State v. Bustamonte
| Decision Date | 08 June 1978 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 122 Ariz. 162,593 P.2d 912 |
| Parties | STATE of Arizona, Appellee, v. Antonio BUSTAMONTE, Appellant. 2885. |
| Court | Arizona Court of Appeals |
Following a jury trial, appellant, Antonio Bustamonte, was convicted of assault with a deadly weapon and was sentenced to serve a prison term of not less than five nor more than nine years in the Arizona State Prison. He has appealed, asserting that (1) the State improperly introduced evidence of an unrelated crime; (2) he was improperly sentenced under the enhanced punishment provisions of A.R.S. § 13-249(B); and (3) the court improperly instructed the jury on the law of assault with a deadly weapon.
To respond to these issues we set forth the following facts: Officer Charles Ruiz was making narcotics purchases in an undercover capacity, and to that end he, the appellant, and a third party, Armando Vega, drove to Yuma to negotiate a purchase of heroin. The narcotics transaction failed to materialize and all three returned to Phoenix the same day, arriving at the Clover Motel around 9:15 p. m. Appellant, who was sitting behind Officer Ruiz in their parked vehicle suddenly placed his left arm around the officer's chest to hold him down, and then held a pair of scissors to the right side of the officer's neck. At the same time a third person, Hun Harris, who had come from the motel, leaned into the car and reached for Ruiz. The officer then grabbed the scissors with his left hand; withdraw his service revolver with his other hand and pointed the gun over his shoulder at appellant. He told him that if he did not release him he was going to shoot. Appellant released the officer and withdrew the scissors. Both Harris and appellant were then arrested by the officer.
Appellant's first argument on appeal is that the State improperly introduced evidence of an unrelated crime, that is, the attempted purchase of heroin in Yuma. See State v. Tostado, 111 Ariz. 98, 523 P.2d 795 (1974). The record reflects, however, that appellant did not object to the introduction of this evidence, nor did he ask for a mistrial or even request that the evidence be stricken. Further, on cross-examination, appellant questioned Officer Ruiz regarding the Yuma heroin transaction and appellant's specific role in it. Under these circumstances, appellant waived the right to raise this issue on appeal. State v. Sowards, 99 Ariz. 22, 406 P.2d 202 (1965); Allen v. State, 26 Ariz. 317, 225 P.2d 332 (1924).
Appellant next claims (1) the information was insufficient to put him on notice that he would be required to defend a charge under the enhancement provisions of A.R.S. § 13-249(B), and (2) that he was improperly sentenced under A.R.S. § 13-249(B). 1 As to the first contention, the information charged:
Appellant argues, citing State v. Garcia, 114 Ariz. 317, 560 P.2d 1224 (1977) and State v. Castaneda, 111 Ariz. 264, 528 P.2d 608 (1974), that the conjunctive allegation of Assault with a Deadly Weapon under both A.R.S. §§ 13-249(A) and 13-249(B) failed to put him on proper notice he should be prepared to defend under subsection (B). His reliance on the Garcia and Castaneda cases is unwarranted since the informations in those cases referred to "A.R.S. § 13-249" while the information here expressly referred to A.R.S. § 13-249(B). With respect to the information quoted above, we note that at no time did appellant file a motion under either Rule 13.5 or Rule 16.1, 17 A.R.S., Rules of Criminal Procedure, contending that the information was defective. He has, therefore, waived any possible error with regard to lack of notice. State v. Sustaita, 119 Ariz. 600, 583 P.2d 256 (1977).
Appellant's second attack on sentencing under subsection (B), however, is meritorious. A discussion of the argument here requires setting forth the provisions of the statute.
"Section 13-249. Assault with deadly weapon or force; punishment.
A. A person who commits an assault upon the person of another With a deadly weapon or instrument, or by any means or force likely to produce great bodily injury, shall be punished by imprisonment in the state prison for not less than one nor more than ten years, by a fine not exceeding five thousand dollars, or both.
