State v. Belyeu
| Decision Date | 21 June 1990 |
| Docket Number | CA-CR,No. 2,2 |
| Citation | 164 Ariz. 586,795 P.2d 229 |
| Parties | The STATE of Arizona, Appellee, v. Gregg Harold BELYEU, Appellant. 89-0338. |
| Court | Arizona Court of Appeals |
Defendant Gregg Harold Belyeu appeals from convictions for second-degree burglary and criminal damage. For the reasons set forth below, we affirm.
At approximately 7:00 a.m. on January 21, 1989, 76-year-old T. was awakened by the sound of something falling off the back porch of her mobile home in Marana, Arizona. She could neither see nor hear anyone when she looked outside. Minutes later, she heard a crash and telephoned 911. She heard a second crash and discovered that her living room window was broken. When T. went to investigate, she observed Belyeu picking glass from the window frame. Frightened, she retreated to her bedroom. Belyeu entered through the window and went to the bedroom. There, he pushed on the door and said, "Lady, don't hold me out." At that time, T.'s 60-year-old husband J. approached Belyeu from behind with a handgun and ordered Belyeu to lie down on the floor. When T. again tried to phone 911, she discovered the phone by the window was off the hook.
A key to a utility room at the residence was found in Belyeu's pocket. The key had been next to the phone near the window through which Belyeu had entered. Deputies also found a 12-inch metal bar in Belyeu's pocket. This bar was from a scrap pile in the couple's back yard. When Belyeu was placed into the patrol car, he loudly stated, within hearing of T.: "Die, rag, die." The couple discovered damage to aluminum siding of their mobile home as well as to the window frame and found pry marks on a rear window of the mobile home.
Belyeu testified at trial. He stated that he had been walking in the area of the couple's home when a car passed by. He heard two pops, which he believed to be sounds caused by a .22-caliber firearm. He said that he saw an Hispanic male hanging out of a car window, pointing a gun at him. He knew of no reason for anyone to be shooting at him. Belyeu ran to an alley behind the couple's residence. He then saw a man approximately 75 yards away in the alley. He attempted to retreat to the street, but saw the car again. Belyeu then climbed the six-foot-high fence surrounding the couple's back yard and hid behind a wood pile. He picked up the steel bar for protection. Belyeu testified that he was safe while he was behind the wood pile. However, when Belyeu left the wood pile, he heard the sound of car tires on gravel. He then ran to the back of the porch and knocked on the door, without response. He next attempted to gain entry into the house by breaking the window, at which time he spotted a key on a desk immediately inside the mobile home. Belyeu reached through the window, picked up the key, and attempted to open the door to the mobile home with it. When this failed, he placed the key in his pocket. He admitted that after he climbed through the window, he went to the bedroom door and told T. not to shut him out, but stated that he did so because he wanted to explain about the shooting. He also admitted stating, "[d]ie, rag, die," but said that he directed this statement toward Deputy Stephanie Harding and not T. He said he made this statement because he was "extremely scared and extremely confused." The couple testified that they never heard anyone knocking on the door of the mobile home and heard no gunshots prior to the breaking of the kitchen window.
Belyeu was indicted for second-degree burglary, attempted robbery, theft by control, criminal damage, and two counts of influencing a witness. The state alleged a 1986 prior felony conviction for burglary. The state also alleged that Belyeu was on probation at the time the instant offenses allegedly occurred. The attempted robbery, attempted theft, and influencing witness counts were dismissed with prejudice. The jury found Belyeu guilty of second-degree burglary and criminal damage. Belyeu admitted his prior conviction during his testimony, and the state later proved that he was on probation when the offense occurred.
On appeal, Belyeu argues: (1) the trial court inadequately instructed the jury regarding predicate crimes for burglary; (2) the trial court failed to instruct the jury on duress, which was Belyeu's theory of defense; (3) insufficient evidence exists to support his burglary conviction; and (4) consecutive sentences were illegal.
Belyeu argues that the trial court erred when it failed to instruct the jury on the elements of theft, assault, and robbery. These offenses were the three predicate crimes upon which a burglary conviction could be based in the instant case.
