                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                       ERIC ROHN ESTES, Appellant.

                             No. 1 CA-CR 14-0814
                              FILED 3-1-2016


          Appeal from the Superior Court in Maricopa County
                       No. CR2013-426750-001
         The Honorable Richard L. Nothwehr, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By W. Scott Simon
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Peg Green
Counsel for Appellant
                             STATE v. ESTES
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Kenton D. Jones and Judge Samuel A. Thumma joined.


S W A N N, Judge:

¶1            Eric Rohn Estes (“Defendant”) appeals his conviction for
resisting arrest. He contends the trial court committed reversible error by
refusing to give jury instructions on self-defense and excessive force. For
the following reasons, we affirm Defendant’s conviction.

                FACTS AND PROCEDURAL HISTORY

¶2            On October 7, 2012, around 3:00 a.m., Defendant caused a
disturbance on the light-rail platform at Third Street and Mill Avenue in
Tempe. Private light-rail security officers told Defendant he was
trespassing, and if he did not leave, they would call the police. Three
Tempe police officers on bicycle patrol saw Defendant yelling at the
security guards and repeatedly crossing the light-rail tracks.

¶3            The police officers rode to the platform to assist security. As
Defendant turned to leave the platform, he struck Officer Spruyt in the
chest. When the officers attempted to arrest him and place him in
handcuffs, Defendant squirmed and flailed to avoid being cuffed. The
officers then wrestled him to the ground, but Officer Spruyt injured his
shoulder while executing the takedown. The officer required surgery and
several months of light duty as a consequence. Defendant was indicted for
aggravated assault and resisting arrest.

¶4             At trial, both parties showed a surveillance video from the
station platform, but because of the camera’s angle, it did not capture the
entire encounter. It shows the officers taking Defendant down and
adjusting handcuffs behind his back. After Defendant was cuffed and lying
face down on the platform, his right arm was rotated up and forward and
appeared to be out of joint. Officer Spruyt testified that Defendant lifted
his own arm into that position, though defense counsel argued in closing
that the officer was twisting his arm. The video does not, however, show
the interaction between Officer Spruyt and Defendant before the arrest,
which was the sole basis of the assault charge. The officers testified that
Defendant intentionally shoved Officer Spruyt in the chest, but a light-rail


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                              STATE v. ESTES
                            Decision of the Court
security guard testified Defendant turned to leave and accidentally collided
with Officer Spruyt.

¶5            Defense counsel argued that Defendant resisted arrest
because the officers used excessive force in arresting him. He requested
jury instructions on self-defense and excessive force. Concluding the
evidence did not support them, the trial court declined to give the
instructions. The jury found Defendant not guilty of aggravated assault
and not guilty of the lesser-included offense of assault but found him guilty
of resisting arrest. The court suspended his sentence and placed him on
two years’ supervised probation. Defendant timely appeals.

                               DISCUSSION

¶6             Defendant contends that the court erred by not giving the jury
instructions for self-defense and excessive force at trial. Because Defendant
objected at trial, we review for harmless error. State v. Henderson, 210 Ariz.
561, 567, ¶ 18 (2005).

¶7             Jury instructions viewed in their entirety must “adequately
set forth the law applicable to the case.” State v. Rosas-Hernandez, 202 Ariz.
212, 220, ¶ 31 (App. 2002). A defendant is entitled to a jury instruction “on
any theory reasonably supported by the evidence,” id. (citation omitted),
unless that instruction is adequately covered by other instructions, State v.
Mott, 187 Ariz. 536, 546 (1997), or is misleading to the jury, State v. Noriega,
187 Ariz. 282, 284 (1996). Failure to give a reasonably supported instruction
is reversible error when it causes prejudice to the defendant, and that
prejudice is shown by the record. Rosas-Hernandez, 202 Ariz. at 220, ¶ 31.
We review a trial court’s denial of a jury instruction for an abuse of
discretion. Id.

¶8            Here, the trial court did not abuse its discretion by refusing
the excessive force and self-defense instructions because the evidence does
not support those theories. The officers arrested Defendant after he collided
with Officer Spruyt. Even though Defendant was acquitted of any assault
charges, at the time of the arrest, the officers had probable cause to believe
that Defendant had assaulted a police officer, providing a basis to arrest
him. See A.R.S. §§ 13-1203, -1204(A)(8)(a) & (D), -3883(A)(1). Police officers
may use physical force to carry out an arrest if the subject uses or threatens
to use physical force, a reasonable person would believe force is
immediately necessary to effectuate the arrest, the officer makes the
purpose of the arrest known, and a reasonable person would believe the
arrest was lawful. A.R.S. § 13-409. But that force cannot be excessive.
A.R.S. § 13-3881(B).


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                                STATE v. ESTES
                              Decision of the Court
¶9             The jury instruction for self-defense states in part:

       A defendant is justified in using or threatening physical force
       in self-defense if the following two conditions existed:

       1. A reasonable person in the situation would have believed
       that physical force was immediately necessary to protect
       against another’s use or apparent attempted or threatened use
       of unlawful physical force; and

       2. The defendant used or threatened no more physical force
       than would have appeared necessary to a reasonable person
       in the situation.

       ....

       The threat or use of physical force is not justified:

       ....

       2. To resist an arrest that the defendant knew or should have
       known was being made by a peace officer . . . whether the
       arrest was lawful or unlawful, unless the physical force used by
       the peace officer exceeded that allowed by law . . . .

Rev. Ariz. Jury Instr. (“RAJI”) Stand. Crim. 4.04 (3d ed. 2015) (second and
third emphases added).

¶10            Therefore, for Defendant properly to assert self-defense, there
must have been evidence that police used excessive force to make the arrest.
Defendant’s requested instruction for excessive force states: “No
unnecessary or unreasonable force shall be used in making an arrest.” RAJI
Stand. Crim. 38.81. Defendant offers the following as evidence of excessive
force: (1) the officers took him to the ground and handcuffed him; (2) his
arm was twisted at an unnatural angle behind his back after he was cuffed;
and (3) he “responded to the police with a very minimal movement of his
upper body.” Those events happened, however, after the alleged assault
and Defendant’s resisting of the arrest, and therefore could not have served
as a defense to those charges. A person resists arrest by “intentionally
preventing or attempting to prevent a person reasonably known to him to
be a peace officer, acting under color of such peace officer’s official
authority, from affecting an arrest by . . . using or threatening to use
physical force against the peace officer or another.” A.R.S. § 13-2508. One
of the officers testified that Defendant responded to their attempts to detain
and handcuff him with “immediate physical resistance”; another described


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                              STATE v. ESTES
                            Decision of the Court
how Defendant “squirm[ed] around, wrestling around trying to not get in
handcuffs” and “eventually had to be taken to the ground.” When the
alleged excessive force occurred, Defendant had already undertaken the
acts that provided the basis of the resisting arrest charge. While Defendant
may have civil remedies available if the officers unlawfully injured him, he
was not entitled to the self-defense or excessive force jury instructions; there
was no error.

                               CONCLUSION

¶11            For the foregoing reasons, we affirm Defendant’s conviction
for resisting arrest.




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