                               IN THE
              ARIZONA COURT OF APPEALS
                             DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                 JUAN FRANCISCO LOPEZ, Appellant.

                         No. 1 CA-CR 12-0726
                            FILED 5-1-2014


          Appeal from the Superior Court in Maricopa County
                       No. CR2011-153086-001
               The Honorable Daniel G. Martin, Judge

                   REVERSED AND REMANDED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Andrew Reilly
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Stephen J. Whelihan
Counsel for Appellant
                           STATE v. LOPEZ
                          Opinion of the Court



                                OPINION

Presiding Judge Kent E. Cattani delivered the opinion of the Court, in
which Judge Margaret H. Downie and Judge Michael J. Brown joined.


C A T T A N I, Judge:

¶1            Juan Francisco Lopez appeals his conviction and sentence
for arson of an occupied structure. Lopez asserts that the trial court (1)
incorrectly instructed the jurors that, under a “transferred knowledge”
theory, Lopez’s mental state in knowingly burning a tarp could establish
that he knowingly burned an occupied structure, and (2) improperly
excluded two types of admissible evidence. For reasons that follow, we
conclude that the trial court improperly instructed the jurors and that the
error was not harmless. Accordingly, we reverse Lopez’s conviction and
remand for further proceedings consistent with this decision. We further
address the evidentiary issues Lopez has raised because they are likely to
reoccur on remand.

                FACTS AND PROCEDURAL HISTORY

¶2           Lopez lived in a townhome owned by D.J., who handled
Lopez’s finances and was the payee for his Social Security disability
checks. D.J. was at a barbecue with her one-year-old daughter when she
received a call from Lopez, who was at home with D.J.’s other two
children. Lopez had argued with his ex-wife earlier that day and had
been drinking. Lopez was upset, and he told D.J. that the house was open
and unlocked. Worried, D.J. returned home to find Lopez in the driveway
yelling.

¶3            Lopez argued with D.J. and at some point told her he was
going to burn down the house. D.J. did not think he was serious and went
inside, but shortly thereafter looked through the door and saw flames.
Using a cigarette lighter, Lopez had lit on fire a tarp that hung down from
a beam along the outside of the carport. After the tarp began burning,
Lopez grabbed a nearby garden hose and put out the fire. By that time,
the fire had burned approximately half of the tarp and had charred the
stucco along the outside of the carport beam.




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                            STATE v. LOPEZ
                           Opinion of the Court

¶4            Shortly after Lopez put out the fire, D.J.’s fiancé came to the
house and began to argue and fight with Lopez. Police officers responded
to a call from a neighbor reporting the fight, and when they arrived at the
house, they became aware that there had been a fire and contacted the
Phoenix Fire Department.

¶5            A fire investigator interviewed Lopez, who acknowledged
lighting the tarp on fire and indicated that it went up in flames much
faster than he thought it would. Lopez stated that he had started the fire
because D.J. had yelled at him for calling her, and that he decided to “give
her a reason to yell.”

¶6            The State indicted Lopez on one count of arson of an
occupied structure, a class 2 felony, and two counts of endangerment,
each a class 6 felony. The State alleged three prior felony convictions and
three aggravating circumstances. Prior to trial, the court dismissed one of
the endangerment counts at the State’s request.

¶7            At trial, after considering the evidence detailed above and
being instructed on the elements of the offenses and on the theory of
“transferred knowledge,” the jury convicted Lopez of arson of an
occupied structure, but acquitted him of endangerment. The jury found
that the State had not established two of the alleged aggravating factors,
and was unable to reach a verdict on the third.

¶8            The trial court found that Lopez had three prior felony
convictions and sentenced him as a repetitive offender to a mitigated 12-
year prison term. Lopez timely appealed, and we have jurisdiction under
Article 6, Section 9, of the Arizona Constitution and Arizona Revised
Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033. 1

                              DISCUSSION

I.    Instruction on Transferred Knowledge.

¶9            Lopez argues that the trial court erred by instructing the jury
regarding “transferred knowledge,” and that the error was not harmless.
We conclude that the instruction improperly eliminated from
consideration an element of the charged arson offense, and that the error
thus requires that Lopez’s conviction be vacated.

1     Absent material revisions after the relevant date, we cite a statute’s
current version.



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                             STATE v. LOPEZ
                            Opinion of the Court

¶10          We review de novo whether a jury instruction correctly states
the law. State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997). If
the defendant timely objected to an instruction that incorrectly states the
law, we conduct a harmless error analysis. State v. Gomez, 211 Ariz. 494,
499–500, ¶¶ 24–26, 123 P.3d 1131, 1136–37 (2005).

¶11           Arson of an occupied structure is defined in A.R.S. § 13-
1704(A):

       A person commits arson of an occupied structure by
       knowingly and unlawfully damaging an occupied structure
       by knowingly causing a fire or explosion.