Absent fundamental error, a party who does not object to the giving or the failure to give a particular jury instruction waives any error arising therefrom. Rule 21.3(c), Ariz.R.Crim.P., 17 A.R.S.; 1 State v Dippre, 121 Ariz. 596, 598, 592 P.2d 1252, 1254 (1979). Where the instructions given were those requested by the defendant, the defendant cannot claim error on appeal based upon the giving of the instructions. State v. Taylor, 109 Ariz. 481, 483, 512 P.2d 590, 592 (1973); State v. Thornbrugh, 24 Ariz.App. 573, 574, 540 P.2d 192, 193 (1975). In the matter before us, defense counsel expressly requested that the jury not be instructed on the definitions of theft, assault, and robbery:
A defendant may not deliberately cause the trial court to refrain from giving a particular jury instruction, then claim on appeal that such action constituted reversible error. In State v. Tassler, 159 Ariz. 183, 185, 765 P.2d 1007, 1009 (App.1988), this court stated:
Because the instruction given was the one expressly requested by defense counsel, that issue is waived. One may not deliberately inject error in the record and then profit from it on appeal [citation omitted].
In State v. Bieterman, 61 Ariz.Adv.Rep. 27, 30, (Ct.App. Apr. 24, 1990), Division One of this court held that fundamental error can be waived when it is shown that defense counsel engaged in a tactical maneuver to engage the trial court in fundamental error. In the matter before us, there is no evidence that defense counsel was involved in such maneuvers. We therefore address whether the trial court's failure to instruct the jury on the definition of the predicate crimes of theft, assault, and robbery constitutes fundamental error. See State v. Smith, 138 Ariz. 79, 83, 673 P.2d 17, 21 (1983).
In the matter before us, the trial court gave the following jury instruction regarding burglary:
A person commits burglary in the second degree by entering or remaining unlawfully while in a residential structure with the intent to commit any theft or any felony therein.
Based upon the request of defense counsel, no definitions for possible predicate offenses were given.
Whether the trial court is required to instruct the jury on the definitions of predicate offenses in a burglary prosecution is a question of first impression in Arizona. For the most part, other courts confronted with this issue have concluded that failure to instruct the jury on such definitions is not fundamental error. Inman v. State, 191 Ga.App. 497, 382 S.E.2d 122 (1989); People v. Browry, 8 Ill.App.3d 599, 603, 290 N.E.2d 650, 654 (1972); Blackmon v. State, 455 N.E.2d 586, 589-90 (Ind.1983). But see People v. Failla, 64 Cal.2d 560, 414 P.2d 39, 51 Cal.Rptr. 103 (1966).
In Blackmon, the Supreme Court of Indiana held that the jury was adequately instructed on the crime of burglary when it was told that a person committed burglary by breaking and entering into a building or structure with the intent of committing a felony inside. The court rejected the defendant's argument that the court was required to define the term "felony." In Inman, the Georgia Court of Appeals stated that the trial court was not required to define the terms felony and theft in jury instructions regarding the crime of burglary. In so ruling, the court stated that theft had a common, non-technical meaning and that felony need not be defined absent a request by defense counsel. In Browry, the Appellate Court of Illinois ruled that in a prosecution for burglary, the trial court need not instruct the jury on the elements of theft.
In the matter before us, during Belyeu's testimony, he asserted that he did not realize that anyone was in the mobile home when he entered. The residents of the mobile home described hearing sounds outside the trailer before Belyeu made his forced entry through the window. From Belyeu's surreptitious entry, the jury had ample evidence of his entry with the intent to commit a theft. See State v. Tubbs, 155 Ariz. 533, 536, 747 P.2d 1232, 1235 (App.1987), and cases cited therein. If the jury believed Belyeu's testimony that he did not realize that the mobile home was occupied, theft would have been the only one of the three predicate offenses possible, since without a victim, neither assault nor robbery could have been committed. As articulated in Inman and Browry, theft is a common term which, when invoked as the basis for a burglary conviction, need not be defined. In view of the ample evidence that Belyeu entered with the intent to commit a theft and the trial court's instruction that Belyeu was guilty of burglary if he entered with the intent of committing a theft, the trial court's failure to define the...
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...the evidence and determine witness credibility accordingly. See State v. Money, 110 Ariz. 18, 514 P.2d 1014 (1973); State v. Belyeu, 164 Ariz. 586, 795 P.2d 229 (App.1990). Because F. was the victim, the jury would likely have been influenced by his testimony. Because we cannot say beyond a......
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