                                                                        FILED BY CLERK
                                                                            FEB 20 2007
                              IN THE COURT OF APPEALS
                                                                            COURT OF APPEALS
                                  STATE OF ARIZONA                            DIVISION TWO
                                    DIVISION TWO


ROYCE WILLIAMS, a single man,                  )         2 CA-CV 2006-0128
                                               )         DEPARTMENT A
                         Plaintiff/Appellee,   )
                                               )         OPINION
                    v.                         )
                                               )
JAYDON TRAVIS BAUGH,                           )
                                               )
                    Defendant/Appellant.       )
                                               )


           APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

                                 Cause No. CV200500310

                         Honorable Stephen F. McCarville, Judge

                                        REVERSED


Johnson, Rasmussen, Robinson & Allen, P.L.C.
 By John W. Rasmussen and Jennifer M. Wolfe                                          Mesa
                                                          Attorneys for Plaintiff/Appellee

Davis Miles, PLLC
 By Steven R. Rensch and Richard R. Thomas                                        Mesa
                                                       Attorneys for Defendant/Appellant


H O W A R D, Presiding Judge.


¶1            Appellant/defendant Jaydon Baugh challenges the trial court’s finding that he

was liable to appellee/plaintiff Royce Williams as a matter of law and granting summary

judgment in favor of Williams on the issue of liability in Williams’s assault action. Baugh
argues that A.R.S. § 13-807, which prohibits a defendant convicted in a criminal case from

denying the essential allegations of the criminal conviction in a subsequent civil case, does

not bar him from raising the affirmative defenses of justification, contributory negligence,

and comparative fault. Because § 13-807 does not preclude a defendant from raising an

affirmative defense that does not conflict with the essential allegations of the offense, we

reverse.

¶2            When reviewing a grant of summary judgment, we view the evidence and

reasonable inferences from it in the light most favorable to the nonmoving party. Link v.

Pima County, 193 Ariz. 336, ¶ 12, 972 P.2d 669, 673 (App. 1998). In March 2003, Baugh

confronted Williams in a bar parking lot about his treatment of Celia Marquez that evening.

After brandishing a knife and threatening Baugh, Williams was restrained and pulled back

into the bar. Baugh, who was intoxicated, agreed to leave with Marquez. Marquez then

drove to Williams’s house, where Baugh entered and struck Williams with a gun.

¶3            Baugh was arrested, charged with, and subsequently pled guilty to aggravated

assault and burglary. Williams then sued Baugh alleging, inter alia, that his action

“constituted an intentional, aggravated, physical assault and battery.” Williams filed a

motion for partial summary judgment on the issue of liability. In response Baugh argued the

facts supported a justification defense and a claim of contributory negligence and

comparative fault. The trial court granted Williams’s motion, found Baugh liable, and

precluded him from raising a justification defense. It entered a judgment that included a




                                             2
determination of finality pursuant to Rule 54(b), Ariz. R. Civ. P., 16 A.R.S., Pt. 2. Baugh

now appeals.

¶4             We have jurisdiction pursuant to A.R.S. § 12-2101(G). See Bilke v. State, 206

Ariz. 462, ¶ 28, 80 P.3d 269, 275 (2003) (“[U]nder A.R.S. § 12-2101(G), ‘an interlocutory

judgment which determines the rights of the parties and directs . . . [a] proceeding to

determine the amount of the recovery’ can be appealed if the trial court, in the exercise of

its sound discretion, expressly directs that the only issue remaining is the amount of

recovery.”), quoting § 12-2101(G).

¶5             Baugh argues the trial court erred when it granted Williams summary judgment

on the issue of liability because it incorrectly interpreted § 13-807 to preclude him from

presenting the affirmative defense of justification. We review de novo the propriety of

summary judgment, Link, 193 Ariz. 336, ¶ 12, 972 P.2d at 673, and issues of statutory

construction, McHale v. McHale, 210 Ariz. 194, ¶ 7, 109 P.3d 89, 91 (App. 2005). “When

construing a statute, our goal ‘is to fulfill the intent of the legislature that wrote it.’” City

of Sierra Vista v. Dir., Ariz. Dep’t of Envtl. Quality, 195 Ariz. 377, ¶ 10, 988 P.2d 162,

165 (App. 1999), quoting State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993).

“If the statute is clear and unambiguous, we apply the plain meaning of the statute.”

Hourani v. Benson Hosp., 211 Ariz. 427, ¶ 7, 122 P.3d 6, 10 (App. 2005). “We look . .

