State v. Bearup

Citation211 P.3d 684,221 Ariz. 163
Decision Date17 July 2009
Docket NumberNo. CR-07-0048-AP.,CR-07-0048-AP.
PartiesSTATE of Arizona, Appellee, v. Patrick Wade BEARUP, Appellant.
CourtSupreme Court of Arizona

Terry Goddard, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals, Capital Litigation Section, Deborah A. Bigbee, Assistant Attorney General, Phoenix, Attorneys for State of Arizona.

Michael J. Dew Attorney at Law, by Michael J. Dew, Phoenix, Attorneys for Patrick Wade Bearup.


BERCH, Chief Justice.

¶ 1 Patrick Wade Bearup was convicted of one count of kidnapping and one count of first degree murder, for which he was sentenced to death. In this automatic appeal, Bearup raises four claims of error and lists thirteen additional issues to avoid preclusion.1


¶ 2 In February 2002, Jessica Nelson discovered money missing from her room. She suspected that Mark Mathes, another resident of the home, had taken it. She called Sean Gaines and told him of her suspicion; Gaines instructed her to call back when Mark returned home.

¶ 3 Following the conversation, Nelson told Bruce and Marie Mathes, the owners of the home, that Gaines and "the boys"Jeremy Johnson and Patrick Bearup—were going to confront Mark about the missing money. Bruce and Marie expected Mark to receive a "butt whooping" when Gaines, Johnson, and Bearup arrived. Bruce asked Nelson to retrieve a ring he had previously given Mark as a present. When Mark returned home that evening, Nelson called Gaines and told him that Mark was back. She then alerted Bruce and Marie that "the boys" were coming, so Bruce left the residence with his daughters.

¶ 4 After receiving Nelson's call, Gaines and Johnson armed themselves and left for Nelson's house. According to Johnson, they brought weapons because they "knew there was going to be a confrontation" and they were going "[t]o take care of business."

¶ 5 On the way, Gaines and Johnson stopped at a convenience store to meet Bearup. As the men got back in their cars, Bearup proclaimed, "Let's go play, boys." Johnson understood this statement to mean they were going to "[c]ause trouble."

¶ 6 The three men got out of their vehicles and approached the Mathes home. Gaines carried a loaded shotgun, Johnson had an aluminum baseball bat, and Bearup had a folding knife with a nine-or ten-inch blade. They advanced across the backyard toward Mark, who was sitting on the rear patio with Nelson.

¶ 7 Bearup, Johnson, and Gaines surrounded Mark. Johnson attacked Mark with the baseball bat, striking him in the head and upper torso as many as twenty-five times. Bearup maintained his location throughout the assault, preventing Mark from leaving.

¶ 8 The witnesses disagreed about whether Mark was alive following the beating. Nelson was certain that Mark was killed on the patio, while Johnson claimed that Mark was still conscious and groaning. After the attack, Johnson and Bearup dragged Mark to one of the cars and stuffed him in the trunk. Bearup kicked Mark's head to make him fit into the trunk.

¶ 9 The four perpetrators got into two vehicles—Bearup and Nelson in Bearup's car and Johnson and Gaines in the vehicle containing Mark's body—and drove to an isolated area near Crown King. Johnson testified that he heard Mark mumbling and moaning in the trunk during the drive.

¶ 10 When the cars stopped on Crown King Road, Bearup pulled Mark from the trunk. Gaines and Nelson stripped him to make the body more difficult to identify. Nelson was unsuccessfully attempting to remove Mark's ring when Bearup approached and cut off the finger with a pair of wire clippers. Mark was then thrown over the guardrail and, as he lay in the ravine below, Gaines shot him twice.

¶ 11 The assailants then returned to their vehicles and departed for Phoenix. Bearup stopped at a gas station and then drove Nelson home. Once there, Nelson returned the ring to Marie, and Bearup told Marie that she did not have to file a missing person's report because Mark would never be found.

¶ 12 In February 2002, Bearup told his ex-wife, Sheena Ramsey, that he had gone with friends to beat up a man who had stolen a ring, but the person was killed and he helped dispose of the body. Bearup also told an ex-girlfriend about the killing. She overheard Bearup laughing as he talked about cutting off the victim's finger, and he seemed amused when he told her about the act.

¶ 13 Bearup was indicted on one count of first degree murder and one count of kidnapping. The State alleged two aggravating factors: a previous conviction for a serious offense, Ariz.Rev.Stat. ("A.R.S.") § 13-703(F)(2) (2001), and the commission of the offense in an especially heinous, cruel, or depraved manner, id. § 13-703(F)(6).

