                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                   JERMAINE PLEDGER, Appellant.

                         No. 1 CA-CR 12-0604
                            FILED 1-8-2015


          Appeal from the Superior Court in Maricopa County
                       No. CR2011-005417-001
                The Honorable Robert E. Miles, Judge

                             AFFIRMED


                              COUNSEL

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

Maricopa County Public Defender, Phoenix
By Peg Green
Counsel for Appellant



                              OPINION

Judge John C. Gemmill delivered the opinion of the Court, in which
Presiding Judge Maurice Portley and Judge Kent E. Cattani joined.


G E M M I L L, Judge:
                            STATE v. PLEDGER
                            Opinion of the Court

¶1             We are asked to determine whether an aggravated assault
conviction may be enhanced under Arizona Revised Statutes (A.R.S.)
section 13-1204 for having been committed on a peace officer absent an
express finding that the defendant knew the victim was a peace officer.
Because we agree that the defendant’s knowledge that the victim was a
peace officer is not an element of the offense, we affirm Appellant Jermaine
Pledger’s conviction and sentence.1

                             BACKGROUND2

¶2            Pledger sought to purchase approximately 170 pounds of
marijuana from “Ruiz.” Ruiz, led by Pledger, drove a car containing the
marijuana into a residential garage. Pledger closed the garage door and as
Ruiz walked into the house, another person put a handgun in Ruiz’s chest
and told him it was “a rip,” meaning they were going to steal the marijuana.
Pledger and two other armed men then held Ruiz in the residence at
gunpoint. They were unaware at that point that Ruiz was a paid informant
working with an undercover police officer who was observing the
residence from an unmarked car parked up the street.

¶3            When the opportunity arose, Ruiz fled through the back door
of the residence. The three kidnappers then fled from the house; Pledger
and one accomplice left in Pledger’s car; and the third accomplice fled in
Ruiz’s car with the marijuana.

¶4            Ruiz ran to the undercover officer and informed him it was a
“drug rip.” The two then pursued Pledger’s vehicle and eventually found
it stopped in an industrial cul-de-sac. The officer stopped his vehicle near
the cul-de-sac, retrieved a bullet-proof vest from the trunk, and put it on in
a manner that he hoped would allow Pledger and his accomplice to see the
word “POLICE” emblazoned in yellow letters on the vest to discourage
Pledger and his accomplice from taking any action against them.



1 Pledger was also convicted and sentenced for conspiracy to possess
marijuana for sale, possession of marijuana for sale, armed robbery,
kidnapping, misconduct involving weapons, misconduct involving body
armor, and two counts of aggravated assault. We address his other
arguments on appeal in a separate memorandum decision filed
contemporaneously with this opinion. See Ariz. R. Crim. P. 31.26.

2We view the facts in the light most favorable to upholding the jury's
verdict. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983).


                                      2
                              STATE v. PLEDGER
                              Opinion of the Court

¶5            After the officer got back in his vehicle, Pledger drove straight
at him. As Pledger’s car approached, Pledger lowered his driver’s window,
held a gun out the window, and pointed it at the officer. Although the
officer feared that Pledger would shoot, Pledger drove past the officer’s
vehicle without firing. Other officers eventually apprehended Pledger.

        AGGRAVATED ASSAULT AS A CLASS TWO FELONY

¶6             Pledger argues the jury could not convict him of aggravated
assault as a class two felony because the State failed to prove that Pledger
knew the undercover officer was a peace officer engaged in the execution of
official duties. We disagree because the statutes at issue here — A.R.S. §§
13-1204(A)(2) and -1204(E) — do not require such proof.

¶7            To convict Pledger of aggravated assault as charged, the State
was required to prove that Pledger intentionally placed the victim in
reasonable apprehension of imminent physical injury and that he did so
with the use of a deadly weapon. A.R.S. § 13-1204(A)(2). To enhance that
offense from a class three felony to a class two felony under A.R.S. § 13-
1204(E), the State also had to prove the victim was a peace officer engaged
in the execution of official duties:

       Aggravated assault pursuant to subsection A, paragraph 1 or
       2 of this section committed on a peace officer while the officer
       is engaged in the execution of any official duties is a class 2 felony.

(Emphasis added).

¶8             Interpretation of a statute is a question of law we review de
novo. See Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996).
When interpreting a statute, we look to the plain language of the statute as
the best indicator of the drafter’s intent. Id. We give the words and phrases
of the statute their commonly accepted meaning unless the drafters provide
special definitions or a special meaning is apparent from the text. State v.
Barr, 183 Ariz. 434, 438, 904 P.2d 1258, 1262 (App. 1995). If the language is
clear and unambiguous, we give effect to that language and do not employ
other methods of statutory construction. State v. Riggs, 189 Ariz. 327, 333,
942 P.2d 1159, 1165 (1997). Additionally, “[i]n construing a legislative
enactment, we apply a practical and commonsensical construction.” State
v. Alawy, 198 Ariz. 363, 365, ¶ 8, 9 P.3d 1102, 1104 (App. 2000).