. to the statute’s language . . . [as] ‘the best and most reliable index of [the] statute’s

meaning.’” Williams, 175 Ariz. at 100, 854 P.2d at 133, quoting Janson v. Christenson,

167 Ariz. 470, 471, 808 P.2d 1222, 1223 (1991).


                                               3
¶6            Section 13-807 prohibits “[a] defendant convicted in a criminal proceeding . . .

from subsequently denying in any civil proceeding brought by the victim . . . against the

criminal defendant the essential allegations of the criminal offense of which he was adjudged

guilty, including judgments of guilt resulting from no contest pleas.” Based on the plain

wording of this statute, “the legislature precluded defendants from denying in a civil case the

essential elements of their conviction in a criminal case, with no exceptions granted.”

W. Agric. Ins. Co. v. Brown, 195 Ariz. 45, ¶ 14, 985 P.2d 530, 533 (App. 1998).

Furthermore, “the ‘essential’ mental state alleged is the minimum mental state necessary for

conviction of that offense as defined by statute.” Republic Ins. Co. v. Feidler, 178 Ariz.

528, 533, 875 P.2d 187, 192 (App. 1993); see also K.B. v. State Farm Fire & Cas. Co.,

189 Ariz. 263, 266, 941 P.2d 1288, 1291 (App. 1997) (same).

¶7            Section 13-807, however, does not mention affirmative defenses, so we must

determine whether the legislature intended to include them. The state, as a general rule, will

not allege any affirmative defenses on behalf of the defendant. See Ariz. R. Crim. P. 13.2,

16A A.R.S. (contents of indictment). We presume the legislature knew that affirmative

defenses were not essential allegations of a criminal offense that the state must prove in

order to obtain a conviction. See Washburn v. Pima County, 206 Ariz. 571, ¶ 11, 81 P.3d

1030, 1035 (App. 2003) (“We presume the legislature is aware of existing statutes when it

enacts new statutes . . . .”); see also State v. Pennington, 149 Ariz. 167, 168, 717 P.2d 471,

472 (App. 1985). And the legislature easily could have stated that a criminal defendant




                                              4
either cannot interject affirmative defenses in the civil action1 or is absolutely liable to the

civil plaintiff once he or she has been convicted of a criminal offense that resulted in the

plaintiff’s injury. Because it did not, and because we will not add words to what the

legislature has stated, we assume that it did not intend either result. See AAA Cab Serv.,

Inc. v. Indus. Comm’n, 213 Ariz. 342, ¶ 6, 141 P.3d 822, 824 (App. 2006).

¶8            Furthermore, the legislature has explicitly provided in A.R.S. § 13-413 that

“[n]o person in this state shall be subject to civil liability for engaging in conduct otherwise

justified pursuant to the provisions of this chapter.” “Statutes relating to the same subject

matter should be read in pari materia to determine legislative intent and to maintain

harmony.” Goulder v. Ariz. Dep’t of Transp., Motor Vehicle Div., 177 Ariz. 414, 416, 868

P.2d 997, 999 (App. 1993), aff’d, 179 Ariz. 181, 877 P.2d 280 (1994). Section 13-413

indicates the legislature intended that the criminal affirmative defenses be available to the

civil defendant. And nothing in § 13-807, which was enacted sixteen years after § 13-413,

indicates that it was intended to limit or be an exception to § 13-413.

¶9            The plain language of § 13-807 precludes the criminal defendant convicted of

an offense from denying the essential allegations of that offense in a civil case brought by

the person injured by the criminal act. See Brown, 195 Ariz. 45, ¶ 14, 985 P.2d at 533. But

we further conclude that § 13-807 does not preclude the criminal defendant who has been

convicted of an offense from raising affirmative defenses under § 13-413 in a subsequent




       1
        We do not consider any possible constitutional issues.

                                               5
civil case that do not contradict the essential allegations of the offense. This interpretation

fulfills the legislative intent of both statutes.

¶10            Williams nevertheless contends that by pleading guilty a defendant waives all

non-jurisdictional defenses to the crimes charged, citing State v. Hostler, 109 Ariz. 212, 507

P.2d 974 (1973), and State v. Johnson, 116 Ariz. 561, 570 P.2d 503 (App. 1977). But

those cases deal with the effect of the guilty plea in the context of the criminal case. The

issue in this case is what effect the legislature intended the conviction to have in the context

of a civil action. To make that determination, we have examined the language of § 13-807,

as we are required to do. See Williams, 175 Ariz. at 100, 854 P.2d at 133 (language of

statute best indication of meaning). The legislature has only barred the defendant in the civil

context from denying the essential allegations of the offense.