¶ 14 At trial, Bearup presented alibi and mistaken identity defenses. The jury convicted him of first degree murder and kidnapping and found both the (F)(2) and (F)(6) aggravating factors. The jury determined that the mitigation was not sufficiently substantial to call for leniency and returned a verdict of death for the murder. This automatic appeal followed. See Ariz. R.Crim. P. 31.2(b). We have jurisdiction pursuant to Article 6, Section 5(3) of the Arizona Constitution and A.R.S. § 13-4031 (2001).

A. Trial Issues
1. Sufficiency of the evidence to support kidnapping

¶ 15 Bearup contends that the State presented insufficient evidence of kidnapping, which served as the predicate felony for the felony murder conviction. He argues that the State did not show that he intended to inflict death or physical injury as required under A.R.S. § 13-1304(A)(3) (2001), which defines kidnapping as "knowingly restraining another person with the intent to ... [i]nflict death [or] physical injury ... or to otherwise aid in the commission of a felony." Bearup concedes that the evidence showed restraint, but argues that it did not establish that he intended to murder or physically injure Mark or "to otherwise aid in the commission of a felony" such as aggravated assault.

¶ 16 We review a sufficiency of the evidence claim by determining "whether substantial evidence supports the jury's finding, viewing the facts in the light most favorable to sustaining the jury verdict." State v. Roque, 213 Ariz. 193, 218, ¶ 93, 141 P.3d 368, 393 (2006) (citing State v. Roseberry, 210 Ariz. 360, 368-69, ¶ 45, 111 P.3d 402, 410-11 (2005)). Substantial evidence is proof that "reasonable persons could accept as adequate ... to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980). We resolve any conflicting evidence "in favor of sustaining the verdict." State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). "Criminal intent, being a state of mind, is shown by circumstantial evidence. Defendant's conduct and comments are evidence of his state of mind." State v. Routhier, 137 Ariz. 90, 99, 669 P.2d 68, 77 (1983).

¶ 17 Substantial evidence supports the jury finding that Bearup intended to participate in inflicting injury on Mark. When leaving the convenience store before the attack, Bearup said, "Let's go play, boys." Bearup, Gaines, and Johnson went to the home armed with weapons. Bearup displayed a long-bladed knife as the assailants approached and surrounded Mark in a forceful and intimidating fashion, and he stood only a few feet away as Mark was severely beaten, never intervening or protesting the length or severity of the beating.

¶ 18 Other evidence also suggested the understanding by all participants that Nelson's call to "the boys" would result in an assault on and injury to Mark. Bruce and Marie testified that after Nelson told them that she called "the boys," they expected that Mark would receive a "butt whooping." Indeed, Bruce left the house with his daughters when the beating was expected to occur so they would not be exposed to it. Joe Mathes, another resident of the house, also stated that he knew that Mark was going to be beaten based on what Nelson told him. Finally, Bearup confessed to his ex-wife, Sheena Ramsey, that he went "with some friends to beat up somebody."

¶ 19 This testimony provides substantial support for the jury's determination that Bearup intended to injure or assist the group in injuring Mark while confining him to the patio.

2. Lesser-included offense instruction

¶ 20 Bearup argues that the trial judge committed fundamental error by failing to give an unlawful imprisonment instruction. Although the judge instructed the jury on felony murder, kidnapping, and attempted kidnapping, he did not give, and Bearup did not request, an instruction on the lesser-included offense of unlawful imprisonment. See A.R.S. § 13-1303(A) (2001). Had Bearup been convicted of unlawful imprisonment rather than kidnapping, he could not have been convicted of felony murder because unlawful imprisonment is not a predicate crime for felony murder. See A.R.S. § 13-1105(A)(2) (2001) (listing felony murder predicate crimes).

a. Standard of review

¶ 21 We review assignments of trial error for fundamental error if the defendant fails to object. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). To be fundamental, an error must "go[] to the foundation of the case, ... take[] from the defendant a right essential to his defense," or be so significant "that the defendant could not possibly have received a fair trial." Id. (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). The defendant bears the burden to establish that "(1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice." State v. Smith, 219 Ariz. 132, 136, ¶ 21, 194 P.3d 399, 403 (2008) (citing Henderson, 210 Ariz. at 567, ¶ 20, 115 P.3d at 607).

¶ 22 Because Bearup did not request an unlawful imprisonment instruction at trial or object to the absence of one, we review only for fundamental error. See State v. Dickens, 187 Ariz. 1, 22-23, 926 P.2d...

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