State v. Coleman, 1
| Citation | 147 Ariz. 578,711 P.2d 1251 |
| Decision Date | 26 December 1985 |
| Docket Number | No. 1,CA-CR,1 |
| Parties | STATE of Arizona, Appellee, v. Calvin Kay COLEMAN, Appellant. 8820. |
| Court | Arizona Court of Appeals |
Appellant Calvin Kay Coleman (defendant) appeals from his convictions for the crimes of burglary in the second degree, a class 3 felony, in violation of A.R.S. §§ 13-1507, -1501, -701, -702, -801, and -604.01 and theft, a class 3 felony, in violation of A.R.S. §§ 13-1802, -1801, -701, -702, -801, and -604.01, and from the probation imposed as a result of these convictions. The sole issue presented by this appeal is whether the trial court erred in refusing to grant the defendant's motions for acquittal at the close of the State's case and after the jury had reached guilty verdicts on both counts submitted.
An information was filed in the Maricopa County Superior Court on October 19, 1984, charging the defendant with burglary in the second degree, a class 3 felony, and theft, a class 3 felony. The defendant entered a not guilty plea to these charges and a jury trial was scheduled. At trial, the following facts were adduced:
Sometime after 1 p.m. on September 3, 1984, and before 9 p.m. on September 5, 1984, a townhouse belonging to Kelli Riley was burglarized and approximately $8,000 worth of property was taken. When Ms. Riley returned from a business trip on the evening of September 5, she discovered that a screen was off the window adjacent to her front door and that a section of glass from that window was missing. She then opened her screen door and noticed that her hardwood front door was ajar about three inches. She testified at trial that she had locked the deadbolt to her front door as well as the lock on the knob. Upon entry, Ms. Riley noticed that items were missing and immediately notified the police. Officer Art Haduch of the Phoenix Police Department responded and tested for latent fingerprints. The missing piece of glass was not found.
The following day, Ms. Riley observed an approximately six-inch piece of glass in a potted bougainvillea plant in the patio area of her townhouse. She did not touch the glass and proceeded to notify the police. Once again, Officer Haduch responded, and at the scene he noted that the piece of broken glass had the same shape as the piece missing from the window. He then dusted the glass for latent fingerprints. Two of the fingerprint lifts were later identified as the left middle finger and the left thumb of the defendant. The thumbprint was taken from one side of the glass, the middle fingerprint from the other.
At trial, Ms. Riley's housecleaner testified that the last time she had cleaned the townhouse window was August 8, 1984. She had cleaned both the inside and the outside of the window. The defendant consistently denied ever having been at the Riley residence. The jury found the defendant guilty on the burglary and theft counts and the defendant has appealed.
The defendant argues that the trial court erred in denying his motions for judgment of acquittal. Under Rule 20, Arizona Rules of Criminal Procedure, a judgment of acquittal prior to verdict may be entered only if there is no substantial evidence to warrant a conviction. State v. Hunter, 136 Ariz. 45, 47, 664 P.2d 195, 197 (1983). Substantial evidence is evidence from which reasonable people could find the defendant guilty beyond a reasonable doubt. Id. at 48, 664 P.2d at 198. A judgment of acquittal is improper if reasonable minds can differ on the inferences to be drawn from the evidence. Id.
The crimes of burglary and theft often go hand-in-hand but are two distinct crimes, State v. Hutton, 87 Ariz. 176, 178 349 P.2d 187, 188 (1960) (). The elements constituting burglary and theft are entirely different. One may be committed without the other. State v. Arnold, 115 Ariz. 421, 422, 565 P.2d 1282, 1283 (1977) (pre-1978 Criminal Code). Other jurisdictions with statutes similar to our own concur. See People v. Tatem, 62 Cal.App.3d 655, 658, 133 Cal.Rptr. 265, 266 (1976); Alston v. State, 410 A.2d 1019, 1020-21 (Del.1980). In light of this, we examine the sufficiency of the evidence as to each crime separately.
The trial court gave the following jury instruction in regard to the burglary count:
The crime of Burglary in the Second Degree requires proof of the following two things:
1. That the defendant entered or remained in a residential structure without authority; and
2. Entered or remained in with the intent to commit a theft.
See A.R.S. § 13-1507. The statutory definition of burglary in the second degree differs from this instruction because its wording is "with the intent to commit any theft or any felony therein." A.R.S. § 13-1507(A) (emphasis added).
The defendant argues that the trial court erred in denying the motion for judgment of acquittal on burglary because the State presented insufficient evidence to prove entry. However, evidence supporting either of two conclusions is sufficient to overcome a motion for acquittal. State v. Garcia, 138 Ariz. 211, 214-15, 673 P.2d 955, 958-59 (App.1983). Such is the case here. The evidence of entry is the defendant's fingerprints found on both sides of a piece of glass of the same shape and size as the piece missing from the victim's broken window. Though the glass was found outside the victim's townhouse, some form of unauthorized entry necessarily occurred in the act of breaking and removal of the glass. This kind of breaking and entry alone justifies an inference of an intent to commit a theft of property inside. People v. Toolate, 101 Ill.2d 301, 78 Ill.Dec. 153, 461 N.E.2d 987 (1984), People v. Fico, 131 Ill.App.3d 770, 86 Ill.Dec. 871, 476 N.E.2d 47 (1985). Substantial evidence therefore exists to support the elements of (1) unauthorized entry and (2) intent to steal required for a burglary conviction. The burglary conviction and the denial of judgment of acquittal are supported by the evidence.
The trial court's jury instruction regarding theft was as follows:
The crime of theft in this case requires proof...
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