                          NOTICE: NOT FOR PUBLICATION.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.

                     CHRISTEPHER E. LUA, Appellant.

                             No. 1 CA-CR 12-0819
                              FILED 07-29-2014


            Appeal from the Superior Court in Mohave County
                         No. S8015CR20100834
                 The Honorable Steven F. Conn, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Linley Wilson
Counsel for Appellee

Mohave County Legal Advocate, Kingman
By Jill L. Evans
Counsel for Appellant
                              STATE v. LUA
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Michael J. Brown joined.


D O W N I E, Judge:

¶1            Christepher Lua appeals his convictions and sentences for
attempted manslaughter, aggravated assault, misconduct involving
weapons, and assisting a criminal street gang. In a separate opinion, we
affirm the attempted manslaughter convictions. In this memorandum
decision, we affirm Lua’s remaining convictions and sentences.

                 FACTS AND PROCEDURAL HISTORY 1

¶2           D.G. and D.C. were leaving a convenience store when Lua
and other men who were gathered around a nearby car began verbally
taunting them. Events progressed quickly to a physical altercation. D.G.
and D.C. returned to their vehicle. After hearing someone yell “coward,”
D.C. gestured as if he were grabbing something from his car and ran back
toward the other vehicle, where Lua was now in the driver’s seat. D.C.’s
hand was behind his back as he approached.             When D.C. was
approximately two feet away, Lua shot him. D.G. then ran toward Lua
and began grabbing his arm and hitting him. Lua shot D.G. before
fleeing.

¶3           During a police interview, Lua admitted shooting D.C.
several times but said that he did so because he believed D.C. had a gun
and “was going to shoot us.” Lua stated he discarded the gun used to
shoot D.G. and D.C. and went to Mexico because he knew he was
“wanted.”

¶4           Lua was originally charged with two counts of attempted
first degree murder (counts 1 and 2); two counts of aggravated assault


1      We view the trial evidence in the light most favorable to sustaining
the jury’s verdicts. See State v. Nelson, 214 Ariz. 196, 196, ¶ 2, 150 P.3d 769,
769 (App. 2007). We grant Lua’s Motion for Extension of Time to File
Reply Brief and have considered that brief.



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                             STATE v. LUA
                           Decision of the Court

(counts 3 and 4); and one count of assisting a criminal street gang (count
5). Lua’s first trial ended in a mistrial. The State subsequently charged
Lua by separate indictment with one count of misconduct involving
weapons arising from the same incident and successfully moved to join
the charges under Arizona Rule of Criminal Procedure 13.3. The trial
court also granted the State’s unopposed motion to amend counts 1 and 2
to reduce the charges to attempted second degree murder.

¶5           At his second trial, Lua contended he was justified in
shooting D.C. and D.G. on multiple grounds, including self-defense,
defense of a third person, defense of an occupied vehicle, and crime
prevention. See Arizona Revised Statutes (“A.R.S.”) §§ 13-404, -406, -411,
and -418. The jury, though, found Lua guilty of two counts of attempted
manslaughter, two counts of aggravated assault, one count of assisting a
criminal street gang, and one count of misconduct involving weapons.
The court sentenced him to concurrent and consecutive prison terms.

¶6            Lua timely appealed. We have jurisdiction under Article VI,
Section 9, of the Arizona Constitution and A.R.S. § 12–120.21(A)(1), 13–
4031, and –4033(A)(1).

                              DISCUSSION

I.    Jury Instructions

      A.     Burden of Proof re: Justification

¶7             When a defendant offers evidence of justification, “the state
must prove beyond a reasonable doubt that the defendant did not act with
justification.” A.R.S. § 13-205(A); see Rev. Ariz. Jury Instr. (”RAJI”) Stat.
Crim. 4.04 (self defense), 4.06 (defense of third person), 4.07 (defense of
premises), 4.11 (crime prevention), 4.18 (defense of occupied vehicle). 2 In
the case at bar, the court instructed the jury as follows:

      If evidence is presented by the Defendant that he was
      justified in acting in self-defense, to protect a third person, to
      prevent the crime of Aggravated Assault, or in defense of an
      occupied vehicle, then the State must prove beyond a
      reasonable doubt that he was not so justified.


2     We refer to the criminal RAJIs in effect at the time of trial, which
was prior to 2013 revisions.



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                              STATE v. LUA
                            Decision of the Court

The court further instructed jurors regarding the justification theories of
self-defense, defense of a third person, use of force in crime prevention,
and defense of an occupied vehicle. According to Lua, though, the court
should have sua sponte added the following language to the above-quoted
instruction: “If the State fails to carry this burden, then you must find the
defendant not guilty of the charges [here, of attempted murder,
manslaughter, aggravated assault, and assisting a criminal street gang].”
We disagree.

