                                     IN THE
              ARIZONA COURT OF APPEALS
                                DIVISION ONE


             MARK WILLIAM FRANKLIN, Plaintiff/Appellant,

                                       v.

           JASON JOHN CLEMETT, et al., Defendants/Appellees.

                            No. 1 CA-CV 15-0194
                             FILED 10-25-2016


           Appeal from the Superior Court in Maricopa County
                          No. CV2010-033437
                The Honorable Dawn M. Bergin, Judge

                                 AFFIRMED


                                     COUNSEL

Knapp & Roberts, P.C., Scottsdale
By David L. Abney
Co-Counsel for Plaintiff/Appellant

Harris, Powers & Cunningham, P.L.L.C., Phoenix
By Joseph D’Aguanno, Frank I. Powers
Co-Counsel for Plaintiff/Appellant

Karen L. Lugosi, P.C., Phoenix
By Karen L. Lugosi
Co-Counsel for Plaintiff/Appellant
Jones, Skelton & Hochuli, P.L.C., Phoenix
By William D. Holm, Jonathan P. Barnes, Jr.
Co-Counsel for Defendants/Appellees

Hill, Hall & DeCiancio, P.L.C., Phoenix
By R. Corey Hill, Ginette M. Hill, Christopher Robbins
Co-Counsel for Defendants/Appellees




                                 OPINION

Presiding Judge Patricia K. Norris delivered the opinion of the Court, in
which Judge Samuel A. Thumma and Judge Margaret H. Downie joined.


N O R R I S, Judge:

¶1            The controlling issues in this case are whether the affirmative
defense of intoxication established by Arizona Revised Statutes (“A.R.S.”)
section 12-711 (2016) violates the contributory negligence and anti-
abrogation provisions of the Arizona Constitution, conflicts with Arizona’s
comparative fault statutes, or is unconstitutionally vague. We hold A.R.S. §
12-711 is not unconstitutionally or statutorily infirm and, accordingly,
affirm the superior court’s judgment.

             FACTS AND PROCEDURAL BACKGROUND1

¶2            On February 14, 2009, Plaintiff/Appellant Mark William
Franklin and Defendants/Appellees, Jason John Clemett, Jason’s wife, and
their friend Daniel Blanchard (collectively, “Defendants”) were spectators
at a hockey game. During the game, Franklin began to yell profanities and
insults at the defendants. Franklin, who was intoxicated, eventually
climbed over several rows of seats and stopped two rows above where the
Defendants were seated. Blanchard felt a “thud” on his head. His head
began to hurt, and he discovered he was bleeding. Blanchard turned
around and saw Franklin making obscene gestures and acting “out of
control.” Franklin started to walk back to his seat, but then returned to
where he had been standing above the Defendants. To try to stop Franklin

              1We   view the trial evidence in the light most favorable to
sustaining the jury’s verdict. Gonzales v. City of Phoenix, 203 Ariz. 152, 153,
¶ 2, 52 P.3d 184, 185 (2002).


                                      2
                       FRANKLIN v. CLEMETT et al.
                          Opinion of the Court

from moving any closer to them, Blanchard punched Franklin in the head.
Franklin then spit on the Clemetts, and Jason Clemett responded by
punching Franklin twice in the head.

¶3            Franklin sued the Defendants, as relevant here, for
negligence. At trial, the Defendants argued Franklin had provoked the
altercation and was 100% at fault under comparative fault principles. Over
Franklin’s objection, the Defendants also raised the affirmative defense of
intoxication under A.R.S. § 12-711 (“intoxicating liquor defense”). Section
12-711 reads as follows:

              In any civil action, the finder of fact may find the
              defendant not liable if the defendant proves that
              the claimant or, if the claimant is an heir or the
              estate of a deceased person, the decedent was
              under the influence of an intoxicating liquor or
              a drug and as a result of that influence the
              claimant or decedent was at least fifty per cent
              responsible for the accident or event that caused
              the claimant’s or decedent’s harm.

¶4           Substantially tracking the language of A.R.S. § 12-711, the
superior court included the following instruction in its final instructions to
the jury:

              If Jason Clemett or Daniel Blanchard proves that
              Plaintiff Mark Franklin was under the influence
              of an intoxicating liquor, and as a result of that
              influence, Mark Franklin was at least fifty
              percent (50%) responsible for the incident or
              event that caused his injuries, you may find
              Defendant Jason Clemett and Defendant Daniel
              Blanchard not liable to Mark Franklin.

