State v. Cotten

• Decision Date: 20 September 2011
• Docket Number: No. 1 CA–CR 09–0895.,1 CA–CR 09–0895.
• Citation: 617 Ariz. Adv. Rep. 4,228 Ariz. 105,263 P.3d 654
• Parties: STATE of Arizona, Appellee,v.Joseph Ken COTTEN, Appellant.
• Court: Arizona Court of Appeals

228 Ariz. 105

263 P.3d 654

617 Ariz. Adv. Rep. 4

STATE of Arizona, Appellee,

v.Joseph Ken COTTEN, Appellant.

No. 1 CA–CR 09–0895.

Court of Appeals of Arizona, Division 1, Department A.

Sept. 20, 2011.

Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section, and Liza–Jane Capatos, Assistant Attorney General, Phoenix, Attorneys for Appellee.Jill L. Evans, Mohave County Appellate Defender, Kingman, Attorney for Appellant.

OPINION

THOMPSON, Judge.

¶ 1 Joseph Ken Cotten (defendant) appeals his convictions and sentences for one count of theft and three counts of misconduct involving weapons. Regarding his theft conviction, defendant argues that he was deprived of his constitutional right to a unanimous verdict because the indictment was duplicitous. He also claims that the trial court improperly imposed consecutive sentences for the theft conviction and one of the misconduct convictions because both were based on defendant's possession of the same stolen weapon. Finally, defendant contends that the court erred in using a prior California felony conviction for sentence enhancement purposes. For the reasons that follow, we disagree with defendant's claims of error and therefore affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 The trial evidence reveals the following.¹ On June 17, 2009, Bullhead City police executed a search warrant at defendant's girlfriend's home when the two were in bed. During the search, the police discovered three guns: a Glock handgun under defendant's pillow, a rifle in a closet, and another handgun under the seat of a motorcycle parked in the garage. Defendant's girlfriend did not own the guns, and the Glock and rifle had previously been reported as stolen. Because defendant was a prohibited possessor,² the state charged him with three counts of misconduct involving weapons in violation of Arizona Revised Statutes (A.R.S.) section 13–3102(A)(4) (2009), a class four felony, in addition to two counts of theft in violation of A.R.S. § 13–1802 (2009), class six felonies. The jury found defendant not guilty of theft relating to the rifle, but otherwise found him guilty as charged. The court found that defendant had two historical felony convictions, one from Mohave County and one from California, and sentenced defendant to aggravated terms of four years of imprisonment for the theft conviction and eleven years for the misconduct convictions. The court ordered the latter sentences to be served concurrently to each other, but consecutively to the four-year sentence for theft. Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12–120.21(A)(1) (2003), 13–4031 and –4033(A)(1)(2010).

DISCUSSION

A. Duplicitous Indictment

¶ 3 After the close of evidence, defendant requested a special verdict that would require that a conviction on either of the theft charges be based on the jury unanimously determining whether defendant stole the guns or possessed them knowing that they were stolen. See A.R.S. §§ 13–1802(A)(1) (a person commits theft by knowingly controlling, without lawful authority, property of another with the intent to deprive the other person of such property) and A.R.S. § 13–1802(A)(5) (a person commits theft by knowingly controlling, without lawful authority, property of another knowing or having reason to know that the property was stolen). The court rejected the request, reasoning that defendant was “entitled to a unanimous verdict on whether the crime charged was committed but not on a specific manner in which it was committed.”

¶ 4 Defendant argues that “the court erred in submitting two different theft theories to support one theft charge in the indictment, without any special verdict form ... to cure the defect of the duplicitous indictment.” ³ We disagree.

¶ 5 Arizona courts have repeatedly held that theft as defined in A.R.S. § 13–1802 is a single unified offense. State v. Tramble, 144 Ariz. 48, 52, 695 P.2d 737, 741 (1985); State v. Paredes–Solano, 223 Ariz. 284, 289–90, ¶ 14, 222 P.3d 900, 905–906 (App.2009); In re Jeremiah T., 212 Ariz. 30, 34, ¶ 12, 126 P.3d 177, 181 (App.2006); State v. Wolter, 197 Ariz. 190, 192, ¶ 8, 3 P.3d 1110, 1112 (App.2000); State v. Coleman, 147 Ariz. 578, 580, 711 P.2d 1251, 1253 (App.1985); State v. Winter, 146 Ariz. 461, 464–65, 706 P.2d 1228, 1231–32 (App.1985), abrogated in part by State v. Kamai, 184 Ariz. 620, 623, 911 P.2d 626, 629 (App.1995); State v. Brokaw, 134 Ariz. 532, 535, 658 P.2d 185, 188 (App.1982); State v. Dixon, 127 Ariz. 554, 561, 622 P.2d 501, 508 (App.1980). As the trial court correctly noted, “although a defendant is entitled to a unanimous jury verdict on whether the criminal act charged has been committed, the defendant is not entitled to a unanimous verdict on the precise manner in which the act was committed.” State v. Herrera, 176 Ariz. 9, 16, 859 P.2d 119, 126 (1993) (quoting State v. Encinas, 132 Ariz. 493, 496–97, 647 P.2d 624, 627–28 (1982)).⁴ The trial court correctly instructed the jurors that they could return a guilty verdict if defendant violated subsection (A)(1) or subsection (A)(5) of the theft statute. These instructions were supported by the evidence. See State v. Tschilar, 200 Ariz. 427, 436, ¶ 36, 27 P.3d 331, 340 (App.2001) (“A party is entitled to a jury instruction on any theory reasonably supported by the evidence.”) (citation omitted).

