                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                   JAMES MICHAEL PORRAS, Appellant.

                             No. 1 CA-CR 17-0489
                               FILED 5-31-2018


           Appeal from the Superior Court in Coconino County
                        Nos. S0300CR201600301
                             S0300CR201600565
                             (Consolidated)
                The Honorable Jacqueline Hatch, Judge

                                  AFFIRMED


                                   COUNSEL

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

Coconino County Public Defender’s Office, Flagstaff
By Brad Bransky
Counsel for Appellant
                            STATE v. PORRAS
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Michael J. Brown and Judge David D. Weinzweig joined.


C R U Z, Judge:

¶1           James Michael Porras appeals from his conviction and
sentence on count three, aggravated assault. For the reasons set forth
below, we affirm.

              FACTUAL AND PROCEDURAL HISTORY1

¶2            In March 2016, victim, Regina2, began working at a sandwich
shop in Flagstaff where Porras was a manager. Over the next several days,
Porras and Regina became friendly—they exchanged numerous text
messages and met outside of work. The second time they met outside of
work, Porras sexually assaulted Regina.3 After the encounter, Regina was
“freaked out” and, while driving Porras back to his vehicle, got into an
accident, totaling her car. Later that night, Porras began sending Regina
text messages apologizing for “everything that had happened.”

¶3            Two days later, Regina and Porras were working together.
During their shift, Porras was “upset” and began to send Regina text
messages expressing his feelings for her and his frustration that Regina was
not interested in pursuing a relationship with him. At the end of the night,
Porras asked Regina to retrieve some cookies from the store’s walk-in
freezer. Porras followed. He “crept up behind” her inside the freezer and
hit her on the back of the head with “something blunt.” Regina became


1      “[W]e view the evidence in the light most favorable to sustaining the
verdict, and we resolve all inferences against the defendant.” State v.
Davolt, 207 Ariz. 191, 212, ¶ 87 (2004).

2      We reference the victim herein by the pseudonym provided in the
State’s answering brief. See Ariz. R. Crim. P. (“Rule”) 31.13(c)(5)
(renumbered as 31.10(f), effective Jan. 1, 2018).

3     The details of this event provided the factual basis for Porras’
convictions of counts one and two, but are not relevant to this appeal.


                                     2
                             STATE v. PORRAS
                            Decision of the Court

disoriented, her “vision went white” and her “ears started ringing.” Regina
touched the back of her head and discovered she was bleeding. Porras then
grabbed Regina by the neck and strangled her. Once freed, Regina ran out
of the store to her mother’s car, drove to the police station, and called 9-1-1
from the car. Regina identified Porras and explained to police that Porras
hit her on the back of her head with a five-pound metal object used to open
“pickle buckets.”

¶4             The State charged Porras with two counts of sexual abuse and
three counts of assault, including aggravated assault, a Class three
dangerous felony, by causing physical injury to Regina using a deadly
weapon or dangerous instrument. See Ariz. Rev. Stat. (“A.R.S.”) § 13-
1204(A)(2). The dangerous instrument was the large metal pickle jar
opener. The case proceeded to trial, and the superior court instructed the
jurors as follows:

       The crime of aggravated assault requires proof of the
       following:

       [] 1. The defendant committed an assault;

       2. The assault was aggravated by at least one of the following
       factors: The defendant used a deadly weapon or dangerous
       instrument.

       ...

       “Dangerous instrument” means anything that is readily
       capable of causing death or serious physical injury under the
       circumstances in which it is used.

       “Physical injury” means the impairment of physical
       condition.

The jurors convicted Porras on all counts.

¶5           We have jurisdiction over Porras’ timely appeal pursuant to
Arizona Constitution Article 6, Section 9, and A.R.S. §§ 12-120.21(A)(1), 13-
4031, and -4033(A).

                               DISCUSSION

¶6             Porras argues that the trial court committed reversible error
when it failed to give a jury instruction defining “serious physical injury”
in relation to count three, because the definition is “absolutely essential to


                                      3
                             STATE v. PORRAS
                            Decision of the Court

define ‘dangerous instrument’[.]”4 The State contends Porras did not object
below with sufficient specificity and, consequently, this court should
review for fundamental error.

¶7              Arizona Rule of Criminal Procedure 21.3(c) requires that a
party objecting to a court’s failure to give an instruction state his objection
“before the jury retires to consider its verdict, stating distinctly the matter
to which the party objects and the grounds of his or her objection.” Failure
to enter an objection to the omission of a jury instruction with specificity
forfeits the claim on appeal. State v. Henderson, 210 Ariz. 561, 567, ¶¶ 19-20
(2005).

¶8            Here, during the finalization of jury instructions, the State
requested that the superior court not instruct the jury on the definitions of
dangerousness or serious physical injury because neither was an element
of the charged aggravated assault offense under A.R.S. § 13-1204(A)(2).
Porras partially objected. He argued that if dangerousness is an element of
the offense, then “serious physical injury” should be defined because it is
required to prove dangerousness. The court omitted the definition of
serious physical injury from the final jury instructions.

¶9            Porras’ objection below was directly related to the definition
of “dangerousness” and not to the definition of “dangerous instrument.”
We find that, on this record, Porras did not adequately state the grounds of
his objection and thus has not preserved the issue for appeal. When an
appellant has failed to preserve an issue for appeal, we review for
fundamental error. Henderson, 210 Ariz. at 567, ¶ 19. Under fundamental
error review, Porras carries the burden of persuasion in establishing both
that “fundamental error exists and that the error in his case caused him
prejudice.” Id. at ¶ 20.

¶10           Assuming without deciding that fundamental error exists,
Porras cannot show prejudice. To show prejudice, Porras must establish
that a reasonable jury could have reached a different result had it been
properly instructed. See id. at 569, ¶ 27. First, Porras did not defend on a
theory that the pickle jar opener was not a dangerous instrument; instead,
he argued that there was no evidence proving he used the pickle jar opener
during Regina’s assault. See State v. Johnson, 205 Ariz. 413, 417, ¶ 11 (App.


4      A dangerous instrument is defined as “anything that under the
circumstances in which it is used, attempted to be used or threatened to be
used is readily capable of causing death or serious physical injury.” A.R.S.
§ 13-105(12).


                                      4
                             STATE v. PORRAS
                            Decision of the Court

2013) (holding we may consider jury instructions “in context and in
conjunction with the closing arguments of counsel.”).

¶11            Additionally, Regina testified that Porras followed her into
the walk-in freezer, crept up behind her, and hit her on the back of her head
with a five-pound metal instrument used to open pickle buckets. The
superior court admitted photographs of Regina’s head injury and a
photograph of the instrument, found in the walk-in freezer, where the
assault occurred. Porras has not shown—and it is improbable that he could
show—that given this record, even if the court defined “serious physical
injury,” the jurors would have reached a different result. See State v. Gordon,
161 Ariz. 308, 310 (1989) (holding that it is the manner in which an
instrument was utilized against a victim that determines whether it was
used as a dangerous instrument).

                               CONCLUSION

¶12           For the foregoing reasons, we affirm Porras’ conviction and
sentence of aggravated assault.




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




                                         5
