State v. Andersen
| Decision Date | 20 July 1993 |
| Docket Number | CA-CR,Nos. 1,s. 1 |
| Citation | 177 Ariz. 381,868 P.2d 964 |
| Parties | STATE of Arizona, Appellee/Respondent, v. John James ANDERSEN, Jr., Appellant/Petitioner. 90-1794, 1 91-1404-PR and 1 92-0148-PR. |
| Court | Arizona Court of Appeals |
John James Andersen, Jr. ("defendant") appeals and twice petitions for review from his conviction and sentence for negligent homicide. For the following reasons, we affirm the judgment, grant review of the petitions and grant relief in part.
Jeffrey Fry worked for the defendant at the defendant's ranch. During the evening of February 6, 1990, the defendant and Fry quarreled and Fry left for a Wickenburg bar. Among Fry's companions at the bar were Lisa Gallagher and Donny Chapman, another person employed on defendant's ranch. After midnight, Fry drove Chapman to the ranch. There, Fry exchanged the brown truck he had been driving for a white truck and returned to Wickenburg, where he picked up Gallagher, attached her horse trailer to the white truck and told her that he wanted to "get his horse." Fry and Gallagher proceeded to the ranch. When they arrived, they saw the defendant standing near the vehicles parked by the ranch house. The defendant asked Fry what he was doing and Fry answered that he had come to pick up his horse. The defendant responded that the horse did not belong to Fry. When Fry went to the corral, the defendant pulled the keys from the ignition of the white truck and removed a rifle from the passenger compartment of the brown truck. The defendant proceeded to go inside the ranch house, whereupon Fry pulled the telephone wires out of the wall on the side of the house. The defendant came out of the house with the rifle and, according to Gallagher, pointed it at Fry's head. Gallagher heard a single shot and then saw Fry lying on the ground near the horse trailer. Gallagher testified that when she attempted to approach Fry, the defendant pointed the rifle at her. The police were summoned and arrested the defendant. Fry died later from the gunshot wound to his head.
The defendant was indicted for the first-degree murder of Fry and aggravated assault of Gallagher. At trial, he maintained that the shooting was accidental. He testified that Fry did not have permission to take the horse and that, while they were arguing, Fry pushed him against the side of the horse trailer and, as he fell, the rifle hit the trailer and discharged. The defendant denied having pointed the weapon at either Fry or Gallagher. He did admit to having consumed at least seven drinks of whiskey or beer during the six hours prior to the shooting. A sheriff's deputy who responded to the shooting testified that the defendant was intoxicated.
The trial court instructed the jury on first- and second-degree murder, manslaughter and negligent homicide. The jury was also instructed on justification for defense of property. However, the court determined, and defense counsel conceded, that the evidence did not support an instruction on self-defense. The jury found the defendant guilty of negligent homicide of Fry and not guilty of aggravated assault on Gallagher.
At sentencing, the trial court found that the negligent homicide conviction was a dangerous offense under Ariz.Rev.Stat.Ann. ("A.R.S.") § 13-604 and sentenced the defendant to an enhanced, aggravated term of eight years imprisonment, with 32 days of presentence incarceration credit. Prior to imposing sentence, the court listed the following aggravating factors: the use of a gun, Fry's death, the emotional and economic harm to Fry's family, and the potential danger to Gallagher from the gun. In addition, the court ordered the defendant to pay restitution of $11,822.91 and a $100 felony assessment.
The defendant timely appealed. While his appeal was pending, he filed two petitions for post-conviction relief, both of which were denied by the trial court without evidentiary hearings. After his motions for rehearing on the petitions also were denied, the defendant filed petitions for review in this court, which were consolidated with the defendant's appeal.
The defendant raises three issues on appeal 1. Whether he was improperly sentenced because the dangerous nature of the felony was not determined by the jury as required by A.R.S. § 13-604(K);
2. whether the trial court considered an improper factor in imposing an aggravated sentence, and
3. whether his trial counsel was ineffective.