¶8              “No party may assign as error on appeal the court’s giving
or failing to give any instruction . . . unless the party objects thereto before
the jury retires to consider its verdict, stating distinctly the matter to
which the party objects and the grounds of his or her objection.” Rule
21.3(c). “It is the rare case in which an improper instruction will justify
reversal of a criminal conviction when no objection has been made in the
trial court.” State v. Zaragoza, 135 Ariz. 63, 66, 659 P.2d 22, 25 (1983).
Because Lua did not request the language at issue, we review only for
fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d
601, 607 (2005). 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 have received a
fair trial. Id. at 568, ¶ 24, 115 P.3d at 608. In determining the propriety of
jury instructions, we consider the instructions as a whole to determine
whether they adequately reflect the law. State v. Sierra-Cervantes, 201 Ariz.
459, 462, ¶ 16, 37 P.3d 432, 435 (App. 2001).

¶9              We find no fundamental error. Instructing jurors that the
State must prove beyond a reasonable doubt that Lua did not act with
justification under any of the proffered theories, together with the general
burden of proof instruction (“the State has the burden of proving the
Defendant guilty beyond a reasonable doubt”) was legally sufficient. See,
e.g., State v. Cannon, 157 Ariz. 107, 107, 755 P.2d 412, 412 (1988) (declining
to find fundamental error because “the elements of self-defense were
stated and the jury was instructed that the prosecution had to prove all of
its case beyond a reasonable doubt”).

       B.     Apparent Attempted Use or Apparent Threatened Use of
              Unlawful Deadly Force

¶10         Lua also contends the trial court should have instructed
jurors they could find his actions justified based on D.C.’s apparent
attempted use or apparent threatened use of deadly force. We once again




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                             STATE v. LUA
                           Decision of the Court

review for fundamental error because Lua did not preserve this objection
in the trial court. The court instructed jurors, in pertinent part:

      Self-defense or protection of a third person justifies the use
      or threat of physical force only while the apparent danger
      continues. The right to use physical force in self-defense or
      in protection of a third person ends when the apparent
      danger ends.

      Actual danger is not necessary to justify the use of physical
      force in self-defense or to protect a third person. It is enough
      if a reasonable person in the Defendant's situation would
      have believed that he or the third person was in immediate
      physical danger.

¶11          Additionally, during closing argument, defense counsel
discussed the testimony of independent eyewitnesses and stated:

      Both of them said that if they were in Mr. Lua’s position,
      they would have thought that [D.C.] had a gun in his hand
      as he approached that vehicle.

      Now, starting with the justification instruction. Actual
      danger is not necessary to justify the use of physical force in
      self-defense, or to protect a third person. It is enough that a
      reasonable person[] in the defendant’s situation would have
      believed that he or the third person was in immediate
      physical danger.

¶12            The instructions given, in conjunction with the closing
arguments of counsel, properly advised jurors that actual attempted or
threatened use of deadly force was not required to justify Lua’s actions.
See State v. Johnson, 205 Ariz. 413, 417, ¶ 11, 72 P.3d 343, 347 (App. 2003)
(appellate courts consider jury instructions, “in conjunction with the
closing arguments of counsel.”). Moreover, in instructing jurors about
justification in the context of crime prevention, the court advised that
“[t]he actual commission of the crime of Aggravated Assault is not
necessary to justify the use or threatened use of physical force or deadly
physical force in crime prevention. It is enough if a reasonable person in
the person’s situation would have believed that the crime of Aggravated
Assault was being or would be committed.” We find no error,
fundamental or otherwise.




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                              STATE v. LUA
                            Decision of the Court

       C.     Innocent Third Party

¶13           Lua next challenges the following jury instruction:

       Even if the Defendant was justified in threatening or using
       physical force or deadly physical force against one person, if
       in doing so he injured an innocent third person the
       justification for his conduct as to the one person is not
       available in a prosecution for the reckless injury to the
       innocent third person.

¶14            Lua cites a June 14, 2012 transcript, asserting he objected to
this instruction as unsupported by the evidence. That transcript, though,
is from Lua’s first trial. Objections made during that trial did not carry
forward to the second trial. Our review would therefore be limited to
fundamental error. Lua, though, presents no argument in his opening
brief regarding fundamental error and has thus waived the issue. See State
v. Moreno-Medrano, 218 Ariz. 349, 354, ¶¶ 16-17, 185 P.3d 135, 140 (App.
2008) (declining to review for fundamental error when appellant failed to
raise claim in trial court and failed on appeal to address whether alleged
error was fundamental); see also State v. Watson, 198 Ariz. 48, 51, ¶ 4, 6 P.3d
752, 755 (App. 2000) (arguments not presented until reply brief will not be
considered).

II.    Joinder: Weapons Misconduct Charge

¶15            Lua contends the court committed fundamental error by
granting the State’s motion to join the weapons misconduct charge and by
failing to sua sponte sever the joined cases. We assume, without deciding,
that Lua did not invite this alleged error. Rule 13.3(a), (c) states:

       a. Offenses. Provided that each is stated in a separate count,
       2 or more offenses may be joined in an indictment,
       information, or complaint, if they:

              (1) Are of the same or similar character; or

              (2) Are based on the same conduct or are otherwise
              connected together in their commission; or

              (3) Are alleged to have been a part of a common
              scheme or plan.