The jury subsequently returned a general verdict in the Defendants’ favor.




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                       FRANKLIN v. CLEMETT et al.
                          Opinion of the Court

                               DISCUSSION2

I.     Section 12-711 and Article 18, Section 5, of the Arizona Constitution

¶5             Franklin argues the superior court should not have instructed
the jury on the intoxicating liquor defense because A.R.S. § 12-7113 violates
Article 18, § 5 of the Arizona Constitution. According to Franklin, A.R.S. §
12-711 is unconstitutional because it compels or at least invites a jury to find
a defendant not liable based on proof that the plaintiff was 50% at fault even
though Article 18, § 5 grants the jury unlimited discretion to determine the
existence and effect of a plaintiff’s contributory negligence. Exercising de
novo review, we hold A.R.S. § 12-711 does not violate Article 18, § 5. See
State ex rel. Montgomery v. Rogers, 237 Ariz. 419, 421, ¶ 8, 352 P.3d 451, 453
(App. 2015) (appellate court reviews de novo whether jury instruction
correctly states the law) (citation omitted); Niehaus v. Huppenthal, 233 Ariz.
195, 197, ¶ 5, 310 P.3d 983, 985 (App. 2013) (appellate court reviews
constitutionality of a statute de novo). 4


              2In a separate memorandum decision, Franklin v. Clemett et al.,
1 CA-CV 15-0194 (Ariz. App. October 25, 2016), filed simultaneously with
this opinion, see Ariz. R. Sup. Ct. 111 and Arizona Rule of Civil Appellate
Procedure (“ARCAP”) 28, we reject Franklin’s remaining arguments and
provide additional factual and procedural history.

              3We   cite to the current version of all statutes cited in this
opinion because the Legislature has not materially amended them since the
time of the altercation, the event giving rise to this action.

              4Given  the general verdict, Defendants argue we do not need
to address the constitutionality of A.R.S. § 12-711 because the jury could
have found for them for reasons unrelated to the intoxicating liquor
defense. When, as in this case, a party is challenging the legality of a jury
instruction under Article 18, § 5, Arizona appellate courts have addressed
the challenge even though the jury returned a general verdict and its verdict
could have been based on other theories or defenses. See Estate of Reinen v.
N. Ariz. Orthopedics, Ltd., 198 Ariz. 283, 290-91, ¶¶ 26-28, 9 P.3d 314, 321-22
(2000) (defense verdict vacated and remanded for new trial after jury
improperly instructed on assumption of risk in medical malpractice action;
court would not assume erroneous instruction did not affect the jury’s
deliberations); Salt River Project Agric. Improvement & Power Dist. v.
Westinghouse Elec. Corp., 176 Ariz. 383, 861 P.2d 668 (App. 1993) (addressing



                                       4
                        FRANKLIN v. CLEMETT et al.
                           Opinion of the Court

¶6              “The defense of contributory negligence or of assumption of
risk shall, in all cases whatsoever, be a question of fact and shall, at all times,
be left to the jury.” Article 18, § 5. As our supreme court has explained, this
provision was designed to ameliorate the harsh consequences of the
doctrine of contributory negligence—under which a negligent plaintiff
could be barred from any recovery even if his negligence was slight—by
requiring the jury to be the sole arbiter of the existence or nonexistence of
contributory negligence. Hall v. A.N.R. Freight Sys., Inc., 149 Ariz. 130, 132-
33, 717 P.2d 434, 436-37 (1986).

¶7              Article 18, § 5 does not guarantee the existence of contributory
negligence as a defense, however. Id. at 134, 717 P.2d at 438. Instead, Article
18, § 5 is a procedural guarantee, and prescribes the procedure that must be
followed if contributory negligence or assumption of risk is asserted as a
defense. Id. at 134-35, 717 P.2d at 438-39. Thus, “whenever and in whatever
form the [contributory negligence] defense is permitted to exist, a fact
question arises that ’shall, at all times, be left to the jury.’” Williams v. Thude,
188 Ariz. 257, 259, 934 P.2d 1349, 1351 (1997) (emphasis added).
Accordingly, the Legislature may modify or abolish contributory
negligence. Hall, 149 Ariz. at 135, 717 P.2d at 439 (citation omitted).

