State v. Brown, 2
| Decision Date | 27 March 1997 |
| Docket Number | No. 2,CA-CR,2 |
| Citation | 188 Ariz. 358,936 P.2d 181 |
| Parties | , 240 Ariz. Adv. Rep. 14 The STATE of Arizona, Appellee, v. Eric Jason BROWN, Appellant. 96-0252. |
| Court | Arizona Court of Appeals |
A jury found appellant guilty of theft by control and third-degree burglary. The trial court suspended the imposition of sentence and placed appellant on probation for four years. He argues that he is entitled to a new trial because the record does not establish that the court gave the jury the verdict form for the lesser-included offense of unlawful use of a means of transportation and that the trial court abused its discretion when it denied his motion for judgment of acquittal on the third-degree burglary charge.
The charges arose from an incident on September 30, 1995, when appellant drove off in a vehicle belonging to a Tucson Pizza Hut delivery man. Appellant was apprehended minutes later after a chase conducted by the vehicle's owner and the pizza parlor's manager. Appellant's defense was that he did not intend to permanently deprive the owner of the vehicle.
Appellant requested an instruction on the unlawful use of a means of transportation as a lesser-included offense of theft by control. See State v. Kamai, 184 Ariz. 620, 911 P.2d 626 (App.1995). While the record shows that the trial court gave the requested instruction and that it referred to three forms of verdict, the record only contains two forms of verdict, one for theft by control and one for third-degree burglary, both of which were returned "guilty."
As appellant concedes, claims of error regarding forms of verdict are generally waived for appeal unless an objection is lodged at trial. Ariz.R.Crim.P. 21.3(c), 17 A.R.S. However, issues regarding the forms of verdict, although not objected to at trial, can still be raised for the first time on appeal as fundamental error. See State v. Moya, 140 Ariz. 508, 683 P.2d 307 (App.1984). Appellant relies on this court's decision in State v. Flores, 140 Ariz. 469, 682 P.2d 1136 (App.1984), and Division One's decision in State v. Knorr, 186 Ariz. 300, 921 P.2d 703 (App.1996). In both cases, however, the record established that the trial court had failed to provide the requisite forms of verdict. Here, the record does not establish one way or the other whether the jury was given the form of verdict. As the state points out, a matter not contained in the record on appeal is presumed to support the trial court's decision. State v. Rivera, 168 Ariz. 102, 811 P.2d 354 (App.1990). While we indulge in the presumption for purposes of appeal, appellant is free to seek relief on this issue through proceedings pursuant to Rule 32, Ariz.R.Crim.P., where he may obtain an evidentiary hearing to determine if the lesser-included form of verdict was omitted, and if so, whether he was prejudiced by that omission. See State v. Georgeoff, 163 Ariz. 434, 788 P.2d 1185 (1990).
We find no merit to appellant's other argument--that the trial court should have granted his motion for judgment of acquittal on the third-degree burglary charge. He contends that he did not enter the vehicle with the intent to commit an act separate from stealing the car. Under A.R.S. § 13-1506(A), "[a] person commits burglary in the third degree by entering or remaining unlawfully in or on a nonresidential structure ... with the intent to commit any theft or any felony therein." The question thus presented is whether entry into, or remaining in, a vehicle with the intent to steal the vehicle itself constitutes burglary. Courts in Illinois and Florida have held in the affirmative when interpreting statutes which do not vary in material respect from A.R.S. § 13-1506(A).
In People v. Mullinex, 125 Ill.App.3d 87, 90, 80 Ill.Dec. 344, 347, 465 N.E.2d 135, 138 (1984), the court stated:
There is nothing in the statutory language itself that restricts the scope ... to situations in which the defendant steals or intends to steal something from the interior of the automobile, as opposed to attempting to steal or actually stealing the vehicle itself....
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