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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                   RUBEN JAMES SUMPTER, Appellant.

                             No. 1 CA-CR 14-0467
                               FILED 12-8-2015


          Appeal from the Superior Court in Maricopa County
                       No. CR2013-416241-001
          The Honorable Virginia L. Richter, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Tennie B. Martin
Counsel for Appellant
                            STATE v. SUMPTER
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Lawrence F. Winthrop delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Jon W. Thompson joined.


W I N T H R O P, Judge:

¶1             Ruben James Sumpter (“Appellant”) appeals his conviction
for resisting arrest. Appellant argues the trial court abused its discretion by
not providing the jury with a written copy of the preliminary jury
instructions. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY1

¶2            The State charged Appellant by indictment with two counts
of aggravated assault, each a class five felony (Counts 1 and 2), and one
count of resisting arrest, a class six felony (Count 3). The State later alleged
Appellant had four prior felony convictions.

¶3           At trial, shortly before the court advised the jury of the
preliminary jury instructions, defense counsel queried whether jurors
would receive a written copy of those instructions. The following colloquy
between counsel and the court ensued:

              THE COURT: I don’t give copies of the preliminaries[.]
       I only give copies of [the] final [instructions].

              DEFENSE COUNSEL: I’m just requesting that they be
       given copies[,] but I understand the Court.

             THE COURT: Unfortunately[,] I make them listen to
       me read.

              DEFENSE COUNSEL: Your Honor, for the record if I
       just might ask the Court to state the reasons as to why [you
       are] not giving the jurors copies?



1     We view the facts in the light most favorable to sustaining the verdict
and resolve all reasonable inferences against Appellant. See State v. Kiper,
181 Ariz. 62, 64, 887 P.2d 592, 594 (App. 1994).

                                       2
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                             Decision of the Court

               THE COURT: I don’t think they need copies of the
       preliminaries.     I think what they need are the final
       instructions to take with them into the jury room. They need
       to learn to listen to what’s going on and I think that kind of
       trains them to listen to the evidence.

The prosecutor then explained that she, too, preferred for the jury to have a
written copy of the preliminary instructions “because we like them to be
able to understand what the actual charges are, to be able to read the actual
elements of it so they know what to listen for as each [o]fficer and each
civilian is there. We think it’s helpful to them to be able to reference that
during the trial.” The court noted the objection for the record, and
subsequently read the charges and preliminary instructions to the jury,
without providing the jury a written copy of those instructions.

¶4           During the three-day trial, the State presented the testimony
of four police officers. Appellant did not testify, but presented the
testimony of one witness (“D.H.”). After presentation of the evidence, the
court provided jurors with a written copy of the final instructions before
reading those instructions to the jury.

¶5            The jury found Appellant not guilty of Counts 1 and 2, but
guilty of Count 3, resisting arrest. After finding Appellant had four prior
felony convictions, the trial court sentenced him to a presumptive term of
3.75 years’ imprisonment.

¶6            We have jurisdiction over Appellant’s delayed notice of
appeal. See Ariz. Const. art. 6, § 9; Ariz. Rev. Stat. §§ 12-120.21(A)(1), 13-
4031, 13-4033(A).2

                                  ANALYSIS

¶7             Appellant argues we must reverse his conviction because the
trial court abused its discretion in declining counsels’ request that the court
provide the jury with a written copy of the preliminary jury instructions
pursuant to Rule 21.3(d), Ariz. R. Crim. P. We decline to reverse.

¶8            We review a trial court’s decisions pertaining to jury
instructions for an abuse of discretion. See State v. Bolton, 182 Ariz. 290, 309,
896 P.2d 830, 849 (1995); State v. Forde, 233 Ariz. 543, 566, ¶ 90, 315 P.3d 1200,

2      We cite the current version of the applicable statutes because no
revisions material to this decision have occurred since the date of the
offense.

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                             STATE v. SUMPTER
                             Decision of the Court

1223 (2014). “Abuse of discretion is ‘an exercise of discretion which is
manifestly unreasonable, exercised on untenable grounds or for untenable
reasons.’” State v. Wassenaar, 215 Ariz. 565, 570, ¶ 11, 161 P.3d 608, 613
(App. 2007) (citations omitted).