The defendant contends that he was improperly sentenced as a dangerous offender because the dangerous nature of the felony was not determined by the jury as required by A.R.S. § 13-604(K). Because the defendant failed to object to the enhancement of his sentence, we will review the application of the statute for fundamental error only. E.g., State v. Atwood, 171 Ariz. 576, 629, 832 P.2d 593, 646 (1992), cert. denied, 506 U.S. 1084, 113 S.Ct. 1058, 122 L.Ed.2d 364 (1993).
Dangerousness, i.e., the use or exhibition of a deadly weapon or dangerous instrument, is not necessarily an element of negligent homicide. State v. Parker, 128 Ariz. 97, 99, 624 P.2d 294, 296 (1981). In this case, imposition of the enhanced sentence was valid if the dangerous nature of the felony was charged and "admitted or found by the trier of fact." A.R.S. § 13-604(K). The defendant's testimony can supply the requisite admission. State v. Hudson, 152 Ariz. 121, 126, 730 P.2d 830, 835 (1986) (); State v. Moya, 140 Ariz. 508, 510, 683 P.2d 307, 309 (App.1984) (). "Use" and "exhibition" are undefined under the criminal code and, in the context of this statute, have not been the subject of prior judicial construction. The focus in this case is upon "exhibition" of the rifle.
In Patterson v. State, 769 S.W.2d 938, 941 (Tex.Cr.App.1989), the court construed a sentence-enhancement statute virtually identical to that of Arizona 1 and stated that " '[e]xhibit' only requires that a deadly weapon be consciously shown, displayed, or presented to be viewed." Id. According to Webster's New Universal Unabridged Dictionary (2d ed. 1983), the term "exhibit" means "to present to public view; show; display." Accord Random House Dictionary of the English Language (2d ed. unabridged 1987); Oxford English Dictionary (1933).
Considering these definitions, we find that the defendant admitted the exhibition of the rifle. He testified that he held the rifle, that it was in his hand when he was within two feet of Fry. While he denied pointing the rifle at Fry or Gallagher and said that he had no intention of doing anything with it, the defendant acknowledged that he and Fry were "hassling over a gun and it went off." These statements adequately established an exhibition of the rifle. Thus, submitting the allegation of dangerousness to the jury was unnecessary and the enhanced sentence was properly imposed based on the defendant's own testimony.
The defendant argues that the trial court erred when it found as an aggravating factor that he caused "potential danger" to Gallagher by "waving a loaded firearm drunkenly." 2 According to the defendant, his sentence was improperly increased because the court considered conduct that was the subject of an acquittal. As the defendant failed to object to the consideration of this aggravating factor, we will review this issue Conduct which resulted in a criminal charge of which a defendant is acquitted may be considered to aggravate his sentence. State v. Kelly, 122 Ariz. 495, 498-99, 595 P.2d 1040, 1043-44 (App.1979). Additionally, the jury in this case, because it was instructed as to only the defendant's intentional conduct in threatening Gallagher, did not determine whether the defendant was reckless or negligent. The trial court's finding that the defendant endangered Gallagher was amply supported by the record and reflected an appropriate concern for the potential risk the defendant posed to another person. See State v. McCuin, 167 Ariz. 447, 450, 808 P.2d 332, 335 (App.1991), vacated in part on other grounds, 171 Ariz. 171, 829 P.2d 1217 (1992) (); State v. Williams, 134 Ariz. 411, 414, 656 P.2d 1272, 1275 (App.1982) ().
[177 Ariz. 385] for fundamental error only. E.g., Atwood, 171 Ariz. at 629, 832 P.2d at 646.
We do not address the claims of ineffective assistance of trial counsel raised only in the defendant's appeal. Such claims must be presented to the trial court in a petition for post-conviction relief. E.g., Atwood, 171 Ariz. at 599, 832 P.2d at 618; State v. Valdez, 160 Ariz. 9, 15, 770 P.2d 313, 319 (1989). The other allegations regarding counsel will be addressed in the context of the first petition for post-conviction relief.
Only those claims raised in the petition for post-conviction relief and preserved in the motion for rehearing are subject to appellate review. E.g., State...
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