State v. Barnett, 6084

• Citation: 142 Ariz. 592,691 P.2d 683
• Decision Date: 26 November 1984
• Docket Number: No. 6084,6084
• Parties: STATE of Arizona, Appellee, v. Richard BARNETT, Appellant.
• Court: Arizona Supreme Court

Page 683

691 P.2d 683

142 Ariz. 592

STATE of Arizona, Appellee, v. Richard BARNETT, Appellant.

No. 6084.

Supreme Court of Arizona,

In Banc.

Nov. 26, 1984.

Robert K. Corbin, Atty. Gen., William J. Schafer III, Chief Counsel Criminal Division, Galen H. Wilkes, Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, James R. Hart, II, Deputy Public Defender, Phoenix, for appellant.

GORDON, Vice Chief Justice:

Defendant Richard T. Barnett was indicted for aggravated assault, a class three felony, for shooting at a police officer during a confrontation. At the time of the shooting, defendant was on release on his own recognizance from an Ohio felony charge of aggravated burglary.

Prior to trial the state filed an allegation of dangerousness pursuant to A.R.S. § 13-604.01(A) which provided for a life sentence if defendant's Ohio "release" was "any other release." Defendant moved to dismiss the allegation of dangerousness on the ground that defendant was not on the type of release contemplated by A.R.S. § 13-604.01. A short time later, the state also alleged that defendant committed the crime while on bail or on his own recognizance under A.R.S. § 13-604(M). The trial court denied defendant's motion to dismiss the state's allegation of dangerousness under A.R.S. § 13-604.01.

At trial, defendant's primary defense was that he was so drunk he could not form the requisite intent to commit the crime. He was found guilty of aggravated assault with a deadly weapon, a class three felony. After trial, defendant admitted that he had been on release on his own recognizance from a felony charge in Ohio on the date of the offense herein. The trial judge sentenced defendant to "be imprisoned for a term of life, without possibility of parole for twenty-five years" pursuant to A.R.S. § 13-604.01(A). Since defendant was sentenced to life imprisonment, we have jurisdiction pursuant to Ariz. Const. art. 6, § 5(3) and A.R.S. § 13-4031.

Defendant raised three issues on appeal:

(1) Whether the trial court erred in failing, sua sponte, to give an instruction to the jury defining "intentionally."

(2) Whether the trial court erred in sentencing defendant to a life sentence pursuant to the mandatory provisions of A.R.S. § 13-604.01.

(3) Whether there was a factual basis for finding that defendant was susceptible to the sentencing provisions of A.R.S. § 13-604.01(A).

I

Defendant first contends that the trial court should have sua sponte given an instruction defining the word "intentionally" as used in the crime of assault.

In instructing the jury on the rules of law applicable to the case, the trial judge defined aggravated assault as follows:

"The crime of aggravated assault requires proof of the following two things:

"(1) The defendant committed an assault; and

"(2) The defendant used a deadly weapon, firearm or dangerous instrument."

The trial judge also instructed the jury on "assault":

"The crime of assault requires proof that:

"The Defendant intentionally put another person in reasonable apprehension of immediate physical injury." (emphasis added.)

Thereafter the trial judge instructed the jury with respect to the intoxication defense:

"No act committed by a person while intoxicated is less criminal by reason of his having been in such condition. However, for the crime of aggravated assault there must be proof that the Defendant acted intentionally. If you determine that the Defendant was intoxicated at the time, you may consider the fact that he was intoxicated in determining whether he could have intentionally committed the crime." (emphasis added)

We first note that there was no attempt by defense counsel to introduce an instruction defining "intentionally" or an objection on the court's failure to so instruct the jury. If a defendant does not object to a trial court's failure to give an instruction, the defendant may not claim error on appeal unless the failure to give an instruction rises to the level of fundamental error. State v. Mincey, 130 Ariz. 389, 636 P.2d 637 (1981), cert. denied, 455 U.S. 1003, 102 S.Ct. 1638, 71 L.Ed.2d 871 (1982); State v. Dippre, 121 Ariz. 596, 592 P.2d 1252 (1979). Arizona Rules of Criminal Procedure, 21.3(c). Error is fundamental only if it goes to the foundation of the case or takes from a defendant a right essential to his defense. State v. Mincey, supra; State v. Pulliam, 87 Ariz. 216, 349 P.2d 781 (1960).

