                              IN THE COURT OF APPEALS
                                  STATE OF ARIZONA
                                    DIVISION TWO


THE STATE OF ARIZONA,                          )
                                               )          2 CA-CR 2003-0322
                                  Appellee,    )          DEPARTMENT A
                                               )
                    v.                         )          O P I N IO N
                                               )
OSCAR MANUEL LOPEZ,                            )
                                               )
                                 Appellan t.   )
                                               )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                  Cause No. CR-20022713

                         Honorable H oward Fell, Judg e Pro Tempo re

                                        AFFIRMED


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Alan L. Amann                                                 Tucson
                                                                       Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender
  By Stephan J. M cCaffery                                                          Tucson
                                                                    Attorneys for Appellant


B R A M M E R, Judge.


¶1            A jury found appellant Oscar Manuel Lopez guilty of misconduct involving

weapons by posse ssing a d eadly w eapon when p rohibited from doing so. T he trial court

sentenced him to the presumptive, 4.5-year prison term. On appeal, Lopez maintains the trial
court erroneously refused to require the state to accept his stipulation to his prohibited

possessor status and that it abused its discretion by refu sing his proffered jury instruction on

“passing control.” W e affirm.

                           Factual and Procedural Background

¶2            We view the facts in the light most favorable to sustaining the jury’s verdict and

resolve all reasonable inferences aga inst Lopez. See State v. Riley, 196 Ariz. 40, 992 P.2d

1135 (App. 1999). In August 2002, off-duty border patrol agent Charles S achs wa s sitting in

a parked car when he heard gunshots and saw a muzzle flash coming from the driver’s side of

the red sports utility vehicle (SUV) that Lopez was driving. Two other police officers who had

been parked nearby also heard gunshots. Another Tucson police officer, Guy Cox, saw Lopez

drive through a red light and p ulled him over. Cox approached the passenger side of the SUV

and noticed a handgun between the driver’s seat Lopez occupied and the center console. In a

later interview, Lopez admitted that he had been convicted of a felony and had not ha d his right

to possess a firearm restored.

¶3             The state charged Lopez with misconduct involving weapons by prohibited

possession of a deadly weapon and unlawful discharge of a firearm. The jury fo und him g uilty

of the former charge but acquitted him of the latter. This appeal followed.

                                     Rejected Stipulation

¶4             Lopez first maintains that the trial court abused its discretion by allowing the

state to reject his proffered pre-trial stipulation that he was a prohibited possessor. The state

argued that his status as a prohibited possessor was an element of the offense the state was

                                               2
required to prove. T he trial court stated that, although entering the stipulation would be

“judicially economical,” the court had “no authority to require the State to [agree to the

stipulation].” The state and Lopez later stipulated that Lopez previously had been convicted of

a felony, and tha t stipulatio n was read to th e jury.

¶5             Lopez now contends the trial court abused its discretion by not compelling the

state to accept his first stipu lation that he w as a prohib ited possessor, and by fa iling to

recognize that it had discretion to do so. He relies primarily on State v. Leonard, 151 Ariz.

1, 8, 725 P.2d 493, 500 (App. 1 986), in which Division One of this court found harmless error

in the trial court’s rejection of stipulations the defendant had offered that would have admitted

prior convictions for driving under the influence of an intoxicant (D UI), holding that “the state

is not required to accept a stipulation w hen the pre judicial potential of the eviden ce is

substantially outweighed by the state’s legitimate need to prove the facts to which the

defendant offers to stipulate.” Because the prior convictions were not elements of the charged

offense, the trial court had concluded that making their existence known to the jury was

prejudicial to the defendant. The court found this error harmless, however, in light of the other

substantial ev idence of th e defenda nt’s guilt.

¶6             In State ex rel. R omley v. G alati, 195 Ariz. 9, 985 P.2d 494 (1999), the

defendant had been charged with aggravated DUI, among the elements of which is that the

defendant twice previously had been convicted of DUI. A.R.S. § 28-1383. The defendant had

offered to stipulate to the two prior conv ictions, prov ided the jury would not hear about them.

The state refused on the ground that the court could not preclude the jury from hearing

                                                    3
evidence on those elements. The supreme court held that, “b ecause the prior conv ictions to

which the defendant[] agreed to stipulate constitute elements of the charged offense, [he was]

not entitled to a bifurcated trial,” 195 Ariz. 9, ¶ 16, 985 P.2d at 497. The defendant was not

entitled to have the fact of his prior con victions kept from the jury. See also State v. Newnom,

No. 2 CA -CR 2002-0 447, 2004 W L 1891497 (Ariz. Ct. App. A ug. 25, 2004).

¶7             Although Lopez did not ask for a bifurcated trial, based on Galati he was not

entitled to keep from the jury one o f the elements of the crime charged. See Ariz. R. Crim.

P. 19.1(b), 17 A.R.S. (where prior conviction is element of c rime defend ant is not entitled to

bifurcated trial). This case is more like Galati than Leonard. In Leonard, the defendant had

not sought to stipulate to an element o f the charge d offense, b ut, rather, he had soug ht to

stipulate to prior convictions that were to be used for sentence enhancement purposes. 1

¶8             Here, although the proffered stipulation that Lopez was a prohibited possessor

would have been read to the jury, Lopez attempted to remove from the jury’s consideration

elements of the charged offense—that he has a prior felony conviction and that his civil right

to possess or carry a firearm has not been restored.2 A.R.S. § 1 3-3101(A)(6)(b). Based on

Galati, the trial court did not err by refusing to compel the state to accept Lopez’s stipulation.




       1
        After Division One decided Leonard, the legislature enacted the current aggravated
DUI statute under which the prior sentence enhancement factors have now become e lements
of the crime. See State ex rel. Rom ley v. Gala ti, 193 Ariz. 437, 9 73 P.2d 118 8 (App. 199 8).
       2
         We find no merit to Lopez’s contention that the existence of a prior felony conviction
is not an “element” of the offense of weapons misconduct, but merely a descriptive definition.

                                                4
¶9             In light of Galati, we do not address Lopez’s arguments based on Leonard’s

suggested balancing test. Likew ise, we also reject Lop ez’s contention that the trial court

improperly believed it was without discretion to compel the state to accept his stipulation.

                                        Jury Instruction

¶10            Lopez also contends the trial court erroneously refused his proffered jury

instruction on “passing con trol.” We will not disturb a trial court’s decision to refuse a jury

instruction absent a clear abuse of its discretion, State v. Tschilar, 200 Ariz. 427, 27 P.3d 331

(App. 2001), but review de novo w hether the proffered instruction correctly stated the law.

State v. Morales, 198 Ariz. 372, 10 P.3d 630 (App. 2000); see State v. L eslie, 147 Ariz. 38,

708 P.2d 719 (1985) (trial court does not err in refusing instructions that d o not correc tly

state the law). A defendant is entitled to a jury instruction “on any theory reasonably supported

by the evidence.” State v. Johnson, 205 Ariz. 413, ¶ 10, 72 P.3d 343, 347 (Ap p. 2003); see

also State v. Rodriguez, 192 Ariz. 58, 961 P.2d 1006 (1998). And “when the substance of a

proposed instruction is ad equately cov ered by othe r instructions, th e trial court is not required

to give it.” State v. Hoskins, 199 Ariz. 127, ¶ 75, 14 P.3d 9 97, 1015 (200 0).

¶11            Lopez requested that the court instruct the jury that “[p]assing control . . . [of an

item] does not constitute possession of that item,” and that, in order to find Lopez guilty, the

jury must find he had “more than just passing control of a firearm.” In rejecting Lopez’s

instruction, the court explained that existing instructions adeq uately stated the law and noted




                                                 5
that Lopez still could argue to the jury the me aning of “possession ” based on the jury

instructions on “actual” and “constructive” possession.3

¶12              Lopez maintains that the proffered instruction was appropriate because the

existing definitions of “possession” were inadequate and because the instruction would have

supported his theory that h e simply discovered the gun in h is vehicle after h is passengers had

left. He relies on State v. Tyler, 149 Ariz. 312, 718 P.2d 214 (App. 1986), for his contention

that “it would be appropriate ” to clarify that “passing control does no t constitute possession.”

In Tyler, the defendant’s theory had been that his mere “momentary innocent handling” of a

prohibited weapon was insufficient to establish criminal possession. 149 Ariz. at 316, 718

P.2d at 218. Division O ne of this court found th e trial court did n ot abuse its discretion in

refusing to give the defendant’s proposed jury instruction, which focused on the de fendant’s

possession of the weapon “for a limited period of time.” Id. The court determined that

existing instructions on the meaning of possession adequately conveyed the meaning of

“control” and that the pro posed instruction wo uld be of no further assistance to the jury. Id.


       3
           The cou rt instructed the jury, in pertinent part, as follows:

                       The law recognizes tw o kinds of possession[ :] actual
                 possession and constructive possession.

                         Actual possession means the defendant knowingly has
                 direct physical c ontrol over an object.

                        Constructive possession means the defendant does not
                 actually possess an object but knowingly has the power and the
                 intention to exercise dominion and control over it, either acting
                 alone or through another person.

                                                   6
¶13            Such is the case here. In Tyler, Division O ne approved, in theory, of an

instruction that provide s the state mus t prove the d efendant “ wilfully [kep t a firearm] in his

possession with the inte nt to control [ its] use and m anageme nt . . . or . . . w ith the power and

intent to guide or manage [it],” id. at 316-17, 718 P .2d at 218-19, quoting State v. Run nels,

456 P.2d 16 (Ka n. 1969). Howeve r, that instruction differs substantially from the one Lopez

requested and makes no mention of the “passing control” concept Lopez advances here. We

express no opinion on how this court w ould evalu ate the hypoth etical jury instruction Tyler

suggests. Because Lopez c ites us to no authority supporting his pro ffered instruction, we

cannot conclude that it correctly stated the law. Morales; see Leslie. Moreover, the ju ry

instructions the court gave adeq uately explained the conce pt of possession. See Hoskins; see

also Tyler (terms “dominion” and “co ntrol” need not be further defined b ecause the ir

significance is adequately conv eyed by their ordinary meaning).

¶14            For the foregoing reasons, Lopez’s conviction and sentence are affirmed.




                                                  J. WILLIAM BRAM MER, JR., Judge

CONCURRING:




JOSEPH W. HO WARD, Presiding Judge




PETER J. ECKER STROM, Judge



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