¶11            At the time this altercation occurred, A.R.S. § 13-1203 provided: “A person

commits assault by . . . [i]ntentionally, knowingly or recklessly causing any physical injury

to another person.” And A.R.S. § 13-1204(A)(2) provides that a person commits aggravated

assault by committing assault with a deadly weapon or dangerous instrument. Self-defense

was then an affirmative justification defense to the crime of aggravated assault. See A.R.S.

§ 13-401(B); State v. Casey, 205 Ariz. 359, ¶ 28, 71 P.3d 351, 358 (2003).2 “[A] person

       2
         We note, however, that the legislature superseded Casey when it amended A.R.S.
§ 13-205(A) in 2006. 2006 Ariz. Sess. Laws, ch. 199, § 2. See also Garcia v. Browning,
No. CV-06-0320-PR, ¶ 20, 2007 WL 419645 (Ariz., Feb. 9, 2007) (amendment of § 13-205
not retroactive to primary facts arising before its effective date). The legislature declared that
justification defenses were no longer affirmative defenses and that if the defendant presents
some evidence of justification, the burden is then on the state to prove a lack of justification
beyond a reasonable doubt in order to prove the defendant guilty. This amendment may

                                                    6
is justified in threatening or using physical force against another when and to the extent a

reasonable person would believe that physical force is immediately necessary to protect

himself against the other’s use or attempted use of unlawful physical force.” A.R.S.

§ 13-404(A). Accordingly, a claim of self-defense does not contradict any of the essential

elements of aggravated assault, but rather raises additional facts by way of confession and

avoidance. See Blacks Law Dictionary 317 (8th ed. 2004) (Confession and avoidance

defined as “[a] plea in which a defendant admits allegations but pleads additional facts that

deprive the admitted facts of an adverse legal effect.”).3

¶12           Williams argues, however, that the phrase “essential allegations” of a criminal

conviction implicitly includes any affirmative defenses to that offense, thereby precluding

Baugh from raising them. The statutory language does not support that assertion. It could

only be justified by issue preclusion, formerly called collateral estoppel.

¶13           Although Williams mentioned the term “collateral estoppel” on appeal and

below, his entire argument in both courts was based on § 13-807. Furthermore, the trial

court based its ruling on § 13-807 rather than issue preclusion. Because the issue was not

sufficiently argued, we will not address it. See Ariz. R. Civ. App. P. 13(a)(6), 17B A.R.S.;



change the applicability of § 13-807 to future civil self-defense claims, but the primary facts
of this case occurred prior to the effective date of the amended statute and the issue was not
briefed by the parties, therefore we do not decide it.
       3
        Williams argues that Baugh had no valid justification defense under the facts
adduced here and Baugh countered that questions of fact remained on that issue. The trial
court did not rule on this issue and we decline to do so in the first instance.


                                              7
Brown v. U.S. Fid. & Guar. Co., 194 Ariz. 85, ¶ 50, 977 P.2d 807, 815 (App. 1998)

(declining to address contention made without supporting authority or argument).

Additionally, we have recently concluded that issue preclusion does not apply in the guilty

plea context because the issues are not actually litigated. Picaso v. Tucson Unified Sch.

Dist., No. 2 CA-CV 2005-0174, 2007 WL 447925 (Ariz. App. Feb. 13, 2007).

Accordingly, issue preclusion does not help Williams here.

¶14            Williams and the trial court also relied on American Family Mutual Insurance

Co. v. White, 204 Ariz. 500, ¶ 16, 65 P.3d 449, 455 (App. 2003), for the proposition that

Baugh was precluded from raising affirmative defenses. In that case, Division One of this

court interpreted § 13-807 in the context of deciding whether a homeowner’s insurance

policy exclusion applied. Id. ¶ 1. The policy stated: “We will not cover bodily injury or

property damage arising out of . . . violation of any criminal law for which any insured is

convicted.” Id. ¶ 5 (emphasis deleted). After the insured had pled guilty to reckless

aggravated assault, the victim sued for damages based on negligence. Id. ¶¶ 3-4. The court

noted that the victim/plaintiff “stands in the shoes” of the defendant and had no greater

rights in the policy. Id. ¶ 16. It then stated in dicta and without citing any authority that

“[b]ecause [the insured] waived his claims of self-defense and defense of others by pleading

guilty to aggravated assault, [victim/plaintiff] cannot raise those defenses in the civil action.”