¶9            Rule 21.3(d), Ariz. R. Crim. P., provides as follows: “The
court’s preliminary and final instructions on the law shall be in written form
and a copy of the instructions shall be furnished to each juror before being
read by the court.” Further, as Appellant notes, the Arizona Rules of
Criminal Procedure “shall govern the procedure in all criminal proceedings
in all courts within the State of Arizona.” Ariz. R. Crim. P. 1.1. “The
purpose of the rules of criminal procedure is to protect fundamental rights
of the individual and to promote simplicity in procedure and the
elimination of delay and unnecessary expense.” State ex rel. McDougall v.
Mun. Court, 160 Ariz. 324, 326, 772 P.2d 1177, 1179 (App. 1989) (citing Ariz.
R. Crim. P. 1.2; State v. Gomez, 27 Ariz. App. 248, 553 P.2d 1233 (1976)).

¶10            Appellant has not suggested what preliminary instruction the
jurors needed in writing or how their failure to have that instruction or any
of the preliminary instructions impacted the fairness of the proceedings.
Further, Appellant does not argue that he was harmed by the trial court’s
alleged error; instead, he merely requests that we reverse his conviction as
a “sanction” for the court’s refusal to follow Rule 21.3(d). The language of
Rule 21.3(d) is clear and mandatory. The trial court’s decision to not follow
the mandate of the rule was error. However, “[w]hen an error has been
made in the jury instructions, we consider whether the error was harmless.”
State v. Johnson, 205 Ariz. 413, 421, ¶ 27, 72 P.3d 343, 351 (App. 2003) (citation
omitted); see also State v. Sullivan, 205 Ariz. 285, 289, ¶ 19, 69 P.3d 1006, 1010
(App. 2003) (concluding that a trial court’s deviation from the Portillo
instruction3 is subject to harmless error analysis); cf. State v. White, 160 Ariz.
24, 31-32, 770 P.2d 328, 335-36 (1989) (concluding that the trial court’s
omission of the final presumption of innocence instruction was “harmless,”
and therefore did not constitute fundamental error).

¶11           “Error is harmless if we can conclude beyond a reasonable
doubt that it did not influence the verdict.” Johnson, 205 Ariz. at 421, ¶ 27,
72 P.3d at 351 (citation omitted); see also State v. Williams, 133 Ariz. 220, 225,
650 P.2d 1202, 1207 (1982) (“The test for determining harmless error is
‘whether there was reasonable probability . . . that a verdict might have
been different had the error not been committed.’” (citations omitted));
accord State v. Lacy, 187 Ariz. 340, 348-49, 929 P.2d 1288, 1296-97 (1996)

3      See State v. Portillo, 182 Ariz. 592, 596, 898 P.2d 970, 974 (1995).

                                        4
                           STATE v. SUMPTER
                           Decision of the Court

(concluding that erroneously admitting evidence of an unrelated prior
burglary was harmless error). The State bears the burden of proving
beyond a reasonable doubt that an error was harmless. State v. Henderson,
210 Ariz. 561, 567, ¶ 18, 115 P.3d 601, 607 (2005).

¶12           In this case, the court’s error was harmless because no
reasonable probability exists that the verdict would have been different had
the court provided the jury with a written copy of the preliminary jury
instructions. The trial in this case was short and uncomplicated, and the
evidence presented at trial overwhelmingly supported Appellant’s
conviction for resisting arrest, as shown by the following facts elicited at
trial: At approximately 5:15 a.m. on March 7, 2013, D.H. called 911 after
discovering a man later identified as Appellant on her roof. Phoenix Police
Sergeant Dupra, driving a fully-marked police vehicle and wearing his
fully-marked police uniform—including a metal badge, nameplate, gun
and belt, handcuffs, radio, taser, and decals—responded to the emergency
call.

¶13           As his vehicle approached D.H.’s home, Sergeant Dupra
observed a person (Appellant) matching the physical description provided
by the 911 operator. Sergeant Dupra began to exit his patrol vehicle,
identified himself as a Phoenix police sergeant, and asked to speak with
Appellant.

¶14           Appellant, however, ran westbound down the street and into
the yard of a residence, where he jumped the chain-link fence in front of
that residence. Sergeant Dupra followed initially in his vehicle, and then
got out and jumped over the fence in pursuit of Appellant. Appellant then
picked up a metal lawn chair and threw it at the sergeant, striking his knees.

¶15           Officer Smoke, also dressed in a standard police uniform,
arrived just before Appellant jumped the fence and ordered Appellant to
stop running, but Appellant refused to comply. Officer Smoke followed
Appellant into the yard and grabbed Appellant’s right arm, but Appellant
broke away. Appellant ran toward the residence, grabbed the doorknob of
the metal security door with both hands, and began yanking on it.