B. A crime as prescribed by the terms of subsection A, committed by a person armed With a gun or other deadly weapon, is punishable by imprisonment in the state prison, for the first offense, for not less than five years, for a second offense, not less than ten years, for a third or subsequent offense, not less than twenty years nor more than life imprisonment, and in no case, except for first offense committed by a person armed with a deadly weapon other than a gun, shall the person convicted be eligible for suspension or commutation of sentence, probation, pardon or parole until such person has served the minimum sentence imposed. " (Emphasis added.)
Appellant's position is that the scissors he used in his assault of Officer Ruiz did not constitute an "other deadly weapon" within the meaning of A.R.S. § 13-249(B) but rather was a "deadly weapon or instrument" within the meaning of A.R.S. § 13-249(A).
The fact that an assault with a Deadly weapon is proscribed by both subsections of § 13-249 created an ambiguity that was resolved by the Supreme Court in State v. Church, 109 Ariz. 39, 504 P.2d 940 (1973).
109 Ariz. at 42-43, 504 P.2d at 943-944. (Emphasis added.)
"Inherently dangerous means that danger inheres in the instrumentality or condition itself, at all times, so as to require special precautions to be taken with regard to it to prevent injury . . .." Thompson v. Paseo Manor South, Inc., 331 S.W.2d 1, 6 (Mo.App.1959). When used with reference to a deadly weapon, the term means that the nature of the weapon itself, if unskillfully or carelessly used, involves a grave risk of serious bodily harm or death. In the present case the scissors used in the attack on Officer Ruiz were an ordinary, lightweight, stainless steel household scissors; clearly not an "inherently dangerous" and deadly weapon in the same class and sense as a gun, for which the legislature intended to provide the increased punishment required by subsection (B). In this regard the trial court erred in imposing sentence under this subsection.
Appellant's final contention is that the court incorrectly instructed the jury on the law of assault with a deadly weapon. The court instructed:
"Assault with a Deadly Weapon has two elements:
(1) There must be an attempt to injure another person physically by the use of a deadly weapon; and
(2) The defendant must be able to cause physical injury.
A deadly weapon is any instrument used in a way likely to cause death or serious physical injury. The defendant does not have to touch the victim in order to commit an assault.
Attempt to injure another person physically does not mean that the defendant has to intend that some bodily harm result. Defendant need only intend the acts which he performs. Thus, the pointing of a deadly weapon in a threatening manner within striking distance and with the ability to injure constitutes Assault with a Deadly Weapon. " 2
Appellant objected to the court's instruction on the ground that it misstated the law, in that it inferred that an intent to do harm was not an element of assault with a deadly weapon. The same argument is repeated here on appeal. The State, on the other hand, cites to the following cases as authority for the instruction: State v. Gary, 112 Ariz. 470, 543 P.2d 782 (1975), cert. den., 425 U.S. 916, 96 S.Ct. 1517, 47 L.Ed.2d 767; and State v. Seebold, 111 Ariz. 423, 531 P.2d 1130 (1975); State v. Dillon, 26 Ariz.App. 220, 547 P.2d 491 (1976).
In State v. Seebold the defendant requested that the court instruct the jury as follows:
"Thus, in the crime of ASSAULT WITH A DEADLY WEAPON, a necessary fact to be proved is the existence in the mind of the Defendant of the Specific intent to do harm, . . . " (Emphasis added.) 111 Ariz. at 426, 531 P.2d at 1133.
In rejecting the instruction our Supreme Court, quoting from United States v. Harvey, 428 F.2d 782, 783-784 (9th Cir. 1970), held that the "purposive intent requirement" does not apply when "traditional and obvious deadly weapons" are involved and that there is therefore "no duty on the part of the trial judge to give an 'actual intent to harm' instruction." State v. Seebold, 111 Ariz. at 426, 531 P.2d at 1133. The court went on to say: "Once it is shown that the person assaulted the victim with a gun there is no...
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Clem v. State
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State v. Bustamonte
...hereinafter referred to as the defendant, petitions this Court to review the Court of Appeals decision in State v. Bustamonte, 122 Ariz. 162, 593 P.2d 912 (1978). Taking jurisdiction pursuant to 17A A.R.S., Rules of the Supreme Court, rule 47(b), the opinion of the Court of Appeals is vacat......