Id.

¶15            White is distinguishable from the case here because any language in White

must be evaluated in the context of the interpretation of the insurance policy provision. In



                                                8
White, the defendant had pled guilty and any claim of self-defense would contradict the

essential allegations of the offense for purposes of determining whether the defendant’s

action was, under the policy, a “violation of any criminal law for which any insured is

convicted.” Id. ¶¶ 4, 16 (emphasis deleted).

¶16           Moreover, White relied on Brown and Feidler, which support our holding.

In Brown, 195 Ariz. 45, ¶ 11, 985 P.2d at 533, the defendant had been found guilty of

premeditated first-degree murder after the jury rejected his insanity defense. The defendant

and the victims’ survivors then sought insurance coverage for the murders under the

defendants’ bodily injury liability policy. Id. ¶ 1. Division One held that the intentional

acts exclusion in the policy precluded coverage. Id. ¶¶ 5-17. The court recognized that the

insanity defense was not an element of first-degree murder because the defendant had the

burden of proving that defense. Id. ¶ 14. And “[a]lthough defendants have a higher burden

of proof in criminal cases than in civil cases on the issue of insanity,” the court held that

allowing the assertion of that defense in a civil case “would be contrary to the clear intention

of section 13-807.” Id. It based its decision on the fact that a jury had rejected the insanity

defense and decided the criminal defendant had acted with premeditation and either

intentionally or knowingly, a finding that would directly conflict with the defendant’s

argument in the civil case that he had acted impulsively and negligently. Id. ¶¶ 9-10.

¶17           In contrast, in Feidler, the defendant pled no contest to aggravated assault, but

Feidler contended in the civil case that the intentional acts exclusion did not preclude

insurance coverage because the defendant was too intoxicated to form an intent. 178 Ariz.



                                               9
at 530, 875 P.2d at 189. This court held: “[§ 13-807] does not prevent Feidler from arguing

that Davis was too intoxicated to form an intent to injure. Section 13-807 does not

collaterally estop Feidler because the mental state required for aggravated assault is not the

same as that required by the intentional acts exclusion.” Id. at 532-33, 875 P.2d at 191-92.

¶18           The results in Brown, Feidler, and White flow directly from the plain wording

of § 13-807: the defendant is precluded from denying the essential allegations of the offense.

But there is nothing in § 13-807 precluding a defendant from establishing facts not in conflict

with the essential allegations of the criminal offense. Therefore, these cases would not

require a different result here, even if they had arisen in the same context.

¶19           Baugh next argues the trial court further erred when it ruled he should not be

permitted to raise the defense of contributory negligence and/or comparative fault.4 Under

A.R.S. § 12-2505(A),

              [t]he defense of contributory negligence . . . is in all cases a
              question of fact and shall at all times be left to the jury. If the
              jury applies [contributory negligence], the claimant’s action is
              not barred, but the full damages shall be reduced in proportion
              to the relative degree of the claimant’s fault which is a proximate
              cause of the injury . . . .

See also Ariz. Const. art. XVIII, § 5. Additionally, “[i]n assessing percentages of fault the

trier of fact shall consider the fault of all persons who contributed to the alleged injury, death

or damage to property, regardless of whether the person was, or could have been, named as

a party to the suit.” A.R.S. § 12-2506(B).

       4
        We decide only whether Baugh is precluded under § 13-807 from raising the defense
of contributory negligence and comparative fault, not whether Baugh has a viable defense
under either theory.

                                               10
¶20          The defense of contributory negligence generally is not recognized as a defense

to criminal conduct. See State v. Shumway, 137 Ariz. 585, 588, 672 P.2d 929, 932 (1983).

And neither a defense of contributory negligence nor comparative fault principles deny an

“essential allegation[] of the criminal offense of which [the defendant] was adjudicated

guilty.” § 13-807. Based on the analysis above concerning justification defenses, we

conclude that § 13-807 does not bar a civil defendant from alleging contributory negligence

or seeking a reduction of his percentage of comparative fault. Consequently, Baugh is not

precluded under § 13-807 from introducing evidence of contributory negligence or

comparative fault.

¶21          For the foregoing reasons the trial court’s judgment is reversed.



                                             ____________________________________
                                             JOSEPH W. HOWARD, Presiding Judge



CONCURRING:


____________________________________
JOHN PELANDER, Chief Judge



____________________________________
GARYE L. VÁSQUEZ, Judge




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