                          NOTICE: NOT FOR PUBLICATION.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.

                     RICKY LLOYD LEIBLY, Appellant.

                             No. 1 CA-CR 14-0170
                               FILED 12-16-2014


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201300679
             The Honorable Stephen J. Rouff, Judge Pro Tem

                                  AFFIRMED


                                   COUNSEL

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

Terry Capozzi, Esq., Yuma
By Terry Capozzi
Counsel for Appellant
                             STATE v. LEIBLY
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Patricia K. Norris delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge John C. Gemmill joined.


N O R R I S, Judge:

¶1             This appeal arises out of Ricky Lloyd Leibly’s convictions and
sentences for aggravated assault, a Class 3 felony, possession of marijuana
for sale, a Class 4 felony, and possession of drug paraphernalia, a Class 6
felony. On appeal, Leibly challenges only his conviction for aggravated
assault, arguing the superior court committed fundamental error when it
did not instruct the jury on self-defense and defense of premises.1 In
response, the State argues, first, Leibly “affirmatively state[d] that he was
not requesting a justification instruction,” and thus invited any alleged
error and therefore waived this argument on appeal; and second, even if
Leibly did not invite the alleged error, he is unable to show fundamental
error and resulting prejudice. We agree with the State’s first argument that
by affirmatively stating he did not want an instruction on self-defense Leibly
invited any alleged error as to that instruction and has waived that
argument on appeal. We also agree with the State’s second argument, and
although Leibly did not refuse an instruction on defense of premises, he is
unable to show fundamental error and resulting prejudice. Thus, we affirm
Leibly’s convictions and sentences.

I.     Self-Defense Instruction and Invited Error

¶2            When a defendant “invites” an error, we do not conduct a
fundamental error review, and we will not reverse such an error on appeal.
State v. Logan, 200 Ariz. 564, 565–66, ¶ 9, 30 P.3d 631, 632–33 (2001). To
decide whether a party invited the error, we must determine whether the
party complaining of the error is also the party who “was the source of” or
caused the error. Logan, 200 Ariz. at 566, ¶ 11, 30 P.3d at 633; see also State


              1In  his opening brief Leibly argues the court committed error
by failing to instruct the jury in “defense of property.” His argument and
citation, however, refer to Arizona Revised Statutes (“A.R.S.”) section 13-
407 (2010), which describes the justification defense for use of physical force
in “defense of premises.”



                                      2
                             STATE v. LEIBLY
                            Decision of the Court

v. Lucero, 223 Ariz. 129, 138, ¶ 32, 220 P.3d 249, 258 (App. 2009). If the party
complaining of the error is the same party that caused the error, then “the
offending party has no recourse on appeal.” Lucero, 223 Ariz. at 135, ¶ 17,
220 P.3d at 255; Logan, 200 Ariz. at 565–66, ¶ 9, 30 P.3d at 632–33.

¶3            “[T]he crucial fact” in cases involving invited error is “that the
party took independent affirmative unequivocal action to initiate the error
and did not merely fail to object to the error or merely acquiesce in it.”
Lucero, 223 Ariz. at 136, ¶ 21, 220 P.3d at 256. In Lucero this court held the
defendant did not invite the error but merely acquiesced in the error
proposed by another when he “simply stated that he was not sure of the
law in the area and the court’s proposal . . . seemed correct.” 223 Ariz. at
138, ¶ 32, 220 P.3d at 258.

¶4            Unlike Lucero, however, this is not a case of mere
acquiescence. Instead, Leibly, through counsel, affirmatively informed the
court he did not want the self-defense instruction he now argues the court
should have given. Specifically, in settling the jury instructions, the State
raised the issue of whether Leibly would be requesting a self-defense
instruction. In response, defense counsel informed the court it was not his
“intent” to request such an instruction:

              [Prosecutor]: I asked [defense counsel] briefly.
              I said, you know, from what I heard from the
              defendant in his testimony he was raising some
              self-defense issues there. The State doesn’t
              agree with that at all, as far as the evidence goes.
              I asked [defense counsel] if he’s requesting self-
              defense or defense of property or anything
              along those lines and I don’t know if we need to
              discuss that.

