State v. Valles, CR-87-0316-AP

Decision Date21 September 1989
Docket NumberNo. CR-87-0316-AP,CR-87-0316-AP
Citation162 Ariz. 1,780 P.2d 1049
PartiesSTATE of Arizona, Appellee, v. Richard Lino VALLES, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen., by Jessica Gifford-Funkhouser and Joseph T. Maziarz, Asst. Attys. Gen., Phoenix, for appellee.

Dean W. Trebesch, Maricopa County Public Defender, John W. Rood, III, Maricopa County Deputy Public Defender and John M. Antieau, Phoenix, for appellant.

GORDON, Chief Justice.

JURISDICTION

The jury convicted defendant, Richard Lino Valles, of attempted armed robbery, aggravated assault, and two counts of kidnapping. The jury found each offense to be of a dangerous nature. The trial court found that defendant was on parole when these offenses occurred. The trial court sentenced him to four concurrent life sentences pursuant to A.R.S. § 13-604.02(A). The trial court credited defendant with 325 days' presentence incarceration and ordered a $100 felony assessment payment on each count. We have jurisdiction pursuant to article 6, § 5(3) of the Arizona Constitution and A.R.S. §§ 13-4031 and 13-4033.

ISSUES

Did the trial court commit reversible error by admitting evidence of a prior robbery under similar circumstances involving the same victim-witness at the same location?

Did the aggravated assault and dangerousness jury instructions constitute reversible error when the instructions neither defined "deadly weapon" nor stated that use of a replica gun was insufficient to prove an aggravated assault?

FACTS

On January 12, 1987, defendant attempted to rob the Miller's Outpost store at the Byers watched as defendant entered the store, put gauze in his mouth, took a shirt off the rack and draped it over his arm. Defendant approached Hendrickson and asked to see the manager. Recognizing defendant as the same man who robbed the store three weeks earlier, Hendrickson turned away, but defendant called her back. She saw a gun barrel sticking out from under the draped shirt and immediately obeyed. Defendant followed as Hendrickson walked to the back of the store to Greg Meeker. Defendant lifted the shirt, showed Meeker the gun and ordered him to the back room to open the safe.

[162 Ariz. 3] Tri-City Mall in Mesa, Arizona. Because of a prior robbery at that store on December 22, 1986, Detective Donald Byers was on an undercover stake-out, pretending to be a customer. A cashier was at the check-out at the front of the store, Kelly Hendrickson, the sales clerk, was working in the center of the store, and Greg Meeker, the manager, was in the back of the store.

Byers quickly told the cashier to call 911 and report a robbery in progress. Drawing his gun, Byers hurried to the back room. He confronted defendant, identified himself as a police officer, and ordered defendant to drop his gun. Defendant froze. Suddenly, Meeker lunged for defendant's gun and attempted to wrestle it free. They scuffled until defendant pointed his gun at Hendrickson and threatened to shoot her if Meeker did not back off. Meeker let go. Defendant grabbed Meeker and held the gun to his head. Using Meeker as a shield, defendant headed for the rear door. As they approached the exit, Meeker dropped to the floor and defendant bolted out the door. Defendant fled down the sidewalk and back into the mall. Byers chased him, but lost him in the crowd.

A patrol car responding to the 911 call saw defendant run to a car and speed out of the parking lot. Suddenly, defendant braked, skidded, and drove directly into the patrol car, forcing the officer to lose control and swerve into a pole. Defendant sped away. Various witnesses described defendant and the vehicle, but stated that the license number was blacked out.

About two weeks later, detectives from the Mesa Police Department observed defendant driving a vehicle matching the descriptions from the robbery. They followed, but defendant accelerated away. The chase continued until defendant swerved his vehicle around and drove head-on towards the detectives. Again, defendant escaped, but further investigation determined that the vehicle was registered to defendant's girlfriend. Police conducted a stake-out at her residence and confronted defendant there later that day. He fled on foot, but, finally, police captured and arrested him. Police never recovered the gun used in the robbery attempt.

PROCEDURAL HISTORY

The trial court denied defendant's motion in limine to preclude testimony about the prior robbery in December. Kelly Hendrickson, Greg Meeker, and Detective Byers testified at the Dessureault hearing and each unequivocally identified defendant as the same person who attempted the robbery on January 12, 1987. See State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969), cert. denied, 397 U.S. 965, 90 S.Ct. 1000, 25 L.Ed.2d 257 (1970). Hendrickson further identified defendant as the man who committed the December 22, 1986, robbery, but stated that she could not be 100% sure. At trial, all three eyewitnesses unequivocally identified the defendant as the man who committed the January 12 robbery, and the trial judge admitted the following testimony concerning the December 22 robbery:

A. [Hendrickson]: [I] recognized him from the description of the first robbery ...

Q. [Prosecutor]: Now, the man that approached you, is he in the courtroom today?

A. [Hendrickson]: Yes, he is.

Q. [Prosecutor]: Would you please point him out and describe what he is wearing?

A. [Hendrickson]: He is right there in a white shirt and a red and blue tie.

MR. SANDLER: Your Honor, may the record reflect the identification of the defendant.

THE COURT: The record may reflect the identification of the defendant by the witness.