¶12            In addition to instructing on the elements of this offense, the
trial court defined the culpable mental state of “knowingly” 2 and gave the
following instruction concerning “transferred knowledge”:

       You may find that the defendant acted knowingly as to [D.J.]
       on the charge of arson of an occupied structure, arson of a
       structure, or arson of property if you find transferred
       knowledge. Transferred knowledge is established if the
       actual result of the defendant’s action differs from that
       which the defendant knew or contemplated, only in the
       respect that: One, a different person or a different property is
       injured or affected; or two, the injury or harm known or
       contemplated would have been more serious or extensive
       than that caused.

The court gave the transferred knowledge instruction at the State’s request
over Lopez’s objection, adapting the instruction from the Revised Arizona
Jury Instruction (“RAJI”) pertaining to “transferred intent.” See RAJI Stat.
Crim. 2.024.

¶13           The concept of a transferred mental state has long been
recognized in Arizona and applies, for example, in the “bad aim” situation
in which a defendant intends to hit one party but misses and accidentally
hits another. Under that scenario, the defendant’s felonious intent toward

2      The court instructed the jurors that “knowingly” means “that a
person is aware or believes that his or her conduct is of that nature or that
the circumstance exists. It does not require any knowledge of the
unlawfulness of the act or omission.”




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                            STATE v. LOPEZ
                           Opinion of the Court

the person he missed is transferred and deemed to apply to the person he
unintentionally hit. See State v. Cantua-Ramirez, 149 Ariz. 377, 379, 718
P.2d 1030, 1032 (App. 1986).

¶14           A.R.S. § 13-203(B)(1) codifies the transferred mental state
concept for “intentional” crimes:

      If intentionally causing a particular result is an element of an
      offense, and the actual result is not within the intention or
      contemplation of the person, that element is established if:

      The actual result differs from that intended or contemplated
      only in the respect that a different person or different
      property is injured or affected or that the injury or harm
      intended or contemplated would have been more serious or
      extensive than that caused[.]

Section 13-203(C) similarly provides for a transferred culpable mental
state with respect to “reckless” or “negligent” conduct. There is no
comparable statutory provision, however, referencing the culpable mental
state of “knowingly.”

¶15           Although there is not a statutory basis for a transferred
mental state instruction regarding “knowing” conduct, in State v. Amaya-
Ruiz, 166 Ariz. 152, 173, 800 P.2d 1260, 1281 (1990), the Arizona Supreme
Court suggested that such an instruction might be appropriate in certain
instances. The court ruled however, that some criminal statutes are
worded in such a way as to preclude a transferred intent instruction,
because the instruction would improperly permit jurors to convict
without finding every element of the offense. Id. (reversing manslaughter
conviction for knowingly or recklessly causing the death of an unborn
child by any physical injury to the mother based on transferred intent
instruction that allowed conviction based only on intent toward mother,
“without finding the mental state toward the unborn child required by
[A.R.S. § 13-1103(A)(5)]”).

¶16           Based on the reasoning in Amaya-Ruiz, a transferred intent
mental state instruction is similarly improper in a case involving a charge
of arson of an occupied structure. As noted previously, arson of an
occupied structure (a class 2 felony) requires a showing that the defendant
knowingly damaged an occupied structure by knowingly causing a fire or
explosion. In contrast, arson of a structure (a class 4 felony) and arson of
property (a class 4 or 5 felony or a class 1 misdemeanor depending on the
value of the property) require only a showing that the defendant


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                             STATE v. LOPEZ
                            Opinion of the Court

“knowingly and unlawfully damag[ed] a structure or property by
knowingly causing a fire or explosion.” A.R.S. § 13-1703(A). The
transferred intent instruction here improperly permitted the jurors to
convict without finding every element of the charged offense; they were
instructed that they could convict Lopez of knowingly burning an
occupied structure simply because he knowingly burned property (the
tarp).

¶17           The State asserts that any error in giving the transferred
knowledge instruction was harmless. We conclude otherwise, however,
because although the State presented evidence that the tarp was attached
to the house (which would mean that transferred intent regarding the tarp
was irrelevant), the prosecutor specifically argued that Lopez’s mental
state in knowingly burning the tarp was dispositive regardless whether
the tarp was part of the house:

       [E]ven if you want to consider [the argument that] the tarp is
       anything other than part of the house, the fact that he set the
       tarp on fire and that burned the house, he is still acting
       knowingly. By setting the tarp on fire, his knowledge of
       setting the tarp on fire transfers to the house being burned.
       And this is the bottom line. If you knowingly started any
       fire, then he knowingly damaged the house. And that
       means knowingly has been proven.

Under the circumstances presented, we cannot say that “the guilty verdict
actually rendered in this trial was surely unattributable to the error.” State
v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993) (emphasis and
citation omitted).    Accordingly, we vacate Lopez’s conviction and
sentence and remand for a new trial.

¶18        Although our ruling renders Lopez’s remaining arguments
moot, we nonetheless address them because they will be relevant on
remand.

