the hypoth etical jury instruction Tyler
suggests. Because Lopez c ites us to no authority supporting his pro ffered instruction, we
cannot conclude that it correctly stated the law. Morales; see Leslie. Moreover, the ju ry
instructions the court gave adeq uately explained the conce pt of possession. See Hoskins; see
also Tyler (terms “dominion” and “co ntrol” need not be further defined b ecause the ir
significance is adequately conv eyed by their ordinary meaning).
¶14 For the foregoing reasons, Lopez’s conviction and sentence are affirmed.
J. WILLIAM BRAM MER, JR., Judge
CONCURRING:
JOSEPH W. HO WARD, Presiding Judge
PETER J. ECKER STROM, Judge