¶8            In 1984, the Legislature enacted the Uniform Contribution
Among Tortfeasors Act (“UCATA”) and adopted comparative fault. Id. at
131, 717 P.2d at 435; 1984 Ariz. Sess. Laws, ch. 237, § 1 (codified at A.R.S. §
12-2505 (2016)). In so doing, the Legislature “strip[ped] contributory
negligence of its obnoxious common law consequences,” but retained the
“idea of contributory fault.” Hall, 149 Ariz. at 135, 717 P.2d at 439. As the
supreme court explained in Hall, comparative negligence is a way of
dealing with a plaintiff’s contributory fault, and contributory and
comparative negligence operate in tandem. Id. at 135-36, 717 P.2d at 439-40.
While a jury

               can no longer apply contributory negligence as
               an automatic bar to recovery, the question of
               whether contributory negligence exists is still a
               threshold issue which must be resolved by the
               jury. The application of comparative negligence
               is not triggered until the jury determines that


constitutionality of erroneous instruction under Article 18, § 5 even though
jury returned general verdict for the defense and could have found for
prevailing party on basis not affected by the error).



                                         5
                       FRANKLIN v. CLEMETT et al.
                          Opinion of the Court

              contributory negligence exists. Thus the
              existence of contributory negligence is a
              prerequisite to the exercise of comparative
              negligence.    The     jury’s  constitutionally
              protected right to determine the existence or
              nonexistence of contributory negligence, when
              asserted, remains the threshold determination
              triggering application of [UCATA].

 Id. at 136, 717 P.2d at 440 (citation omitted). Therefore, in a negligence case,
“the jury is the sole arbiter of fact and law as to the defenses of contributory
and comparative negligence.” Gunnell v. Ariz. Pub. Serv. Co., 202 Ariz. 388,
394, ¶ 23, 46 P.3d 399, 405 (2002) (citation omitted).

¶9            In accordance with the foregoing principles, Arizona courts
have consistently held that statutes barring liability under statutory or
common law principles based on a plaintiff’s contributory negligence or
assumption of risk violate Article 18, § 5. Id. at 394-95, ¶¶ 24-25, 46 P.3d at
405-06 (Legislature may not negate Article 18, § 5 by decreeing that “a
negligent actor whose conduct was a cause of injury was the sole cause of
the injurious event”); City of Tucson v. Fahringer, 164 Ariz. 599, 601-02, 795
P.2d 819, 821-22 (1990) (statute may not provide that “antecedent conduct”
of person injured is absolute bar to recovery of damages from person
otherwise liable for the injury under either statutory or common law
principles); Schwab v. Matley, 164 Ariz. 421, 423-25, 793 P.2d 1088, 1090-92
(1990) (same); Sonoran Desert Investigations, Inc., v. Miller, 213 Ariz. 274, 141
P.3d 754 (App. 2006) (same). Similarly, jury instructions which compel,
direct, or require the jury to find for the defendant if it finds the plaintiff
was negligent or assumed the risk also violate Article 18, § 5. Salt River
Project, 176 Ariz. at 386, 861 P.2d at 671.

¶10            In contrast, statutes that do not bar a negligent plaintiff from
all recovery, but allow the jury to exercise discretion in deciding the
existence and effect of a plaintiff’s negligence will not run afoul of Article
18, § 5. See Williams, 188 Ariz. at 259, 934 P.2d at 1351 (although legislature
may eliminate contributory negligence “altogether,” Article 18, § 5 requires
that “whenever and in whatever form the defense is permitted to exist, a
fact question arises that ‘shall, at all times, be left to the jury’”). Likewise,
jury instructions that are “permissive and leave the plaintiff’s recovery to
the discretion of the jury if it finds that the plaintiff was negligent or
assumed the risk” also pass muster under Article 18, § 5. Salt River Project,
176 Ariz. at 386, 861 P.2d at 671 (quoting permissive instructions, such as
“‘[p]laintiff may not be entitled to recover and your verdict may be for the


                                       6
                       FRANKLIN v. CLEMETT et al.
                          Opinion of the Court

defendant,’” “‘[y]our verdict may, but need not be, in favor of Defendants’”)
(citations omitted).

