State v. Griffin

58 P.3d 516, 203 Ariz. 574, 387 Ariz. Adv. Rep. 7, 2002 Ariz. App. LEXIS 182
CourtCourt of Appeals of Arizona
DecidedNovember 21, 2002
DocketNo. 2 CA-CR 2001-0020
StatusPublished
Cited by2 cases

This text of 58 P.3d 516 (State v. Griffin) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Griffin, 58 P.3d 516, 203 Ariz. 574, 387 Ariz. Adv. Rep. 7, 2002 Ariz. App. LEXIS 182 (Ark. Ct. App. 2002).

Opinion

OPINION

PELANDER, J.

¶ 1 After a jury trial, appellant Colten Eugene Griffin was convicted of possessing a deadly weapon as a prohibited possessor in violation of A.R.S. § 13—3102(A)(4). He was acquitted of cruel mistreatment of an animal. The trial court sentenced Griffin to a presumptive four-and-one-half-year prison term and ordered him to pay restitution. Griffin contends his conviction improperly required the retroactive application of A.R.S. § 13-904(A)(5) to his prior 1992 felony conviction and, therefore, violated A.R.S. § 1-244 and his federal and state constitutional rights to due process. U.S. Const. amend. V and XIV; Ariz. Const. art. II, § 4. We agree that, absent an express legislative declaration of retroactive intent, retroactive application of § 13-904(A)(5) impermissibly altered the legal consequences of Griffin’s 1992 conviction, which had not suspended his vested right to possess a firearm. Therefore, we vacate his conviction. Because we further agree with Griffin, as does the state, that the trial court erred in imposing restitution, we also vacate that order.

BACKGROUND

¶ 2 On appeal, we generally view the facts in the light most favorable to sus[577]*577taining the verdict. State v. Carrasco, 201 Ariz. 220, ¶ 1, 33 P.3d 791, ¶ 1 (App.2001). Because Griffin also challenges the trial court’s refusal to instruct the jury on his proffered justification defense, however, we view the evidence in the light most favorable to him. See State v. Rodriguez, 192 Ariz. 58, ¶ 20, 961 P.2d 1006, ¶ 20 (1998); State v. Lucas, 146 Ariz. 597, 603, 708 P.2d 81, 87 (1985). In any event, although the parties presented conflicting evidence at trial about the circumstances that led to Griffin’s arrest and conviction, any factual discrepancies are not material to our ruling on the retroactivity issue.

¶3 In February 2000, Griffin and his neighbor, John Lumia, had an ongoing easement dispute involving their remote, adjoining property in Vail, Arizona. Griffin and his girlfriend, Carol Brockman, drove past Lu-mia, who was walking his dog along the roadway that ran between their parcels. As Griffin passed Lumia, both parties angrily exchanged words. By the time Griffin turned his truck around and headed back in the other direction, Lumia had obtained a rifle and had positioned his truck across the roadway to block Griffin’s travel. Griffin and Brockman testified that, when they had approached Lumia’s truck, Lumia had pointed his rifle at them and they had feared he would shoot them.

¶4 Griffin eventually drove around Lu-mia’s truck and returned to his property. According to Griffin and Brockman, Lumia continued to point the rifle at them while they were on Griffin’s land. They wanted to call the sheriffs department to report the incident and seek help, but their cellular telephone only had service in an area near the main access road that was exposed to Lumia’s rifle. Griffin retrieved Brockman’s shotgun from inside a trader on his property in order to “draw fire” from Lumia while Brockman called the authorities. Griffin positioned himself in his driveway while Brock-man made the telephone call, but did not aim the shotgun at Lumia.

¶5 As Griffin stood in his driveway, Lu-mia’s dog ran across Griffin’s property, chasing and nipping at one of the goats Griffin raised on the land. Griffin shot the' dog in the rear, according to his testimony, to frighten and discourage it from returning to his land. The dog was"treated and eventually recovered.

DISCUSSION

I. Application of § 13-904(A)(5) to Griffin’s 1992 Conviction

¶ 6 Griffin contends retroactively applying § 13-904(A)(5) to his 1992 conviction, thereby suspending his right to possess a firearm and consequently changing his status to that of a prohibited possessor under A.R.S. § 13-3101(A)(6)(b), violates § 1-244 and his federal and state due process rights. By failing to raise this claim below, Griffin waived it absent fundamental error. See State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991); State v. Tison, 129 Ariz. 526, 535, 633 P.2d 335, 344 (1981); State v. Calabrese, 157 Ariz. 189, 191, 755 P.2d 1177, 1179 (App.1988). “Fundamental error is ‘error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.’” State v. Bible, 175 Ariz. 549, 572, 858 P.2d 1152, 1175 (1993), quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). If Griffin’s claim is correct, he would not have been a prohibited possessor at the time of this offense, and his conviction under § 13-3102(A)(4) as a prohibited possessor would amount to fundamental error.

¶ 7 Section 1-244 provides that “[n]o statute is retroactive unless expressly declared therein.” In other words, “ § 1-244 requires an express statement of retroactive intent before a statute will be considered retroactive.” San Carlos Apache Tribe v. Superior Court, 193 Ariz. 195, ¶ 14, 972 P.2d 179, ¶ 14 (1999). Under § 1-244, “[ujnless a statute is expressly declared to be retroactive, it will not govern events that occurred before its effective date.” State v. Coconino County Superior Court, 139 Ariz. 422, 427, 678 P.2d 1386, 1391 (1984). Similarly, A.R.S. § 1-246 provides that, in the criminal context, an “offender shall be punished under the law in force when the offense was com[578]*578mitted.” Because the current version of § 13-904(A)(5) does not expressly state that it is to be retroactively applied, we first must determine whether that statute was retroactively applied to Griffin’s 1992 conviction.

¶ 8 We look to the date of the offense, rather than the date of adjudication, to determine whether a statute is being retroactively applied. In re Shane B., 198 Ariz. 85, ¶ 7, 7 P.3d 94, ¶ 7 (2000). Griffin previously was convicted in Pinal County of aggravated assault, a class three, nondangerous felony, for an offense committed in February 1992. At that time, § 13-904(A) provided:

A conviction for a felony suspends the following civil rights of the person sentenced:
1. The right to vote.
2. The right to hold public office of trust or profit.
3. The right to serve as a juror.
4.

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Cite This Page — Counsel Stack

Bluebook (online)
58 P.3d 516, 203 Ariz. 574, 387 Ariz. Adv. Rep. 7, 2002 Ariz. App. LEXIS 182, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-griffin-arizctapp-2002.