                          NOTICE: NOT FOR PUBLICATION.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.

                       ERIK KARL OMAN, Appellant.

                             No. 1 CA-CR 12-0298
                               FILED 4-3-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2010-166177-001
               The Honorable Robert L. Gottsfield, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adriana M. Zick
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Cory Engle
Counsel for Appellant



                       MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Randall M. Howe joined.
                            STATE v. OMAN
                           Decision of the Court

G E M M I L L, Judge,

¶1           Erik Karl Oman appeals his conviction and sentence for
aggravated assault. He challenges the trial court’s order precluding
evidence of specific examples of his peaceful character and claims the
court erred in instructing the jury on the defensive display of a firearm.
Finding no error, we affirm.

                             BACKGROUND

¶2            We review the facts in the light most favorable to sustaining
the jury’s verdict. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185,
1189 (1989).

¶3           This case arises out of a road rage incident that occurred in
the evening of December 17, 2010. P.N. was waiting at a red light directly
behind Oman who was driving the first car in the lane. Oman was turned
around in his seat tending to his dogs in the back when the traffic signal
changed. P.N. “beeped” his horn to get Oman’s attention, and the two
proceeded to turn left.

¶4            As they then drove alongside each other, Oman was
gesturing to P.N., and he swerved into P.N.’s lane. After stopping next to
each other at another red light, Oman, who was on P.N.’s passenger side,
began yelling at P.N. that he “has his hand on his gun, and he’s going to
shoot [P.N.].”

¶5             The two men continued to “argu[e]” before Oman got out of
his vehicle, reached through P.N.’s front passenger window and pointed a
handgun at P.N.’s head. Oman tried to open the locked passenger door,
and P.N. saw the gun “in my face . . . pointed right at me.” Fearing for his
life because he thought Oman was going to shoot him, P.N. took his foot
off the brake so the forward motion of his truck would move Oman’s
hand and alter the direction of the pointed weapon. P.N. proceeded into
the intersection against the red light, turned right, and Oman ran
alongside the moving vehicle saying, “My finger’s on the trigger. I’m
going to shoot you.” P.N. sped away and both he and Oman called 911.
After police interviewed P.N. and Oman, Officer Bradbury arrested
Oman.

¶6            The State charged Oman with aggravated assault, a class
three dangerous felony, alleging he used his gun to intentionally place
P.N. in reasonable apprehension of imminent physical injury. See Ariz.
Rev. Stat. (“A.R.S.”) sections 13-1203(A)(2), -1204(A)(2). At trial, Oman


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                            STATE v. OMAN
                           Decision of the Court

testified he feared for his life when P.N. swerved toward him and “very
aggressively” cut him off. Oman denied pointing his gun at P.N. and
claimed he only told P.N. that he “carried” after he exited his vehicle at
the stoplight to talk to P.N. in an effort to “diffuse the situation.” 1 Oman
testified that, when someone is threatening him and he fears his life is in
danger, it was his “practice . . . to approach them to try to solve the
problem . . . .” To support this assertion, Oman sought to offer testimony
from two co-workers regarding specific incidents in which Oman
peacefully talked to others with whom he was having a dispute to prevent
escalating the issue. The court sustained the State’s objection under
Arizona Rule of Evidence (“Rule”) 405(b). After the close of evidence,
Oman requested the court amend its jury instruction regarding defensive
display of a firearm under A.R.S. § 13-421. The court ultimately denied
the requested instruction.

¶7            The jury found Oman guilty as charged, and the court
sentenced him to a mitigated term of five years in prison. 2 Oman
unsuccessfully moved for a new trial and a judgment of aquittal. This
timely appeal followed, and we have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1), 13-4031, and -4033(A).

                              DISCUSSION

       I. Testimony Regarding Specific Incidents of Peacefulness

¶8             Oman argues the superior court’s preclusion of evidence
regarding specific instances of his peaceful resolution of conflicts violated
his constitutional right to present a complete defense. He has failed,
however, to show the superior court abused its discretion on precluding
this evidence. See State v. Ayala, 178 Ariz. 385, 387, 873 P.2d 1307, 1309
(App. 1994) (“Decisions on the admission and exclusion of evidence are
left to the sound discretion of the trial court and will be reversed on
appeal only when they constitute a clear, prejudicial abuse of discretion.”)
(internal citations and quotations omitted).