* * * * * *

Q. [Prosecutor]: Were you present during that [December 22] robbery?

A. [Hendrickson]: Yes, I was.

Q. [Prosecutor]: Did you see the individual who robbed the store that time?

A. [Hendrickson]: I had gotten a few glances at him.

Q. [Prosecutor]: Is it the same person that came in the store on the 12th?

A. [Hendrickson]: I assume that it is. He had the same build, same characteristics.

* * * * * *

A. [Hendrickson]: After he approached me and asked me for my manager, at that point I did feel that I recognized him and knew that he was the same man.

Following testimony of the three eyewitnesses at trial, the trial judge denied defendant's motion for a directed verdict. Defendant asserted a mistaken identity defense and did not object to the jury instructions given. The dangerousness instruction defined "dangerous instrument," but failed to define "deadly weapon." The aggravated assault instruction required a finding that defendant used a gun. It did not advise the jury that use of a simulated or replica gun would be insufficient for an aggravated assault conviction.

The jury found defendant guilty on all four counts and found each to be of a dangerous nature. The trial court found that defendant was on parole at the time of the crime and sentenced him to four concurrent life sentences. After the verdicts, defendant filed a motion for new trial alleging that the trial court erred by admitting evidence of the December robbery and that the finding of dangerousness was contrary to the evidence. The trial court denied the motion and defendant timely appealed.

THE PRIOR ROBBERY

Defendant claims that the trial court erred by admitting evidence of the December 22, 1986, robbery. Kelly Hendrickson witnessed both robberies, and although less certain of her identification of defendant in the December robbery, she was positive of his identity in the January 12, 1987, robbery. Defendant relied on a mistaken identity defense. The state offered evidence of the first robbery to reinforce the accuracy of her identification in the second robbery. We believe the evidence of the prior robbery was admissible under the identity exception of Rule 404(b), Arizona Rules of Evidence.

Generally, evidence of prior bad acts or other crimes is inadmissible to prove defendant's bad character or actions in conformity with that character. However, Rule 404(b) of the Arizona Rules of Evidence provides for certain exceptions:

Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show that he acted in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.

(Emphasis added.) See generally M. Udall & J. Livermore, Arizona Law of Evidence § 84 (2nd ed. 1982).

This Court held that evidence of police officer's prior undercover drug transaction with the defendant was admissible to prove the accuracy of the officer's identification when a defendant asserted a mistaken identity defense in a subsequent drug prosecution. State v. Padilla, 122 Ariz. 378, 379, 595 P.2d 170, 171 (1979). In another case, this Court admitted eyewitness testimony from three prior Circle K robberies in a prosecution for murder and armed robbery of a Low Cost Market, a convenience store similar to a Circle K. When the defendant asserted a mistaken identity defense, the court properly admitted the evidence to verify the witnesses' pretrial and in-court identifications. State v. Smith, 146 Ariz. 491, 499, 707 P.2d 289, 297 (1985).

However, in order for a prior crime to be admissible under the identity exception, the modus operandi and circumstances of the two crimes must be sufficiently similar. State v. Brown, 125 Ariz. 160, 161, 608 P.2d 299, 300 (1980) (in a prosecution for robbery of two bowling alleys, the Court admitted evidence of a prior bowling alley robbery where all three robberies involved "casing" of the lanes while using the pinball machines, using a bowling bag to conceal the weapon and carry the stolen cash, and failing to conceal identity). An unrelated bad act with a similar modus operandi may be admissible to identify defendant as the one who committed the crime for...

To continue reading

Request your trial
32 cases
  • State v. Eastlack
    • United States
    • Arizona Supreme Court
    • November 3, 1994
    ...only if it goes to the foundation of the case or deprives the defendant of a right essential to his defense." State v. Valles, 162 Ariz. 1, 6, 780 P.2d 1049, 1054 (1989); see also State v. Gendron, 168 Ariz. 153, 812 P.2d 626 (1991); State v. King, 158 Ariz. 419, 763 P.2d 239 The defendant ......
  • State v. Moody
    • United States
    • Arizona Supreme Court
    • August 9, 2004
    ...However, Moody failed to object to the instruction and therefore did not preserve this issue for appeal.15 See State v. Valles, 162 Ariz. 1, 6, 780 P.2d 1049, 1054 (1989) ("Failure to object to a jury instruction below precludes defendant from claiming error on appeal unless the error is ¶ ......
  • State v. Terrazas
    • United States
    • Arizona Supreme Court
    • August 14, 1997
    ...v. Hyde, 234 Mo. 200, 136 S.W. 316, 331 (1911)). This court has subsequently cited and followed Hughes. See, e.g., State v. Valles, 162 Ariz. 1, 5, 780 P.2d 1049, 1053 (1989); State v. McGann, 132 Ariz. 296, 298, 645 P.2d 811, 813 In 1977, Arizona adopted the Federal Rules of Evidence. Even......
  • Schad v. Schriro
    • United States
    • U.S. District Court — District of Arizona
    • September 28, 2006
    ...the issue was waived on appeal unless the court's failure to define "deadly weapon" constituted fundamental error. State v. Valles, 162 Ariz. 1, 6, 780 P.2d 1049, 1054 (1989); see State v. Zaragoza, 135 Ariz. 63, 66, 659 P.2d 22, 25 (1983) (noting that convictions are rarely overturned on t......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT