State v. Brown

• Decision Date: 24 May 2013
• Docket Number: 2 CA-CR 2012-0049
• Parties: THE STATE OF ARIZONA, Appellee, v. KENNETH EDWARD BROWN, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee,

v.KENNETH EDWARD BROWN, Appellant.

2 CA-CR 2012-0049

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT B

May: 24, 2013

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

Not for Publication

Rule 111, Rules of

the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20111788001

Honorable Teresa Godoy, Judge Pro Tempore

AFFIRMED IN PART; VACATED IN PART

Thomas C. Horne, Arizona Attorney General

By Joseph T. Maziarz and Diane Leigh Hunt

Tucson

Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender

By Scott A. Martin

Tucson

Attorneys for Appellant

ESPINOSA, Judge.

¶1 After a jury trial, Kenneth Brown was convicted of second-degree burglary and theft by control of property with a value less than $1,000. Based on two prior felonyconvictions, he was sentenced to a presumptive term of 11.25 years' imprisonment for the burglary and time served for the theft and ordered to pay restitution of $1,000. See A.R.S. § 13-703(J). On appeal, he contends one jury instruction erroneously commented on the evidence and there was insufficient evidence to support the amount of restitution. For the following reasons, we affirm in part and vacate in part.

Factual Background and Procedural History

¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the jury's verdicts, State v. Tucker, 231 Ariz. 125, ¶ 2, 290 P.3d 1248, 1253 (App. 2012), and the trial court's restitution order, State v. Lewis, 222 Ariz. 321, ¶ 2, 214 P.3d 409, 411 (App. 2009). In May 2011, Brown, his codefendant Jeremy Adams, and a third man used tin shears to cut the side of A.H.'s mobile home, kicked through the sheetrock and wood framing, entered the structure through the large hole, and removed a small safe containing stamps, keys, paperwork, and around $620 in cash. Brown and Adams left the home on bicycles, "snaking through the neighborhood" with the safe balanced on the handlebars of Brown's bicycle. The third man fled on foot. Brown and Adams rode to another mobile home park and went inside a residence. A neighbor called 9-1-1, and a sheriff's deputy responded, found the safe and a bicycle in the yard, and arrested both men. Adams pled guilty to second-degree burglary and was sentenced to 6.5 years' imprisonment. Brown was tried, convicted, and sentenced as described above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Discussion

Jury Instruction

¶3 Brown argues the trial court abused its discretion by instructing the jury:

It is no defense to the crime charged against the defendant that another person not now on trial might have participated or cooperated in the crime. You should not guess the reason for the absence from the courtroom of such other person. The only matter before you for your decision is whether the state has proved the defendant's guilt beyond a reasonable doubt.

Brown maintains, as he did below, that the first sentence of the instruction was a prohibited comment on the evidence, given his theory that Adams had been solely responsible for the burglary and robbery. See Ariz. Const. art. VI, § 27. We review a trial court's decision to give a jury instruction for an abuse of discretion, State v. Dann, 220 Ariz. 351, ¶ 51, 207 P.3d 604, 616-17 (2009), and review the legal adequacy of an instruction de novo, State v. Martinez, 218 Ariz. 421, ¶ 49, 189 P.3d 348, 359 (2008).

¶4 Brown first claims the trial court erred because it mistakenly believed it was instructing the jury in accordance with the applicable Revised Arizona Jury Instruction (RAJI), "Absence of Other Participant," which reads:

The only matter for you to determine is whether the State has proved the defendant guilty beyond a reasonable doubt. The defendant's guilt or innocence is not affected by the fact that another person or persons might have participated or cooperated in the crime and is not on trial now. You should not guess about the reason any other person is absent from the courtroom.

State Bar of Arizona, Revised Arizona Jury Instructions (Criminal) Std. 12, at 22 (2012) (expressly based upon the holding of State v. Cannon, 148 Ariz. 72, 79-80, 713 P.2d 273,280-81 (1985)). Brown argues the trial court erred by including the first sentence of the instruction it gave¹ because that sentence does not appear in the standard RAJI instruction. But the RAJI instructions are not mandatory, see State v. Logan, 200 Ariz. 564, ¶ 12, 30 P.3d 631, 633 (2001), and Brown cites no authority for his assertion that a court abuses its discretion by deviating from a RAJI instruction, absent an error of law. Furthermore, as Brown acknowledges, our supreme court has approved phrases similar to the one Brown challenges, in the identical context of a defendant asserting a defense of third-party culpability. See State v. Walton, 159 Ariz. 571, 583, 769 P.2d 1017, 1029 (1989) (approving "[i]t is no defense" language where defense argued someone else had committed crime), aff'd, 497 U.S. 639 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002); Cannon, 148 Ariz. at 79-80, 713 P.2d at 280-81 (same).

¶5 Brown further contends the first sentence of the instruction erroneously omitted the word "also," which appeared in the instruction approved by the supreme court in Cannon: "It is no defense to the crime charged against the defendant in this case that one or more other persons not now on trial may also have participated or cooperated in the crime thus charged." 148 Ariz. at 79, 713 P.2d at 280 (emphasis added). Brown asserts that without the word "also," the first sentence of the instruction implied that the jury could not acquit him even were it to believe Adams had been solely responsible for the crimes. See id. at 79-80, 713 P.2d at 280-81. Although Brown did not specificallyrefer to the omission of the word "also" in his argument before the trial court, he repeatedly asserted that his objection was to the first sentence of the court's instruction, which he contended constituted an improper comment on the evidence. This objection furnished the trial court a sufficient opportunity to provide a remedy. See State v. Petrak, 198 Ariz. 260, ¶ 27, 8 P.3d 1174, 1182 (App. 2000) (failure to use word "duplicity" in trial objection did not forfeit duplicitous-indictment argument on appeal). We therefore disagree with the state that Brown forfeited appellate review for all but fundamental, prejudicial error, and will consider his argument in light of his constitutional objection.² See State v. Henderson, 210 Ariz. 561, ¶¶ 18-22, 115 P.3d 601, 607-08 (2005).

¶6 "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." Ariz. Const. art. VI, § 27. A trial court violates this prohibition when it expresses an opinion about what the evidence proves or otherwise interferes with the jury's independent evaluation of the evidence. State v. Roque, 213 Ariz. 193, ¶ 66, 141 P.3d 368, 388 (2006). But here, Brown does not argue the trial court "express[ed] its opinion to the jury as to what the evidence show[ed], or . . . misinform[ed] the jury that a fact [was] proven when the fact remain[ed] a subject of dispute." State v. Wolter, 197 Ariz. 190, ¶ 14, 3 P.3d 1110, 1113 (App. 2000). Instead, he asserts the court's instruction constituted a "misstatement of law" that effectivelydirected the jury to disregard evidence that he "was never there" during the burglary and that Adams had been solely responsible for the crimes.

¶7 "Challenges to jury instructions are evaluated in light of all of the instructions given." Cannon, 148 Ariz. at 80, 713 P.2d at 281. The jury was charged, "The only matter before you for your decision is whether the State has proved the defendant's guilt beyond a reasonable doubt." This correct statement of law directed the jury to determine whether Brown was guilty without speculating on the culpability of another, absent person. See id. The entirety of the court's instruction, though it differed slightly from that approved in Cannon by omitting the word "also," did not "'interfere with the jury's independent evaluation of . . . evidence'" favoring Brown's innocence. Roque, 213 Ariz. 193, ¶ 66, 141 P.3d at 388, quoting State v. Rodriguez, 192 Ariz. 58, ¶ 29, 961 P.2d 1006, 1011 (1998). We therefore find no error.

Restitution

¶8 Brown contends there was insufficient evidence to support the $1,000 restitution award to A.H. to compensate him for damage to his mobile home and his safe. He does not dispute that A.H. was entitled to restitution, or that the damage qualified as recoverable economic loss, but asserts the state failed to establish the amount of restitution by a preponderance of the evidence.

¶9 Before sentencing, Brown's attorney responded to the state's request for $1,000 in restitution, arguing,

With respect to the restitution, Mr. Brown is aware that he has put himself in a very difficult situation by beinginvolved, as he was with Mr. Adams on that day. He is remorseful for the fact that he has brought everybody to this circumstance. He understands that as a result of the jury's verdict, he is going to have to pay restitution.

I would submit to the Court that as indicated in the testimony before the Court, there was no property lost from the defendant, [sic] since the safe, which was where the property was, was never opened by anybody and . . . nothing could be obtained from it.

. . . [A]lso, there was testimony concerning the value of the safe presented to the Court, which, by my recollection, was in the neighborhood of $325. We understand that he would be jointly and severally liable for, as a result of the conviction for the damage done to the trailer with Mr. Adams, and we understand that.

The court subsequently ordered...