¶11            On its face, A.R.S. § 12-711 is permissive. Contrary to
Franklin’s argument, a fact finder “may,” but is not compelled to, find a
defendant not liable if it finds the plaintiff was under the influence of an
intoxicating liquor and as a result was at least 50% responsible for the event
that caused his or her harm. Section 12-711 does not, therefore, violate
Article 18, § 5, and the superior court’s instruction to the jury was proper.

¶12            Section 12-711 also does not, as Franklin argues,
unconstitutionally “invite” the jury to render a defense verdict by focusing
its attention on the plaintiff’s conduct and “imply[ing] to jurors that there
is something significant about a 50% finding.” Although A.R.S. § 12-711
calls the jury’s attention to the plaintiff’s conduct, it does not attempt to
control the jury’s decision-making or deprive a plaintiff of a recovery. At
most, it encourages the jury to consider the plaintiff’s conduct in deciding
whether to award the plaintiff damages under comparative fault principles.
As our supreme court recognized in discussing a statute that works in the
same manner, such an attempt, by itself, does not violate Article 18, § 5.

¶13            Specifically, in Williams, 188 Ariz. at 260, 934 P.2d at 1352, our
supreme court addressed how a jury should be instructed under A.R.S. §
12-2505(A) when there is evidence that the plaintiff’s willful or wanton
conduct contributed to the plaintiff’s injuries. In addition to implementing
comparative fault, that statute precludes comparative negligence in favor
of a plaintiff who has acted willfully or wantonly. See A.R.S. § 12-2505(A)
(claimant has “no right to comparative negligence” if claimant has
“intentionally, willfully or wantonly caused or contributed to the injury or
wrongful death”). Thus, similar to A.R.S. § 12-711, A.R.S. § 12-2505(A) calls
a jury to consider a plaintiff’s conduct under comparative fault principles.
The supreme court rejected the argument that in calling the jury’s attention
to the plaintiff’s conduct, A.R.S. § 12-2505(A) violated Article 18, § 5. The
court explained:

              [The statute] does not purport to exterminate all
              species of contributory negligence . . . .
              Moreover, the statute does not say that the
              wantonly negligent plaintiff is barred from all
              recovery . . . . Instead, it only attempts to deprive
              such a plaintiff of any benefits that might flow
              from an application of comparative principles.
              At best, then, the statute can be said to have


                                       7
                       FRANKLIN v. CLEMETT et al.
                          Opinion of the Court

              merely modified the contributory negligence
              defense.

Williams, 188 Ariz. at 259, 934 P.2d at 1351.

¶14          The court then approved an instruction that told the jurors
“that even though they should not compare fault, they are free to do
whatever they choose with respect to the plaintiff’s conduct”:

              If you find that Plaintiff willfully or wantonly
              caused Plaintiff’s injury, and that Defendant
              was at fault (but not willfully or wantonly), then
              you should not determine relative degrees of
              fault, however you may find for the Defendant
              or for the Plaintiff as you see fit.

Id. at 258-60, 934 P.2d at 1350-52.

¶15            Similar to A.R.S. § 12-2505(A), A.R.S. § 12-711 invites the jury
to consider the plaintiff’s conduct under comparative fault principles, but
it does not directly or indirectly tell the jury it must find the plaintiff’s
conduct bars all recovery.5 Accordingly, A.R.S. § 12-711 does not violate
Article 18, § 5.

II.    Section 12-711 and Article 18, Section 6, of the Arizona Constitution

¶16            Franklin also argues A.R.S. § 12-711 encourages a jury to deny
a plaintiff recovery if it finds the plaintiff is 50% at fault and, thus, the
statute effectively abrogates a plaintiff’s right of recovery in violation of the
anti-abrogation clause in Article 18, § 6 of the Arizona Constitution. Article
18, § 6 provides that “[t]he right of action to recover damages for injuries
shall never be abrogated, and the amount recovered shall not be subject to

              5At   oral argument in this court, Franklin argued A.R.S.
§ 12-2505(A), which focuses on willful and wanton conduct by a plaintiff, is
not comparable to A.R.S. § 12-711’s focus on a plaintiff’s intoxication
because willful or wanton conduct is akin to intentional misconduct and
not a form of negligence. Our supreme court has recognized, however, that
willful or wanton conduct is a form of negligence. Williams, 188 Ariz. at 259,
934 P.2d at 1351; DeElena v. S. Pac. Co., 121 Ariz. 563, 566, 592 P.2d 759, 762
(1979); see also A.R.S. § 12-2506(F)(2) (2016) (defining fault under UCATA as
including “negligence in all its degrees”). Thus, A.R.S. § 12-2505(A) does
address negligent conduct by a plaintiff and, accordingly, is an appropriate
analogue to A.R.S. § 12-711.


