Disorderly Conduct Appeal Case In Arizona

A lesser-included-offense instruction is proper only if: (1) the lesser offense is composed of some, but not all, of the elements of the greater crime so that it is impossible to commit the greater without committing the lesser offense. (2) the evidence supports an instruction on the lesser offense. See Angle, 149 Ariz. at 507, 720 P.2d at 108 (Kleinschmidt, J., dissenting). X does not contest that the evidence adduced at trial supported the disorderly conduct instruction. Accordingly, we address only whether it is impossible to commit aggravated assault under A.R.S. section 13-1204(A)(2) without also committing the lesser offense of disorderly conduct under section 13-2904(A)(6). A person commits aggravated assault under A.R.S. section 13-1204(A)(2) if he (1) intentionally places a person in reasonable apprehension of imminent bodily injury by (2) using a deadly weapon or dangerous instrument. Id. at 508, 720 P.2d at 109 (Kleinschmidt, J., dissenting). A person commits disorderly conduct under section 13-2904(A)(6) if he (1) intentionally or knowingly disturbs a person's peace or quiet by (2) recklessly handling, displaying, or discharging a deadly weapon or dangerous instrument. Id. Our supreme court concluded in Angle that a person who commits aggravated assault under section 13-1204(A)(2) necessarily commits disorderly conduct under section 13-2904(A)(6), reasoning "that as a matter of common sense it is impossible to put a person in reasonable apprehension of imminent bodily injury without also disturbing that person's peace or quiet." Angle, 149 Ariz. at 508, 720 P.2d at 109 (Kleinschmidt, J., dissenting). Accordingly, the court held that disorderly conduct under section 13-2904(A)(6) is a lesser-included offense of aggravated assault under section 13-1204(A)(2). Id.; see also State v. Foster, 191 Ariz. 355, 357, 955 P.2d 993, P 9, 995 (App. 1998) (Following Angle, disorderly conduct under section 13-2904(A)(6) is a lesser- included offense of assault under section 13-1203(A)(2).). The Cutright court addressed the same issue decided by Angle, but held that disorderly conduct under section 13-2904(A)(6) is not a lesser-included offense of aggravated assault under section 13-1204(A)(2). Cutright, 196 Ariz. 567, P 1, 2 P.3d at 659. The court reasoned that Angle had been "undercut" because this court's decision in Maricopa County Juvenile Action No. JV133051, 184 Ariz. 473, 910 P.2d 18 (App. 1995), added an element to the offense of disorderly conduct not present in the offense of aggravated assault. 196 Ariz. 567, P19, 2 P.3d at 661. Specifically, JV133051 held that a conviction for disorderly conduct requires a showing that the victim was "within the peace" when the disorderly act occurred. Id. (citing JV133051, 184 Ariz. at 475, 910 P.2d at 20). Unless the victim is "'in repose of mind and peaceful intent'" before commencement of the disorderly act, the victim's "peace" cannot be "disturbed." 2 Id. (quoting JV133051, 184 Ariz. at 475, 910 P.2d at 20). to Cutright, because disorderly conduct now includes a requirement that the victim be in repose before the conduct occurs, a factor not considered in Angle, and the state need not show that the victim was in repose in order to prove aggravated assault, the elements of disorderly conduct are no longer entirely encompassed within the offense of aggravated assault. Cutright, 196 Ariz. 567, P 20, 2 P.3d at 661. Not surprisingly, X asks us to follow Cutright's lead and hold that the trial court erred by instructing the jury on disorderly conduct under section 13-2904(A)(6) as it is not a lesser-included offense of aggravated assault under section 13-1204(A)(2). We decline to do so. This court is bound by the decisions of the supreme court and has "'no authority to overrule, modify, or disregard them . . . .'" State v. Thompson, 194 Ariz. 295, 298, 981 P.2d 595, P 20, 598 (App. 1999) (citation omitted). The Cutright court did not believe itself bound by Angle in light of the holding in JV133051. Cutright, 196 Ariz. 567, P 19, 2 P.3d at 661. We respectfully disagree with both Cutright and JV133051. Because the elements for disorderly conduct and aggravated assault have not been changed by the legislature or interpreted differently by the supreme court since the issuance of Angle, we accept the on-going viability of that opinion. Accordingly, Angle controls this issue unless and until the supreme court decides otherwise. Id.