              [Defense counsel]: Judge, it was not my intent to
              ask for the self-defense - -

              THE COURT: I don’t think - -

              [Defense counsel]: - - instruction.

              THE COURT: - - that’s really supported by the
              evidence anyway, such affirmative defenses.

(Emphasis added.).



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                             STATE v. LEIBLY
                            Decision of the Court

¶5            The conversation between the court and counsel regarding
the self-defense instruction continued with the prosecutor stating, “I don’t
know how Mr. Leibly personally feels about the record, but I’m not
requesting the instruction if [defense counsel] isn’t.” To this, defense
counsel made no response. And, the following morning, after the court and
counsel discussed the jury instructions further, defense counsel stated, “I
think that covers everything, Judge.”

¶6           On this record Leibly was the source of the error he alleges on
appeal. Because Leibly invited the alleged error, he is barred from claiming
the court should have instructed the jury on self-defense.

II.    Defense of Premises Instruction and Fundamental Error

¶7            Because Leibly did not request an instruction on defense of
premises, we review whether the court should have given such an
instruction only for fundamental error. See State v. Henderson, 210 Ariz. 561,
567, ¶ 19, 115 P.3d 601, 607 (2005); see also Ariz. R. Crim. P. 21.3(c) and cmt.
(failing to object to omission of instruction waives the issue on appeal
absent fundamental error). Thus, Leibly bears the burden of establishing
fundamental prejudicial error. See Henderson, 210 Ariz. at 567, ¶¶ 19–20,
115 P.3d at 607.

¶8              Although a defendant is entitled to a “justification [defense]
instruction if it is supported by the slightest evidence,” the superior court,
“does not err in refusing to give a jury instruction that . . . does not fit the
facts of the particular case.” State v. Hussain, 189 Ariz. 336, 337, 942 P.2d
1168, 1169 (App. 1997) (citation omitted) (internal quotations omitted).
Under A.R.S. § 13-407, a person may threaten “to use deadly physical force
. . . against another when and to the extent that a reasonable person would
believe it immediately necessary to prevent or terminate the commission or
attempted commission of a criminal trespass by the other person in or upon
the premises.”

¶9             At trial Leibly testified the victim aggressively drove up to his
property, and he and the victim began yelling at each other. Leibly further
testified that during the yelling, the victim began to reach around in the cab
of his truck, so Leibly ran inside his trailer to get his gun. The victim had
not yet gotten out of his truck or approached Leibly’s gate. Leibly testified
he grabbed his gun, ran out of his trailer, and then he saw the victim
standing at his gate, about 15 feet away. He also testified that when the
victim saw him come out of the trailer, the victim turned around and started
to run away. According to Leibly he thought that was funny, started



                                       4
                             STATE v. LEIBLY
                            Decision of the Court

laughing, put the gun in his pocket, and walked over to talk to the victim.
Leibly also denied ever pointing his gun at the victim—testimony contrary
to the concept of a justification defense that is predicated on a factual
assertion that “my assault was justified because . . . .” Cf. State v. Ruggiero,
211 Ariz. 262, 265, ¶ 11, 120 P.3d 690, 693 (App. 2005) (defendant who
disclaims assaultive behavior on his part not entitled to self-defense
instruction).

¶10            Given this evidence, a defense of premises instruction would
not have “fit” the facts of this case. And, the omission of such an instruction
did not deprive Leibly of a “right essential to his defense,” Henderson, 210
Ariz. at 567, ¶ 19, 115 P.3d at 607, or impact the foundation of his defense,
which was that he had not committed an assault. Accordingly, the superior
court did not commit fundamental error in failing to sua sponte instruct the
jury on defense of premises.

¶11           For the foregoing reasons we affirm Leibly’s convictions and
sentences.




                                   :ama




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