                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                         DANNY JACOBS, Appellant.

                             No. 1 CA-CR 14-0433
                               FILED 11-19-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR 2013-425900-001
                The Honorable Teresa A. Sanders, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

DeBrigida Law Offices, Glendale
By Ronald M. DeBrigida, Jr.
Counsel for Appellant
                            STATE v. JACOBS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Peter B. Swann joined.


T H U M M A, Judge:

¶1           Danny Jacobs appeals his conviction and resulting sentence
for kidnapping, claiming the superior court erred by denying his motion
for judgment of acquittal and not using his requested definition of “shield”
in responding to a jury question. Because Jacobs has not shown error, his
conviction and resulting sentence are affirmed.

                FACTS1 AND PROCEDURAL HISTORY

¶2              Early one morning in June 2013, Jacobs and his live-in
girlfriend, S.W.,2 got into an argument in their house. The argument quickly
escalated into a physical fight, where Jacobs hit S.W. in the mouth.
Although the fight continued, sometime later that morning, S.W. left the
house, dropped her older daughter off at school and then called 9-1-1. Their
two year-old daughter, D.W., remained in the house with Jacobs. When
S.W. returned to the house accompanied by the police, Jacobs did not
answer the door. When officers attempted to open the door, Jacobs held the
lock and began to yell. Among other things, officers testified Jacobs yelled
that if officers came into his house, they “were going to have to kill him in
front of the child.” Jacobs remained in the house with D.W., while the
officers attempted to get D.W. out of the house and gain access to the house
for several hours. Eventually Jacobs was taken into custody and D.W. was
liberated without injury.




1On appeal, this court views the evidence in the light most favorable to
sustaining the conviction and resolves all reasonable inferences against the
defendant. State v. Karr, 221 Ariz. 319, 320 ¶ 2 (App. 2008).

2Initials are used to protect the victims’ privacy. State v. Maldonado, 206
Ariz. 339, 341 n.1 ¶ 2 (App. 2003).



                                     2
                            STATE v. JACOBS
                           Decision of the Court

¶3            Jacobs was charged with kidnapping, a Class 2 felony, a
domestic violence offense and a dangerous crime against children.3 After
the State rested in its case in chief, Jacobs unsuccessfully moved for a
judgment of acquittal, arguing the State had not offered sufficient evidence
Jacobs intended to use D.W. as a hostage, “a human shield” or for ransom,
an element of the kidnapping charge.

¶4             During deliberations, the jury provided the superior court a
note requesting a definition of “shield.” Based on State v. Stone, 122 Ariz.
304 (App. 1979), the court proposed responding to the question by directing
the jury that “shield” is defined as “[t]he holding or detaining of a person
by force as defense or potential protection against interception, interference
or retaliation by law enforcement personnel.” Jacobs did not object, and
later argued for the use of this definition. Although originally suggesting
the Stone definition, the State objected to the phrase “by force” in the
proposed response. After finding the statute construed in Stone was
different than the current kidnapping statute, and noting Stone did not
involve a child, over Jacobs’ objection, the court responded to the question
by directing the jury: “There is no statutory definition of the word ‘shield.’
Words of a statute are to be given their ordinary meaning. You are not to
consult a dictionary or any other outside source (see admonition previously
given).”

¶5            The jury did not seek further direction on the topic and, after
further deliberation, convicted Jacobs as charged. The superior court
sentenced Jacobs to 10 years in prison, a minimum term, crediting him with
369 days of presentence incarceration credit.4 This court has jurisdiction
over Jacobs’ timely appeal pursuant to the Arizona Constitution, Article 6,
Section 9, and Arizona Revised Statutes (A.R.S.) §§ 12-120.21(A)(1), 13-4031
and -4033(A) (2015).5




3 Jacobs was also charged with, and convicted of, assault, a Class 1
misdemeanor and a domestic violence offense, but he did not allege any
error regarding that conviction.

4 Although the record suggests that the proper presentence incarceration
credit may have been less than 369 days, there is no assertion on appeal that
the credit given was erroneous.

5Absent material revisions after the relevant dates, statutes and rules cited
refer to the current version unless otherwise indicated.

