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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

FREDDY AVERY PADILLA, Appellant.

No. 1 CA-CR 19-0210 

Appeal from the Superior Court in Maricopa County

No. CR2018-100001-001

The Honorable John Christian Rea, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Mark E. Dwyer

Counsel for Appellant

FILED 4-7-2020
STATE v. PADILLA

Decision of the Court

2

MEMORANDUM DECISION

Judge David B. Gass delivered the decision of the Court, in which 

Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz

joined.

G A S S, Judge:

¶1 Freddy Padilla (Padilla) appeals a conviction from the 

superior court on one count of misconduct involving weapons. Because 

the superior court did not abuse its discretion when it denied Padilla’s 

request for a mere presence jury instruction, this court affirms Padilla’s 

conviction and sentence.

FACTUAL AND PROCEDURAL HISTORY

¶2 On the evening of December 31, 2017, Phoenix police officers 

Ivan Villafana (Villafana) and Seth Fretheim (Fretheim) responded to a 

911 call reporting a subject with a gun. The officers responded to the call 

and found a man and car matching the description in the 911 call. The car

was parked at a gas station’s southernmost pump. Officer Jeremy Ennis 

(Ennis) pulled alongside the patrol car and assisted Villafana and 

Fretheim in a high-risk stop.

¶3 Padilla appeared to be the sole occupant of the car. The 

officers ordered Padilla out of the car. After Villafana gave several loud 

commands to Padilla to come out with his hands up, Padilla hesitated to 

leave the car. Padilla opened the door partially and bent his upper body 

over at the waist “either manipulating or reaching or dropping something 

in between his feet” or in the general area. Padilla was arrested upon 

exiting the car.

¶4 After Padilla was detained, Ennis approached the car from 

the driver’s side to clear it and make sure no one else was inside. Ennis 

could plainly see a black and gray handgun underneath the seat from the 

outside of the vehicle. The gun was in the same area Villafana saw Padilla 

reach and drop something.

¶5 Padilla was taken to the Central City Precinct Station and 

advised of his Miranda rights. See Miranda v. Arizona, 384 U.S. 436 (1966).

Padilla agreed to speak to Ennis first at the scene of the arrest and later
STATE v. PADILLA

Decision of the Court

3

while he was detained at the Central City Precinct Station. While he was 

interviewed at the scene of the arrest, Padilla acknowledged the gun lying 

underneath the front driver’s seat was his. Padilla further acknowledged 

he was not supposed to have a gun. In a subsequent interview by 

Detective George Fulton, Padilla admitted he got the gun “off the street” 

and paid “roughly 200” for it.

¶6 On January 10, 2018, the State indicted Padilla on one count 

of misconduct involving weapons, a class 4 felony. The State alleged 

Padilla knowingly possessed a deadly weapon while being a prohibited 

possessor. The State subsequently filed an allegation of historical prior 

felony convictions. The parties later stipulated Padilla was a prohibited 

possessor when he was arrested.

¶7 At trial, the defense requested a jury instruction on “mere 

presence.” The defense argued the mere presence instruction was relevant 

for the jury to consider in a weapon possession case. The superior court 

found the instruction did not apply to Padilla’s case and could potentially 

mislead the jury. The superior court, therefore, denied Padilla’s request.

¶8 The trial lasted three days. Padilla did not testify. The jury 

found Padilla guilty of misconduct involving weapons. During a 

subsequent hearing, the superior court determined Padilla had two 

historical prior felonies. Padilla was sentenced to a minimum term of eight 

years in prison with 88 days pre-sentence incarceration credit.

¶9 Padilla filed a timely notice of appeal. This court has 

jurisdiction under A.R.S. § 120.21(A)(1).

ANALYSIS

¶10 This court reviews the denial of a requested jury instruction 

for an abuse of discretion. State v. Wall, 212 Ariz. 1, 3, ¶ 12 (2006). This 

court “will only reverse the superior court’s decision if the jury 

instructions, taken together, would have misled the jurors.” State v. Doerr, 

193 Ariz. 56, 65, ¶ 35 (1998). No reversible error occurs if the instructions 

as a whole adequately cover the law. Id. A requested jury instruction is 

proper so long as the evidence reasonably supports it. State v. Shumway, 

137 Ariz. 585, 588 (1983).

¶11 The RAJI mere presence instruction states:

Guilt cannot be established by the defendant’s mere 

presence at a crime scene, mere association with another 
STATE v. PADILLA

Decision of the Court

4

person at a crime scene or mere knowledge that a crime is 

being committed. The fact that the defendant may have been 

present, or knew that a crime was being committed, does not 

in and of itself make the defendant guilty of the crime 

charged. One who is merely present is a passive observer 

who lacked criminal intent and did not participate in the 

crime.

RAJI (Criminal) Stand. 43 (4th ed. 2016).

¶12 The mere presence instruction, if requested, is required in 

accomplice liability cases based on actual presence. State v. Noriega, 187 

Ariz. 282, 286 (App. 1996). The mere presence instruction may be used in 

cases not involving accomplice liability, but is not required. See id. Here, 

the superior court denied Padilla’s request for a mere presence instruction 

because the jury instructions were adequate and the mere presence 

instruction had the potential to mislead the jury.

¶13 The crux of Padilla’s defense is he did not knowingly 

possess a firearm because he did not know the gun was in the car. The 

jury instructions stated they could find Padilla guilty of misconduct 

involving weapons only if the they found “[t]he defendant knowingly 

possessed a deadly weapon.” The jury instructions further provided a 

definition of “knowingly” and identified different types of “possession.”

As such, the instructions adequately took Padilla’s defense into account. 

By its verdict, the jury found Padilla “acted with awareness” when he 

“exercised dominion and control over” the gun. Given the facts here, the 

jury instructions were sufficient, and a mere presence instruction was 

unnecessary.

¶14 The superior court also found the mere presence instruction 

could potentially mislead the jury. The superior court “need not give an 

instruction that is covered adequately by other instructions, and should 

reject a proffered jury instruction that misstates the law or has the 

potential to mislead or confuse the jury.” State v. Musgrove, 223 Ariz. 164, 

167, ¶ 6 (App. 2009) (citation omitted); see also Doerr, 193 Ariz. at 65, ¶ 35.

¶15 The wording of the mere presence instruction here implied a 

crime was already committed, or the defendant happened to be present at 

a crime scene. This wording did not apply to this case. Padilla was 

convicted of misconduct involving weapons because he was a prohibited 

possessor who was in possession of a firearm. He did not come across a 

crime scene or associate with someone committing a crime. Padilla’s 
STATE v. PADILLA

Decision of the Court

5

possession of the weapon was the crime. The mere presence instruction 

potentially could confuse the jury, leaving it to wonder whether a second 

crime was involved. The superior court, therefore, did not abuse its 

discretion when it found the mere presence instruction could mislead the 

jury.

CONCLUSION

¶16 Because the superior court did not abuse its discretion when 

it denied Padilla’s request for a mere presence instruction, this court 

affirms Padilla’s conviction and sentence.