¶ 6 As for the indictment's purported duplicity,

[a]n indictment is duplicitous if it charges separate crimes in the same count. Duplicitous indictments are prohibited because they fail to give adequate notice of the charge, present a hazard of a non-unanimous jury verdict, and make a precise pleading of double jeopardy impossible in the event of a later prosecution.

State v. Hamilton, 177 Ariz. 403, 410, 868 P.2d 986, 993 (App.1993) (citations omitted). The indictment in this case was not duplicitous. As noted supra, theft is a single, unified offense. The subsections contained in A.R.S. § 13–1802 do not reference separate crimes. An indictment's general citation to A.R.S. § 13–1802 is sufficient to charge a violation of the statute's subsections. No more particular pleading is required. See Winter, 146 Ariz. at 465, 706 P.2d at 1232. For these reasons, the court did not err in refusing defendant's request for a special verdict.B. Consecutive Sentences

¶ 7 Defendant contends that the trial court violated A.R.S. § 13–116 (2009) by imposing consecutive sentences for his theft conviction (count 1) and one of the misconduct convictions (count 3) because they both involved the Glock. Defendant argues that concurrent sentences are mandated by State v. Gordon, 161 Ariz. 308, 315, 778 P.2d 1204, 1211 (1989). We disagree because the convictions did not arise from a “single act.”

¶ 8 “An act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent.” A.R.S. § 13–116. We review de novo whether a superior court has complied with A.R.S. § 13–116 in imposing consecutive sentences. State v. Urquidez, 213 Ariz. 50, 52, ¶ 6, 138 P.3d 1177, 1179 (App.2006) (citation omitted).

¶ 9 As the Arizona Supreme Court explained in Gordon, in determining whether a defendant has committed a single act pursuant to A.R.S. § 13–116, the court first considers “the facts of each crime separately, subtracting from the factual transaction the evidence necessary to convict on the ultimate charge—the one that is at the essence of the factual nexus and that will often be the most serious of the charges.” 161 Ariz. at 315, 778 P.2d at 1211. “If the remaining evidence satisfies the elements of the other crime, then consecutive sentences may be permissible under A.R.S. § 13–116.” Id. The next consideration is “whether, given the entire ‘transaction,’ it was factually impossible to commit the ultimate crime without also committing the secondary crime.” Id. If so, the likelihood that the defendant committed a single act under A.R.S. § 13–116 is increased. Id. Finally, this framework requires us to consider “whether the defendant's conduct in committing the lesser crime caused the victim to suffer an additional risk of harm beyond that inherent in the ultimate crime.” Id. If the victim suffered an additional risk of harm, then it is permissible to impose consecutive sentences because the defendant committed multiple acts. Id.

¶ 10 Applying Gordon, defendant's theft and misconduct convictions regarding the Glock clearly exposed him to consecutive sentences. For purposes of the Gordon framework, the “ultimate” or “most serious” of defendant's charges was the misconduct involving weapons charge, a class 4 felony. Considering the factual transaction presented in this case, defendant could have committed misconduct involving weapons without committing the secondary crime, theft. The misconduct offense (but not the theft offense) required evidence that defendant was a prohibited possessor, while the theft offense (but not the misconduct offense) required proof that the weapon was stolen, whether defendant stole the weapon or knew it was stolen. See A.R.S. §§ 13–1802(A)(1), (5), –3102. Police found defendant with the gun under his pillow, which was sufficient evidence alone to convict him on the ultimate charge. See id. Thus, defendant could have illegally possessed the weapon without stealing it.

¶ 11 Next, having “subtracted” this evidence from the factual transaction, we consider whether the remaining evidence was sufficient to convict defendant of theft. See Gordon, 161 Ariz. at 315, 778 P.2d at 1211. At trial, the following evidence was presented. Defendant's acquaintance, Daniel, saw the Glock at the victim's house. Later, when he described the Glock to defendant at a party, defendant evinced interest in the gun. Specifically, Daniel told Officer Harrison that defendant's ...