1 Oman testified P.N. possibly saw the handgun holstered on Oman’s hip
under his jacket.

2According to the parties, Defendant was released from prison after the
Governor commuted his sentence on March 7, 2013.




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                              STATE v. OMAN
                             Decision of the Court

¶9            “A defendant’s right to present relevant evidence is not
unlimited, but rather is subject to reasonable restrictions,” including
application of reasonable rules governing the admissibility of evidence.
United States v. Scheffer, 523 U.S. 303, 308 (1998); see also State v. Dickens, 187
Ariz. 1, 14, 926 P.2d 468, 481 (1996) (“Although a defendant has a
fundamental constitutional right to . . . present a defense, the right is
limited to the presentation of matters admissible under ordinary
evidentiary rules . . . .”) abrogated on other grounds by State v. Ferrero, 229
Ariz. 239, 274 P.3d 509 (2012).

¶10          As relevant here, Rule 405, entitled “Methods of Proving
Character,” provides:

       (a) By reputation or opinion. When evidence of a person’s
       character or character trait is admissible, it may be proved
       by testimony about the person’s reputation or by testimony
       in the form of an opinion. . . .

       (b) By specific instances of conduct. When a person’s
       character or character trait is an essential element of a charge
       . . . the character or trait may also be proved by relevant
       specific instances of the person’s conduct.

¶11          In conformance with Rule 405(a), the jury heard evidence of
Oman’s peaceful character based on his own testimony in addition to the
opinion and reputation testimony provided by his co-workers. Oman
does not argue that his character or trait of character was an essential
element of the charge, and therefore specific instances of his peaceful
resolution of other disputes were not admissible under Rule 405(b).
Finally, Oman presented the following justification defense at trial:

        The defensive display of a firearm by a person against
       another is justified when and to the extent a reasonable
       person would believe that physical force is immediately
       necessary to protect himself against the use or attempted use
       of unlawful physical force or deadly physical force.

A.R.S. § 13-421(A). Oman’s peaceful character was not material to
determining whether he was objectively reasonable in displaying his
handgun to P.N., meaning his character or trait of character for
peacefulness was not an essential element of his justification defense.




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                             STATE v. OMAN
                            Decision of the Court

¶12           The court did not abuse its discretion in precluding evidence
of specific instances of Oman’s peacefulness under Rule 405, meaning
Oman was not denied his right to present a complete defense.

               II. Jury Instruction Regarding Justification

¶13            After the close of evidence, Oman requested the following
jury instruction:

      The defensive display of a firearm justification defense is
      applied in the following manner: If you find a gun was
      displayed by the defendant you then must determine
      whether the defendant was justified under the circumstances
      in doing so. If you determine he was justified that is a complete
      defense to the charge of aggravated assault and any lesser
      included offenses. If you determine he was not justified, the
      defensive display of a firearm justification defense does not
      apply.

(Emphasis added.)

¶14           The trial court ultimately rejected that instruction and
instead instructed the jury, in relevant part, as follows:

      Justification: Defensive Display of a Firearm

      The defendant is justified in defensively displaying a firearm
      if a reasonable person would have believed that physical
      force was immediately necessary to protect himself against
      the use or attempted use of unlawful physical force or
      deadly physical force.

      The defendant was not justified in displaying a firearm if:

             The defendant . . . [u]ses a firearm during the
             commission of any criminal act that results in . . .
             any criminal use of a deadly weapon or dangerous
             instrument. See instruction no. 15 for elements
             of the aggravated assault alleged in this case.

      Defensive display of a firearm includes:

             1. Verbally informing another person that the
             person possesses or has available a firearm.



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                            STATE v. OMAN
                           Decision of the Court

             2. Exposing or displaying a firearm in a
             manner that a reasonable person would
             understand was meant to protect the person
             against another's use or attempted use of
             unlawful physical force or deadly physical
             force.

             3. Placing the person's hand on a firearm while
             the firearm is contained in a pocket, purse or
             other means of containment or transport.