                                       8
                       FRANKLIN v. CLEMETT et al.
                          Opinion of the Court

any statutory limitation . . . .” Exercising de novo review, see supra ¶ 5, we
hold the instruction did not violate Article 18, § 6.

¶17            Article 18, § 6 prohibits the abrogation of common law
negligence actions. Baker v. Univ. Physicians Healthcare, 231 Ariz. 379, 387-
88, ¶ 34, 296 P.3d 42, 50-51 (2013) (citation omitted). The constitutional
provision does not, however, prevent the Legislature from regulating a
common law negligence claim as long as it leaves reasonable alternatives
permitting a claimant to bring such a claim. Id. at 388, ¶¶ 34-35, 296 P.3d at
51 (statute setting qualification standards for admissibility of expert
testimony on standard of practice or care did not violate Article 18, § 6)
(citations omitted); Romero v. Sw. Ambulance, 211 Ariz. 200, 205, ¶ 12, 119
P.3d 467, 472 (App. 2005) (Article 18, § 6 permits regulation) (citations
omitted). A statute abrogates a cause of action if it bars a cause of action
before it can be brought. Watts v. Medicis Pharm. Corp., 239 Ariz. 19, 27, ¶ 26,
365 P.3d 944, 952 (2016) (citation omitted).

¶18           As we explained in Romero, A.R.S. § 12-711 does not bar a
plaintiff from pursuing any claim, remove the question of liability from the
jury, or require a jury to take a particular action. Romero, 211 Ariz. at 205, ¶
11, 119 P.3d at 472 (citations omitted). Section 12-711 does not, therefore,
violate Article 18, § 6.

¶19             Franklin nevertheless argues Romero failed to appreciate that
A.R.S. § 12-711 “effectively” abrogates a claimant’s claim because it
instructs the jury that if it finds what Franklin characterizes as an arbitrary
percentage of fault, 50%, it may deprive the claimant of any recovery. See
generally Barrio v. San Manuel Div. Hosp., 143 Ariz. 101, 106, 692 P.2d 280, 285
(1984) (Legislature “may not, under the guise of ‘regulation,’ so affect the
fundamental right to sue for damages as to effectively deprive the claimant
of the ability to bring the action”) (citation omitted).

¶20            A statute does not “effectively” abrogate a claim, however, by
making it more difficult for the claimant to obtain a recovery or even when,
in the claimant’s view, it may weaken the claimant’s case. See State Farm Ins.
Co. v. Premier Manufactured Sys., Inc., 217 Ariz. 222, 229, ¶¶ 35-37, 172 P.3d
410, 417 (2007) (rejecting argument that A.R.S. § 12-2506, which abolished
joint and several liability in strict products liability cases, violates Article
18, § 6; abolishing joint and several liability in such cases will not make it
impossible for the finder of fact to allocate fault among the participants in
the chain of distribution of a defective product, even though it may be
difficult to do so in some circumstances); Governale v. Lieberman, 226 Ariz.
443, 447-48, ¶¶ 8-11, 250 P.3d 220, 224-25 (App. 2011) (statute limiting


                                       9
                       FRANKLIN v. CLEMETT et al.
                          Opinion of the Court

potential expert witnesses a plaintiff may use did not effectively abrogate
plaintiff’s right of recovery even if, from plaintiff’s perspective, it weakened
his case by preventing him from using his chosen expert).

¶21           Here, as discussed, A.R.S. § 12-711 focuses on a plaintiff’s
conduct under comparative fault principles. But it does not prevent a
plaintiff from obtaining a recovery or “so affect the fundamental right to
sue for damages as to effectively deprive the claimant of the ability to bring
the action.” Barrio, 143 Ariz. at 106, 692 P.2d at 285 (citation omitted).
Accordingly, as we held in Romero, A.R.S. § 12-711 does not violate Article
18, § 6.

