State v. LaraState v. Lara
- Reporters:
- , , ,
- Before:
- Martone
OPINION
MARTONE, Justice.Miguel Lara was convicted of aggravated assault. The court of appeals reversed, concluding that Lara was entitled to a “voluntary act” instruction and a lesser included offense instruction on disorderly conduct. State v. Lara, 179 Ariz. 578, 880 P.2d 1124 (App.1994). Disagreeing with these conclusions, and believing that the “voluntary act” instruction raised an issue of importance, we granted review.
After having been stalked and assaulted by Lara, A1 Bartlett called the Tucson police and complained that Lara would not leave his house. Tucson police officer Kucsmas answered the call and was told by Bartlett that Lara was inside. Kucsmas walked in, saw Lara lying down on a couch and asked him to stand up. Lara got up and pointed a knife at Kucsmas. Kucsmas backed off and called for help. He retreated down a corridor, drew his pistol and told Lara to stop or he would shoot. Instead, Lara continued to walk towards him, called him names and slashed at him with the knife. Lara backed Kucsmas out of the house, swung the knife at him and said he was going to kill him. Finally, with Kucsmas backed into a fence, Lara raised his knife and lunged at him. Kucsmas then shot Lara.
Lara was charged with attempted murder and aggravated assault. A defense psychologist testified that Lara was suffering from some organic brain impairment and personality disorder. In such a person, he would expect to see a reduced ability to use good judgment in social situations, increased agitation, and an increased tendency to fly off into a tantrum or rage as if by reflex. Based on this sort of testimony, Lara asked for a voluntary act instruction under
PART II
The minimum requirement for criminal liability is the performance by a person of conduct which includes a voluntary act or the omission to perform a duty imposed by law which the person is physically capable of performing.
Lara’s expert testimony falls far short of this. He was not unconscious. He was relentless in his effort and determination. He was thus not entitled to a voluntary act instruction under
We acknowledge that the word “voluntary” has been used in two separate senses, and this contributes to the confusion that surrounds the issue. As we hold here,
The State must prove that the defendant did a voluntary act forbidden by law. You may determine that the defendant intended to do the act if the act was done voluntarily.
The first sentence of this instruction is, as we have shown, the
actus reus
of
The second sentence has nothing to do with the first. It allows the jury to draw an inference of intent from an act that is voluntary. But intent is one of our culpable mental states descriptive of
mens rea,
not
actus reus.
See
PART III
The trial court rejected Lara’s request for a disorderly conduct instruction as a lesser included offense of aggravated assault because there was no evidence to support it. The court of appeals reversed and concluded that a jury could have found that Lara knew that he was disturbing the police-
man. 179 Ariz. at 583, 880 P.2d at 1129. We disagree.
In concluding that disorderly conduct can be a lesser included offense of aggravated assault, the court of appeals relied upon State v. Angle, 149 Ariz. 478, 720 P.2d 79 (1986). Assuming, without deciding, the continuing validity of that opinion, there nevertheless must be evidence to support the lesser offense to justify the instruction. There is none here. Lara’s attack on the policeman was relentless and deadly. He slashed at him with a knife and told him he was going to kill him. Kucsmas had to shoot him to stop him. In Angle, there was a dispute as to whether the police were in reasonable apprehension of imminent bodily injury. The jury could have found otherwise and thus the lesser included offense instruction was justified by the evidence. In this case, it is undisputed that Kucsmas was in apprehension of imminent bodily injury. It is not possible that the jury could have found that Kucsmas was only disturbed. Moreover, even if relevant, the expert testimony could not have supported a finding of knowledge but not intent. Lara was either guilty of aggravated assault or he was not. We conclude that the evidence in this case did not justify a lesser included offense instruction.
PART IV
We affirm the judgment of the trial court. We vacate those parts of the opinion of the court of appeals that address the voluntary act and lesser included offense instructions.
FELDMAN, C.J., MOELLER, V.C.J. and CORCORAN and ZLAKET, JJ., concur.
Notes
. Defendant’s Requested Instruction No. 4 was: The State must prove that the defendant did a voluntary act forbidden by law. ‘Voluntary act’ means a bodily movement performed consciously and as a result of effort and determination.
. Now
. Now
. While Sandstrom v. Montana, 442 U.S. 510, 512, 524, 99 S.Ct. 2450, 2453, 2459, 61 L.Ed.2d 39 (1979) holds that a burden shifting or conclusive presumption instruction (“the law presumes that a person intends the ordinary consequences of his voluntary acts”) violates due process, the law has always allowed an instruction like the second sentence of Standard 17 here that allows, but does not require, the jury to infer intent from voluntary conduct. State v. Rodriguez, 114 Ariz. 331, 333, 560 P.2d 1238, 1240 (1977) (“The law in Arizona is that a specific intent to do an act may be inferred from the circumstances of the doing of the act itself.”). See State v. Oppenheimer, 138 Ariz. 120, 125, 673 P.2d 318, 323 (App.1983); State v. Earby, 136 Ariz. 246, 248, 665 P.2d 590, 592 (App.1983).