(Emphasis added.)      Oman contends that the instruction given was
improper.

¶15 We apply an abuse of discretion standard when reviewing a trial
court’s decision regarding jury instructions. State v. Cox, 214 Ariz. 518,
521, ¶ 16, 155 P.3d 357, 360 (App. 2007). A defendant is entitled to a jury
instruction on any theory reasonably supported by the evidence. State v.
Johnson, 205 Ariz. 413, 417, ¶ 10, 72 P.3d 343, 347 (App. 2003). The purpose
of jury instructions is to inform the jury of the applicable law. State v.
Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996). Thus, a trial
court acts within its discretion when it refuses an instruction that lacks a
factual or legal basis. State v. Vandever, 211 Ariz. 206, 208, ¶ 7, 119 P.3d
473, 475 (App. 2005). A set of instructions need not be faultless. The
instructions, however, must not mislead the jury and must give the jury
an understanding of the issues. See id.

¶16 Oman contended at trial that he was justified in defensively
displaying his handgun to protect himself against P.N.’s aggressive
driving. However, the statute that authorizes this justification expressly
“does not apply to a person who . . . [u]ses a firearm during the
commission of a serious offense as defined in § 13-706.” A.R.S. § 13-
421(B)(2).    Section 13-706 defines “serious offense” as including
“[a]ggravated assault . . . involving the . . . threatening exhibition of a
deadly weapon[.]” A.R.S. § 13-706(F)(1)(d). “Deadly weapon,” in turn
“means anything designed for lethal use, including a firearm,” A.R.S. § 13-
105(15), and a firearm includes “any loaded or unloaded handgun . . .
designed to . . . expel a projectile[.]” A.R.S. § 13-105(19).

¶17 Here, the instruction given properly reflects the concept contained
in § 13-421 that a person who has committed aggravated assault by using
a firearm in a threatening manner may not, under Arizona law, assert a
justification defense on the theory he or she was merely defensively



                                     6
                             STATE v. OMAN
                            Decision of the Court

displaying the weapon. Pursuant to the court’s instruction and based on
the trial evidence, the jury could have returned a not-guilty verdict had it
unanimously believed Oman’s testimony and concluded he defensively
displayed his handgun to P.N. in response to the latter’s unlawful use of
force against him. Alternatively, by applying the evidence to the same
instruction, the jury could (and apparently did) conclude Oman used his
gun in a threatening manner thereby resulting in an assault of P.N. and
precluding Oman from the defensive display justification defense.

¶18 The instruction requested by Oman, on the other hand, expressly
instructed the jury that defensive display of a firearm can be a “complete
defense to the charge of aggravated assault,” which directly contradicts §
13-421. Consequently, because the instruction given to the jury correctly
reflected applicable state law by closely tracking the language in § 13-421, 3

3   The complete text of A.R.S. § 13-421 reads as follows:

        A. The defensive display of a firearm by a person against
        another is justified when and to the extent a reasonable
        person would believe that physical force is immediately
        necessary to protect himself against the use or attempted use
        of unlawful physical force or deadly physical force.

        B. This section does not apply to a person who:

               1. Intentionally provokes another person to use
               or attempt to use unlawful physical force.

               2. Uses a firearm during the commission of a
               serious offense as defined in § 13-706 or violent
               crime as defined in § 13-901.03.

        C. This section does not require the defensive display of a
        firearm before the use of physical force or the threat of
        physical force by a person who is otherwise justified in the
        use or threatened use of physical force.

        D. For the purposes of this section, “defensive display of a
        firearm” includes:

               1. Verbally informing another person that the
               person possesses or has available a firearm.




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                           STATE v. OMAN
                          Decision of the Court

and Oman’s requested instruction did not correctly state the law, the court
did not abuse its discretion in instructing the jury.

                             CONCLUSION

¶19   Oman’s conviction and sentence are affirmed.




                               :MJT




             2. Exposing or displaying a firearm in a
             manner that a reasonable person would
             understand was meant to protect the person
             against another's use or attempted use of
             unlawful physical force or deadly physical
             force.

             3. Placing the person's hand on a firearm while
             the firearm is contained in a pocket, purse or
             other means of containment or transport.




                                      8