III.   Section 12-711 and UCATA

¶22            Franklin argues A.R.S. § 12-711 conflicts with UCATA’s
requirement that the jury “shall” assess the percentage of fault of each
person who contributed to the alleged injury, see A.R.S. § 12-2506(B),
because it “acts as a trigger” for the jury to assess all fault against the
plaintiff, even if the plaintiff was only 50% at fault. As discussed, however,
A.R.S. § 12-711 is permissive. See supra ¶¶ 10-11. Thus, the statute does not
restrict the jury’s power to consider and assess the fault of all those who
contributed to the alleged injury.

IV.    Section 12-711 and Vagueness

¶23            Franklin argues A.R.S. § 12-711 is void for vagueness because
the statute fails to define “under the influence” of an intoxicating liquor and
thus, a jury is left to speculate on the meaning of “under the influence.”
Section 12-711, however, is not unconstitutionally vague.

¶24            A statute is not void for vagueness simply because it does not
define its terms. Rather, a statute is void for vagueness if it does not give a
person of “ordinary intelligence a reasonable opportunity to know what is
prohibited and fails to contain explicit standards of application to prevent
arbitrary and discriminatory enforcement.” State v. Poshka, 210 Ariz. 218,
220, ¶ 5, 109 P.3d 113, 115 (App. 2005) (quotations omitted) (citing Grayned
v. City of Rockford, 408 U.S. 104, 108–09, 92 S. Ct. 2294, 2298–99, 33 L. Ed. 2d
222, 227 (1972)); State v. Brown, 207 Ariz. 231, 237, ¶ 16, 85 P.3d 109, 115
(App. 2004); see Verma v. Stuhr, 223 Ariz. 144, 152, ¶ 29, 221 P.3d 23, 31 (App.
2009) (statute must provide person of ordinary intelligence notice of
conduct prohibited or required). Section 12-711 meets these requirements.

¶25           In 1927, Arizona’s DUI laws began to use the phrase “under
the influence.” Hasten v. State, 35 Ariz. 427, 430-31, 280 P. 670, 671 (1929)


                                      10
                       FRANKLIN v. CLEMETT et al.
                          Opinion of the Court

(discussing Laws 4th Sp. Sess. 1927, c. 2, subc. 6, § 1); see also A.R.S. § 28-
1381(A) (2012). And, in 1929, Arizona courts began to consistently interpret
that phrase as meaning intoxicated “in the slightest degree.” Weston v. State,
49 Ariz. 183, 186-89, 65 P.2d 652, 654-55 (1937); Hasten, 35 Ariz. at 430-31,
280 P. at 671; State v. Parker, 136 Ariz. 474, 474-75, 666 P.2d, 1083, 1083-84
(App. 1983). Beginning with our supreme court’s decision in Hasten,
Arizona courts have consistently recognized that people of ordinary
intelligence are able to understand what intoxicated in the slightest degree
means, and that a person is intoxicated in the slightest degree when that
person “is to some degree at least less able, either mentally or physically or
both, to exercise the clear judgment and steady hand necessary” to drive an
automobile. Hasten, 35 Ariz. at 431, 280 P. at 671; Weston, 49 Ariz. at 187, 65
P.2d at 654 (intoxicated in the slightest degree commonly understood as
referring to a person “‘so affected by intoxicating liquor as not to possess
that clearness of intellect and control of himself that he otherwise would
have . . . . ’”) (quoting State v. Graham, 222 N.W. 909, 911 (Minn. 1929)).

¶26            Franklin argues, however, that we should ignore the long
established and commonly understood meaning of “under the influence,”
as intoxicated in the slightest degree, because the Legislature created that
standard in the context of Arizona’s DUI laws and adopted that standard
to protect the public’s safety. Although A.R.S. § 12-711 is neither a DUI law
nor a public safety statute, Franklin’s argument ignores the essential point
recognized by our supreme court beginning with Hasten—that “under the
influence” is commonly understood to mean intoxicated in the slightest
degree. Further, Franklin has not demonstrated that this common
understanding differs depending on context.

¶27          Finally, Franklin argues “under the influence” is void for
vagueness because it may mean different things to different people.6 As
long as a statute allows a person of ordinary intelligence to reasonably
understand what is prohibited or required and does not allow for arbitrary
or discriminatory enforcement, it will not be considered unconstitutionally
vague even if it is susceptible to different interpretations. State v. Putzi, 223




              6For example, Franklin cites Black’s Law Dictionary (10th ed.
2014) for the definition of “under the influence,” as “deprived of clearness
of mind and self-control because of drugs or alcohol.” Franklin also cites
other definitions found in non-legal dictionaries: “affected by alcoholic
drink” or “drunk”; “intoxicated, especially with alcohol”; “in an intoxicated
condition”; and “implies that one is not completely drunk.”


