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State v. Lopez9/15/2004
A jury found appellant Oscar Manuel Lopez guilty of misconduct involving weapons by possessing a deadly weapon when prohibited from doing so. The 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 refusing his proffered jury instruction on "passing control." We 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 against Lopez. See State v. Riley, 196 Ariz. 40, 992 P.2d 1135 (App.1999). In August 2002, off-duty border patrol agent Charles Sachs was 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 pulled 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 had 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 found him guilty 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 required to prove. The 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 that stipulation was read to the jury.
5 Lopez now contends the trial court abused its discretion by not compelling the state to accept his first stipulation that he was a prohibited possessor, and by failing to recognize that it had discretion to do so. He relies primarily on *885 State v. Leonard, 151 Ariz. 1, 8, 725 P.2d 493, 500 (App.1986), 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 (DUI), holding that "the state is not required to accept a stipulation when the prejudicial potential of the evidence 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 evidence of the defendant's guilt.
6 In State ex rel. Romley v. Galati, 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 convictions, provided the jury would not hear about them. The state refused on the ground that the court could not preclude the jury from hearing evidence on those elements. The supreme
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