Generally, a court need not define every phrase or word used by it in instructions given in a criminal prosecution. Where terms used in an instruction have no technical meaning peculiar to the law in the case but are used in their ordinary sense and commonly understood by those familiar with the English language, the court need not define these terms. State v. deBoucher, 135 Ariz. 220, 660 P.2d 471 (App.1983). See State v. Bice, 127 Ariz. 312, 620 P.2d 227 (App.1980); State v. Beers, 8 Ariz.App. 534, 448 P.2d 104 (1968). See also A.R.S. § 1-213. ¹

In this case, the trial court's instructions on assault and aggravated assault were derived from A.R.S. §§ 13-1203(A)(2) and 13-1204(A)(2). ² "Intentionally" as used in § 13-1203(A)(2) has been determined to be a general intent requirement; that is, the defendant need only intend the acts which he performed. State v. Greenawalt, 128 Ariz. 388, 626 P.2d 118 (1981); State v. Bustamonte, 122 Ariz. 105, 593 P.2d 659 (1979). Thus it is evident that the word "intentionally" is being used in its ordinary sense, and the court is not required to define it. See, e.g., State v. Villafuerte, 141 Ariz. ---, 690 P.2d 42 (1984) (failure to define "intent" as used in kidnapping statute, A.R.S. § 13-1304 not fundamental error); State v. Schoenberger, 216 Kan. 464, 532 P.2d 1085 (1975) (failure to define "intentionally" to establish aggravated assault not error where word so widespread in its usage that its meaning was readily comprehensible to the average person without further definition or refinement); State v. Northcutt, 598 S.W.2d 130 (Mo.1980) ("intentionally"); State v. Jones, 300 N.C. 363, 266 S.E.2d 586 (1980) ("intent"); People v. Ortega, 181 Colo. 223, 508 P.2d 784 (1973) ("specific intent"); State v. Henry, 87 S.D. 454, 210 N.W.2d 169 (1973) ("intent"); Hogan v. State, 496 S.W.2d 594 (Tex.Crim.App.1973) ("intentional"); State v. Audette, 128 Vt. 374, 264 A.2d 786 (1970) ("intent"); People v. Wick, 125 Ill.App.2d 297, 260 N.E.2d 487 (1970) ("intent" or "knowingly").

Defendant suggests that the trial court should have instructed the jury as to the meaning of intentionally pursuant to A.R.S. § 13-105 which reads in pertinent part:

"5. 'Culpable mental state' means intentionally, knowingly, recklessly or with criminal negligence as those terms are thusly defined:

"(a) 'intentionally' or 'with the intent to' means, with respect to a result or to conduct described by a statute defining an offense, that a person's objective is to cause that result or to engage in that conduct."

This is the general statutory definition of intent. However, the ordinary definition of "intentionally" is essentially the same. A common definition of "intention" is "a determination to act in a certain way" or "what one intends to do or bring about." Webster's New Collegiate Dictionary 601 (1973). Both the statutory definition and the common definition of "intentionally" cover the same state of mind such that it would be difficult to find intent under one and not the other. In such a case, the term need not be defined. See State v. Zaragoza, 135 Ariz. 63, 659 P.2d 22 (1983) (words with common meaning need not be defined where the ordinary definition of the word and the statutory definition of the word are essentially the same); Rizzuto v. State, 407 A.2d 225 (Del.1979) (failure to define "sexual contact," which is specifically defined by statute, is not error because it has a common meaning that is tracked in the statute.)

We hold that the trial court did not commit fundamental error in failing sua sponte to define "intentionally" as used in the jury instructions.

II

Defendant contends that the trial court erred in sentencing him to a life sentence pursuant to the mandatory provisions of A.R.S. § 13-604.01(A). Defendant argues that A.R.S. § 13-604.01 was not intended to apply to persons released on their own recognizance from another felony charge but to persons released who have been convicted of a felony. Defendant's argument is well taken.

The version of A.R.S. § 13-604.01(A) in effect at the time of the commission of the offense reads:

"13-604.01. Offenses committed while released from confinement.

"A. Notwithstanding any provision of law to the contrary, a person convicted of any felony offense involving the use or exhibition of a deadly weapon or dangerous instrument or involving the intentional or knowing infliction of serious physical injury upon another if committed while the person is on probation, parole, work furlough or any other release shall be sentenced to life imprisonment and is not eligible for suspension or commutation of sentence, probation, pardon, parole, work furlough or release from confinement on any other basis except as specifically authorized by section 31-233, subsection A or B until the person has served not less than twenty-five years. A sentence imposed pursuant to this subsection shall be consecutive to any other sentence from which the convicted person had been temporarily released." (Emphasis added.)

Session Laws 1982, ch. 322, § 2. This section was the original enactment of A.R.S. § 13-604.01 added to the Criminal Code by the Legislature in 1982 and became effective on April 27, 1982. We must determine whether the phrase "or any other release" was intended by the Legislature to include persons who were released on their own recognizance pending trial on a criminal charge.

In resolving this case, we can turn to several statutory construction rules. First, we believe that the...