¶9           We conclude the language of the applicable statutes is clear
and unambiguous. In State v. Gamez, 227 Ariz. 445, 450, ¶ 30, 258 P.3d 263,
268 (App. 2011), this court noted that “[w]hen the legislature intends that


                                         3
                              STATE v. PLEDGER
                              Opinion of the Court

the mens rea apply to the status of the victim, it says so explicitly.” The
Gamez court found that the Arizona statute criminalizing sexual conduct
with a minor did not require proof that a defendant knew the victim was
under 18 at the time of the offense, and thus upheld the defendant’s
conviction notwithstanding the absence of a finding that the defendant
knew the victim was under age 18. Id. at 451, ¶ 38, 258 P.3d at 269.

¶10           Similarly, the statute at issue here does not require proof that
the defendant knew the victim’s status, in contrast with other statutes in
which the legislature has imposed such a requirement. For example, A.R.S.
§ 13-1204(A)(8)(a) defines as a class five felony the aggravated assault of a
peace officer that does not involve the use of a deadly weapon or result in
a serious injury, and the statutory language requires the State to prove the
defendant knew or had reason to know the victim was a peace officer
engaged in the execution of official duties.3 Similarly, under A.R.S. § 13-
2508(A), to obtain a class six felony conviction for resisting arrest, the State
must prove that the defendant reasonably knew that the arresting person
was a peace officer or was acting under the color of a peace officer’s official
authority.4 In contrast to §§ 13-1204(A)(8) and 13-2508(A), § 13-1204(E) does


3   Section 13-1204(A)(8)(a) provides:

        A person commits aggravated assault if the person commits
        assault as prescribed by § 13-1203 under any of the following
        circumstances: . . . [i]f the person commits the assault knowing or
        having reason to know that the victim is . . . [a] peace officer, or a
        person summoned and directed by the officer while engaged
        in the execution of any official duties.

(Emphasis added.)

4   Section 13-2508(A) provides:

        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.




                                          4
                            STATE v. PLEDGER
                            Opinion of the Court

not impose a mens rea requirement regarding the status of the victim as a
peace officer engaged in the execution of any official duties. See supra ¶ 7.
Therefore, based on the statutory language, we conclude that although the
victim’s status as a peace officer is an element of the enhanced offense,
Pledger’s knowledge of the victim’s status as a peace officer is not. See Gamez,
227 Ariz. at 450, ¶ 29, 258 P.3d at 268.

¶11          Relying on A.R.S. § 13-202(A), Pledger nevertheless argues
that a defendant’s knowledge that the victim was a peace officer engaged
in the execution of official duties is an element of the offense at issue.
Section 13-202(A) provides:

       If a statute defining an offense prescribes a culpable mental
       state that is sufficient for commission of the offense without
       distinguishing among the elements of such offense, the
       prescribed mental state shall apply to each such element
       unless a contrary legislative purpose plainly appears.

Pledger would have us interpret § 13-202(A) to add a new element to an
offense. We decline to do so. See State ex rel. Morrison v. Anway, 87 Ariz.
206, 209, 349 P.2d 774, 776 (1960) (this court “cannot read into a statute
something which is not within the manifest intention of the legislature as
gathered from the statute itself”).

¶12            Through A.R.S. § 13-1204(E), our legislature has expressed its
determination that aggravated assault committed with a deadly weapon
against a peace officer is an offense serious enough to warrant classification
as a class two felony, irrespective of whether the defendant knew the victim
was a peace officer. The legislature was free to do this, and application of
the statute does not violate principles of due process. See Gamez, 227 Ariz.
at 451, ¶ 37, 258 P.3d at 269 (“Due process requires only that the state prove
every element of a crime beyond a reasonable doubt.”) (emphasis in
original); see also United States v. Feola, 420 U.S. 671 (1975) (holding that


              2. Using any other means creating a substantial risk of
                 causing physical injury to the peace officer or
                 another.

              3. Engaging in passive resistance.

(Emphasis added.)




                                       5
                           STATE v. PLEDGER
                           Opinion of the Court

criminal responsibility for assault upon a federal undercover officer did not
depend on the defendant’s awareness of the victim’s employment status,
and noting that “[t]his interpretation poses no risk of unfairness to
defendants. It is no snare for the unsuspecting. Although the perpetrator
of a narcotics ‘rip-off,’ such as the one involved here, may be surprised to
find that his intended victim is a federal officer in civilian apparel, he
nonetheless knows from the very outset that his planned course of conduct
is wrongful.”).

                              CONCLUSION

¶13           The trial court correctly applied the applicable statutes. For
the reasons stated in this opinion and in the accompanying memorandum
decision, we affirm Pledger’s convictions and sentences.




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