II.    Preclusion of Evidence.

¶19           Lopez argues that the trial court erred by precluding
evidence of his brain injury and of the fight he was involved in with D.J.’s
fiancé following the fire incident. We review a trial court’s rulings on the
admissibility of evidence for abuse of discretion. State v. Davolt, 207 Ariz.
191, 208, ¶ 60, 84 P.3d 456, 473 (2004). We review de novo, however,
questions of law relating to admissibility. State v. Moran, 151 Ariz. 378,
381, 728 P.2d 248, 251 (1986).


                                      6
                             STATE v. LOPEZ
                            Opinion of the Court

       A.     Evidence of Brain Injury.

¶20          The trial court granted the State’s motion in limine to
preclude Lopez from introducing evidence of his 2001 brain injury and
resulting mental disability, finding that, under State v. Mott, 187 Ariz. 536,
539–45, 931 P.2d 1046, 1049–55 (1997), such information was inadmissible
“diminished capacity” evidence. Lopez contends that the evidence should
have been admitted because it “was relevant to a trait of character that
was pertinent to his defense, i.e., the trait of acting impulsively under
stress without being aware of the consequences of his actions.”

¶21           Arizona does not recognize a “diminished capacity” defense,
and (absent a guilty except insane defense) a defendant may not present
evidence of a mental disease or defect alleged to have rendered him
incapable of forming the requisite mens rea. Id. Although Lopez
characterizes the proposed evidence regarding his brain injury and mental
condition as character trait evidence rebutting a specified mental state for
the charged offense, the trial court correctly ruled that the proposed
evidence was relevant only to Lopez’s “diminished capacity to appreciate
his conduct.” See State v. Buot, 232 Ariz. 432, 436, ¶ 20, 306 P.3d 89, 93
(App. 2013) (holding that “a defendant charged with second-degree
murder may not offer evidence that due to a character trait of impulsivity,
he did not act knowingly or recklessly because he lacked the power to
control his actions”).

¶22            Lopez’s reliance on State v. Christensen, 129 Ariz. 32, 628 P.2d
580 (1981), is misplaced. In Christensen, the Arizona Supreme Court held
that expert psychiatric testimony on the subject of the defendant’s
character trait of acting impulsively is admissible to rebut a charge of first
degree, premeditated murder. Id. at 34–35, 628 P.2d at 582–83. That
holding has been limited, however, to cases involving evidence offered to
rebut premeditation. See Buot, 232 Ariz. at 436, ¶ 18, 306 P.3d at 93 (noting
that “we do not understand Christensen to require a court to admit
character trait evidence of impulsivity to prove a defendant did not act
knowingly or recklessly”).

¶23            Finally, Lopez asserts that Arizona’s rule precluding
evidence of diminished capacity to negate the culpable mental state for an
offense violates the Due Process Clause of the United States Constitution.
But the United States Supreme Court has specifically held that exclusion
of this type of evidence does not violate principles of due process. Clark v.
Arizona, 548 U.S. 735, 779 (2006). Accordingly, the trial court did not err
by precluding evidence of Lopez’s brain injury.


                                      7
                             STATE v. LOPEZ
                            Opinion of the Court

       B.     Extrinsic Evidence of Lopez’s Fight with D.J.’s Fiancé.

¶24           Lopez argues that the trial court erred by precluding
evidence concerning his fight with D.J.’s fiancé after the fire. Lopez
sought in particular to introduce evidence that D.J.’s fiancé started the
fight. Lopez claims this evidence was relevant to whether D.J. lied when
she told the police that Lopez started the fight, and by extension, that D.J.
lied when she reported that Lopez threatened to burn down the house
before lighting the tarp on fire.

¶25            The trial court did not err by precluding this evidence. The
issue of who started the fight between Lopez and D.J.’s fiancé was a
collateral matter that was not relevant to Lopez’s conduct in setting the
tarp on fire before the fight. Although a witness’s credibility is always
relevant, “[i]t is well settled that when impeaching a witness regarding an
inconsistent fact collateral to the trial issues, the impeaching party is
bound by the witness’ answer and cannot produce extrinsic evidence to
contradict the witness.” State v. Hill, 174 Ariz. 313, 325, 848 P.2d 1375,
1387 (1993). “Evidence is collateral if it could not properly be offered for
any purpose independent of the contradiction.” Id.; see also Ariz. R. Evid.
608(b) (providing that attacks on a witness’s credibility based on specific
instances of conduct, other than conviction of a crime, may not be proved
by extrinsic evidence).          “The nearly universal rule proscribing
impeachment on collateral matters is based on the questionable utility of
such evidence and its potential for confusing or distracting the trier of
fact.” State v. Munguia, 137 Ariz. 69, 71, 668 P.2d 912, 914 (App. 1983).

¶26           Because the question of who started the fight between Lopez
and D.J.’s fiancé was collateral to the issue of Lopez’s guilt, the trial court
did not abuse its discretion by precluding evidence regarding the fight.

                              CONCLUSION

¶27          For the reasons stated, we reverse Lopez’s conviction and
sentence and remand for further proceedings consistent with this decision.




                                      :MJT




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