                                      3
                              STATE v. JACOBS
                             Decision of the Court

                                 DISCUSSION

I.     The Superior Court Properly Denied Jacobs’ Motion For Judgment
       Of Acquittal.

¶6             A superior court is directed to grant a motion for judgment of
acquittal “if there is no substantial evidence to warrant a conviction.” Ariz.
R. Crim. P. 20(a); see also State v. Lee, 189 Ariz. 608, 615 (1997). In considering
a motion for judgment of acquittal, “’the relevant question is whether, after
viewing the evidence in the light most favorable to the prosecution, any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt.’” State v. West, 226 Ariz. 559, 562 ¶ 16 (2011)
(citations omitted). This court reviews the sufficiency of the evidence de
novo, “viewing the evidence in a light most favorable to sustaining the
verdict.” State v. Bible, 175 Ariz. 549, 595 (1993).

¶7            Jacobs argues the State’s evidence was insufficient to prove
that he acted with the intent to hold his daughter “for ransom, as a shield
or hostage.” A.R.S. § 13-1304(A)(1). Jacobs claims “[t]here was no evidence
that [he], by word or deed, used his daughter to hold the police at bay,” so
there was no evidence that Jacobs intended to use her as a shield. The
evidence at trial, however, showed Jacobs did not leave the house or allow
his daughter out of the house for several hours, despite persistent requests
by the police that he do so. Multiple officers testified to Jacobs’ repeated
screams that they would have to kill him in front of his daughter if they
came into the house. At the very least, this evidence allowed the jury to infer
that Jacobs was holding his daughter “as a shield or hostage.” A.R.S. § 13-
1304(A)(1). “When reasonable minds may differ on inferences from the
facts, the case must be submitted to the jury, and the trial judge has no
discretion to enter a judgment of acquittal.” Lee, 189 Ariz. at 615. Thus, the
superior court did not err by denying Jacobs’ motion for judgment of
acquittal.

II.    The Superior Court Did Not Err In Responding To The Jury’s Note
       Requesting A Definition Of “Shield.”

¶8             Jacobs argues the superior court erred when it denied giving
Jacob’s definition of “shield” when responding to the jury’s request for a
definition of the term. The decision to instruct a jury further in response to
a question is within the superior court’s discretion. State v. Ramirez, 178
Ariz. 116, 126 (1994). Although a defendant is “entitled to an instruction on
any theory reasonably supported by the evidence,” State v. Tarr, 235 Ariz.
288, 293 ¶ 14 (App. 2014), the court need not define every word used in the



                                        4
                             STATE v. JACOBS
                            Decision of the Court

instructions, State v. Barnett, 142 Ariz. 592, 594 (1984). If a word is used in
its ordinary sense and is commonly understood, the court is not required to
provide a definition. Barnett, 142 Ariz. at 594. This court reviews a superior
court’s refusal to give a jury instruction for an abuse of discretion. See State
v. Moody, 208 Ariz. 424, 467 ¶ 197 (2004).

¶9            Conceding that “shield” is not defined by statute, Jacobs
argues the superior court committed reversible error in not giving the
definition provided in Stone. Stone, however, interpreted a now-superseded
kidnapping statute that arguably required a different mental state and
criminalized different conduct than current law. 122 Ariz. at 308.6 Even
then, Stone purported to state what the court thought “shield” “implies” in
the context of that superseded statute based on its “ordinary meaning.” Id.
at 309. In doing so, Stone never held the dictionary definition used was the
precise, or even only, definition of the word.

¶10           The superior court correctly instructed the jury that the word
“shield” is not defined by statute and that words in a statute are to be given
their ordinary meaning. See A.R.S. § 13-104. Moreover, the word “shield” is
not so technical that it acquired peculiar and appropriate meaning in the
law. See A.R.S. § 1-213. Accordingly, Jacobs has shown no error in the
superior court not defining the word for the jury. See, e.g., State v. Cox, 217
Ariz. 353, 356 ¶ 20 (2007) (no error by failing to define “control”); State v.
deBoucher, 135 Ariz. 220, 226 (App. 1982) (no error by failing to define
“endanger”).




6 Stone construed A.R.S. § 13-492(A) (1979), which stated: “A person . . .
who . . . kidnaps or carries away any individual by any means whatsoever
with intent to hold or detain, or who holds or detains any individual . . . as
a shield or hostage.” Jacobs, by contrast, was convicted of violating A.R.S.
§ 13-1304(A)(1), which states: “A person commits kidnapping by
knowingly restraining another person with the intent to . . . [h]old the
victim for ransom, as a shield or hostage.”

                                       5
                          STATE v. JACOBS
                         Decision of the Court

                           CONCLUSION

¶11          Because Jacobs has not shown the superior court erred, his
conviction and resulting sentence are affirmed.




                                :ama




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