       ...



                                      6
                             STATE v. LUA
                           Decision of the Court

       c. Consolidation. If such offenses . . . are charged in separate
       proceedings, they may be joined in whole or in part by the
       court or upon motion of either party, provided that the ends
       of justice will not be defeated thereby.

Properly joined offenses may be severed by the court sua sponte and must
be severed upon request if “necessary to promote a fair determination of
the guilt or innocence of [the] defendant.” Rule 13.4(a).

¶16           In granting the State’s joinder motion, the trial court found
that the two “sets of charges” were “clearly based on the same conduct”
and “connected together in their commission.” The record supports these
determinations. As Lua himself concedes, the “shooting charges and the
misconduct involving weapons charges arguably arose out of ‘the same
conduct’ and were ‘connected together.’ Lua was a prohibited possessor
at the time he committed the shooting and it was the act of using the gun
during the shooting that led to both the attempted murder and aggravated
assault charges and the misconduct involving weapons charge.” The
court instructed the jury:

       Evidence was admitted through the Stipulation that the
       Defendant was previously adjudicated delinquent in
       juvenile court for a felony. Such evidence was not admitted
       and may not be considered to prove that he is a bad person
       or that he has a disposition to engage in criminal conduct.
       You may consider that evidence only as it relates to the
       charge of Misconduct Involving Weapon[s].

       ....

       Each count charges a separate and distinct offense. You
       must decide each count separately on the evidence with the
       law applicable to it, uninfluenced by your decision on any
       other count. You may find that the State has proved beyond
       a reasonable doubt, all, some, or none of the charged
       offenses.

¶17           The trial court did not err by granting the State’s joinder
motion. Nor did it fundamentally err by not subsequently acting sua
sponte to sever the charges. We have previously held that Rule 13.4 “does
not require the court to order a severance; it only gives it the discretion to
do so on its own initiative.” State v. Longoria, 123 Ariz. 7, 10, 596 P.2d
1179, 1182 (App. 1979); see also Rule 13.4(a) cmt. (“The two standards —
‘the court may on its own initiative, and shall on motion of a party’ — are


                                      7
                             STATE v. LUA
                           Decision of the Court

intended to indicate the court’s power to act on its own authority to sever,
but to remove any implication that it has a duty to search out all severance
issues on its own, for fear of creating fundamental error.”).

¶18            Even if Lua could demonstrate error, he has not established
corresponding prejudice. “When a defendant challenges a denial of
severance on appeal, he ‘must demonstrate compelling prejudice against
which the trial court was unable to protect.’” State v. Murray, 184 Ariz. 9,
25, 906 P.2d 542, 558 (1995). “[A] defendant is not prejudiced by a denial
of severance where the jury is instructed to consider each offense
separately and advised that each must be proven beyond a reasonable
doubt.” State v. Johnson, 212 Ariz. 425, 430, ¶ 13, 133 P.3d 735, 740 (2006)
(internal citations omitted). The jury was so instructed here.

III.   Prosecutorial Vindictiveness

¶19           Due process protects a criminal defendant from
prosecutorial decisions “motivated by a desire to punish him for doing
something that the law plainly allowed him to do.” United States v.
Goodwin, 457 U.S. 368, 384 (1982). Prosecutors may not punish defendants
for exercising their legal rights by later subjecting them to more severe
charges. Id. at 372.

¶20          Lua did not claim prosecutorial vindictiveness in the trial
court. Our review is thus limited to fundamental error.

¶21            Nothing in the record supports Lua’s conclusory claim that
the State acted vindictively in charging him with weapons misconduct
after his first trial ended in a mistrial. Lua did nothing to cause the
mistrial, so there is no logical nexus between that occurrence and a
purported vindictive reaction by the State. Nor is Lua entitled to a
presumption of vindictiveness, which would shift the burden of proof to
the State. He offers no “realistic likelihood of vindictiveness,” see State v.
Mieg, 225 Ariz. 445, 448-49, ¶¶ 11-15, 239 P.3d 1258, 1261-62 (App. 2010),
but only speculative claims about the prosecutor’s motives. We find no
fundamental error arising from prosecutorial vindictiveness.

IV.    Witness Testifying in Prison Garb

¶22           Finally, Lua contends the trial court erred by denying a
motion to order jail personnel to provide an incarcerated defense witness
with civilian clothes to wear while testifying. The motion Lua relies on
was made in connection with his first trial. Lua does not identify where, if
ever, he renewed his request in connection with his second trial. At best,


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                            STATE v. LUA
                          Decision of the Court

we would review this claim for fundamental error. However, Lua did not
argue fundamental error in his opening brief and has therefore waived the
issue. See Moreno-Medrano, 218 Ariz. at 354, ¶¶ 16-17, 185 P.3d at 140;
Watson, 198 Ariz. at 51, ¶ 4, 6 P.3d at 755.

                            CONCLUSION

¶23          For the reasons stated, we affirm Lua’s convictions and
sentences.




                              :gsh




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