                                       11
                       FRANKLIN v. CLEMETT et al.
                          Opinion of the Court

Ariz. 578, 579, ¶ 4, 225 P.3d 1154, 1155 (App. 2010) (quotations and citations
omitted).

¶28            State v. Coulter, 236 Ariz. 270, 339 P.3d 653 (App. 2014),
illustrates these points. There, the defendant argued the aggravating
circumstance of “emotional harm” listed in A.R.S. § 13-701(D)(9) (2014) was
vague because the statute did not define it and it could mean different
things to different people. Id. at 273-74, ¶¶ 4-7, 339 P.3d at 656-57. We held
“emotional harm” was not void for vagueness. Id. at 274, ¶ 7, 339 P.3d at
657. We explained “emotional harm” had a commonly understood
meaning, and observed that a statute is not vague even though it is broad
and it may be difficult to decide whether certain marginal conduct falls
within it. Id.

¶29           Here, as in Coulter, “under the influence” has a commonly
understood meaning and, although different people may evaluate “under
the influence” in different ways, that by itself does not make A.R.S. § 12-711
void for vagueness. See Putzi, 223 Ariz. at 579, ¶ 4, 225 P.3d at 1155. And, as
we explain below, this is not a case in which the jury was presented with
marginal conduct. The Defendants presented ample evidence from which
the jury could have found that Franklin was “under the influence” as
defined by our DUI statutes or by any of the other definitions cited by
Franklin.

V.     Sufficiency of the Evidence

¶30           Franklin argues the superior court should not have instructed
the jury on the intoxicating liquor defense because the Defendants did not
present any competent evidence he was under the influence of an
intoxicating liquor. In making this argument, he stresses he was not
subjected to a blood or breath test that would have measured the alcohol
concentration of his blood, and points out that under our state DUI laws, a
person who has a blood alcohol concentration within two hours of driving
of .05 or less is presumed to not be under the influence. A.R.S.
§ 28-1381(G)(1). We reject this argument for several reasons.

¶31           First, A.R.S. § 12-711 does not require proof of a person’s
blood alcohol concentration. Second, the statutory presumption created by
A.R.S. § 28-1381(G)(1) has no application in this case, and even if it did, the
presumption does not limit a party from introducing other competent
evidence showing that a person was under the influence. Indeed, A.R.S. §
28-1381(H) expressly states that the statutory presumption “does not limit
the introduction of any other competent evidence bearing on the question



                                      12
                       FRANKLIN v. CLEMETT et al.
                          Opinion of the Court

of whether or not the defendant was under the influence of intoxicating
liquor.”

¶32             Third, the Defendants presented ample evidence Franklin
was under the influence of an intoxicating liquor before the altercation. At
trial, a detective, who worked as a security guard at the arena on the night
of the altercation and had DUI training, testified he “detected a moderate
to strong odor” of alcohol on Franklin’s breath and that Franklin “appeared
to be somewhat under the influence of alcohol.” The detective described
Franklin as being in the “middle” of a spectrum of being under the
influence. The detective also testified, without objection, that a witness to
the altercation described Franklin as a “loud drunk.”

¶33          Another witness testified he saw Franklin drinking alcohol
during the game and described him as being loud and obnoxious. And a
third witness, who was sitting behind Clemett and Blanchard, testified
Franklin appeared intoxicated and exhibited no self-control.

¶34            Given this evidence, the superior court properly instructed
the jury on the intoxicating liquor defense. A Tumbling-T. Ranches v. Flood
Control Dist. of Maricopa Cty., 222 Ariz. 515, 533-34, ¶ 50, 217 P.3d 1220, 1238-
39 (App. 2009) (party entitled to have the jury instructed on any theory
reasonably supported by evidence) (citation omitted); State v. Johnson, 205
Ariz. 413, 417, ¶ 10, 72 P.3d 343, 347 (App. 2003) (appellate court reviews
superior court’s decision to give an instruction for abuse of discretion).

                               CONCLUSION

¶35          For the foregoing reasons, we affirm the superior court’s
judgment in favor of the Defendants. As the prevailing parties on appeal,
we award the Defendants their costs on appeal contingent upon their
compliance with ARCAP 21.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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