¶16          Both Sergeant Dupra and Officer Smoke attempted to gain
control of Appellant by grasping his arms at the front door. Appellant,
however, ripped the hinges of the door from the frame of the house.
According to the officers, Appellant began swinging the door back and
forth at them, despite Officer Smoke telling him to “stop resisting” and
ordering him to place his hands behind his back. Both officers testified they



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                           STATE v. SUMPTER
                           Decision of the Court

were concerned for their safety after Appellant pulled the door off its
hinges.

¶17           The officers eventually removed the door from Appellant’s
grasp, but were still unable to immediately control and handcuff him
because his arms, elbows, and feet continued to flail aggressively, and he
refused to comply with their commands. Eventually, however, the officers
managed to get Appellant on the ground on his back. Appellant continued
to be unwilling to comply, however, and violently flailed his arms, hands,
and legs, “making it next to impossible to get a hold of him and get him in
custody.” Because the officers could not roll Appellant on his stomach to
handcuff him, Officer Smoke deployed his taser.

¶18           Within seconds after Officer Smoke deployed the taser,
however, Appellant continued to fight and flail his arms and legs. Officer
Smoke ordered Appellant to stop resisting, but Appellant refused, and
Officer Smoke activated the taser arc cycle a second time. After the taser
stopped a second time, Appellant “again started flailing around” and acting
aggressively, and Officer Smoke activated the taser a third time.

¶19            Officers Tomco and Jacks arrived at the scene. Officer Jacks
observed Officer Smoke and Sergeant Dupra giving Appellant commands
and attempting to take Appellant into custody, while Appellant refused to
comply with the commands and physically resisted. As Officers Tomco and
Jacks assisted in handcuffing Appellant, Appellant continued to physically
resist by pulling his hands away as the officers tried to pull his arms behind
his back and keep his arms out. Eventually, the four officers were able to
handcuff Appellant.

¶20           After he was handcuffed, Appellant continued to be
combative, kick his feet, and writhe on the ground, so the officers used a
“Ripp restraint” (a cord used to secure one’s feet) to prevent Appellant from
kicking. Both Sergeant Dupra and Officer Smoke sustained cuts and
scrapes during the struggle with Appellant.

¶21           Appellant’s own witness, D.H., testified that on the day of the
incident, she called 911, and when an officer arrived, Appellant became
“frantic” and ran westbound down the street. D.H. observed police officers
chasing Appellant and ordering him to stop, but Appellant failed to comply
and jumped over a residential fence before falling on a table with chairs
surrounding it. According to D.H., Appellant grabbed the residence’s
security door, and when the police tried to pull Appellant off the door, he
tore the door off the house. D.H. “guess[ed]” that Appellant then fell to the



                                      6
                            STATE v. SUMPTER
                            Decision of the Court

ground with the door on top of him, and one or more police officers on top
of the door. D.H. claimed Appellant did not appear to be fighting the
officers, but acknowledged she could not see Appellant after the screen
door came down and while Appellant was on the ground. She also testified
that she heard officers tell Appellant to put his hands behind his back before
she heard Appellant being tased “like four times.” D.H. stated that police
officers then tied Appellant’s legs and arms together.

¶22            Given the evidence presented at trial, no reasonable
probability exists that the jury would have found Appellant not guilty of
resisting arrest had it received a written copy of the preliminary
instructions. Furthermore, not only did the trial court read the preliminary
instructions to the jury, but the oral preliminary instructions provided the
jury mirrored the written preliminary instructions not provided, and the
instructions themselves were straightforward and almost completely
duplicated in the final instructions, which were provided to the jury in both
oral and written form. Additionally, as part of its preliminary instructions,
the court instructed the jury that the final instructions “will control your
deliberations” and that, “after all of the evidence is in[,] I will read and give
you a copy of the final instructions[,] the rules of law you must follow in
reaching your verdict.” We presume the jurors followed the instructions
given them. See State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996).
Given the foregoing, any error by the trial court was harmless beyond a
reasonable doubt. See Cleary v. State, 942 P.2d 736, 750 (Okla. Crim. App.
1997) (concluding the trial court’s failure to give the jury a written copy of
a jury instruction was harmless error); cf. People v. Seaton, 28 P.3d 175, 220
(Cal. 2001) (recognizing that no constitutional right exists to have a physical
copy of jury instructions with the jury during deliberations (citations
omitted)).

                               CONCLUSION

¶23           Appellant’s conviction and sentence are affirmed.




                                    :ama



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