State v. Dickinson

• Decision Date: 17 December 2013
• Docket Number: No. 1 CA–CR12–0479.,1 CA–CR12–0479.
• Citation: State v. Dickinson, 233 Ariz. 527, 314 P.3d 1282, 676 Ariz. Adv. Rep. 10 (Ariz. App. 2013)
• Parties: STATE of Arizona, Appellee, v. Zane Scott DICKINSON, Appellant.
• Court: Arizona Court of Appeals

233 Ariz. 527

314 P.3d 1282

676 Ariz. Adv. Rep. 10

STATE of Arizona, Appellee,

v.Zane Scott DICKINSON, Appellant.

No. 1 CA–CR12–0479.

Court of Appeals of Arizona, Division 1.

Dec. 17, 2013.

Arizona Attorney General's Office ByJoseph T. Maziarz, Phoenix, for Appellee.

Mohave County Appellate Defender's Office ByJill L. Evans, Kingman for Appellant.

Judge SAMUEL A. THUMMAdelivered the opinion of the Court, in which Presiding Judge RANDALL M. HOWE and Judge DIANE M. JOHNSEN joined.

OPINION

THUMMA, Judge.

¶ 1DefendantZane Dickinson appeals his conviction and sentence for attempted second degree murder.Dickinson argues fundamental, prejudicial error because a jury instruction allowed the jury to return a guilty verdict upon a showing that he“[k]new that his conduct would cause ... serious physical injury,” rather than death.Concluding Dickinson has not met his burden to show prejudice from this fundamental error, his conviction and resulting sentence are affirmed.

FACTS ¹ AND PROCEDURAL HISTORY

¶ 2 For years, Dickinson and C.H., the victim, had been friends.In June 2011, they had a falling out when Dickinson failed to perform yard work he had agreed to do and refused to return tools to the victim.The two argued and Dickinson pulled a knife, but the victim fought back and was able to get away.

¶ 3 On July 2, 2011, while riding his bicycle, the victim saw Dickinson's truck at the house of a mutual friend.The victim then approached Dickinson, again asking for the return of his tools and asking that Dickinson refund money to a customer for whom Dickinson had failed to perform work.According to the victim, as he walked by the truck, Dickinson “pulls out this ax, and he's coming at me.”After a scuffle, Dickinson told the victim “ he's going to kill me, and all this stuff, you know, and he cussed me and called me names.So I was just trying ... I got on my bike and rode away.”Dickinson then apparently told the mutual friend “I'm going to run him over” and then left.

¶ 4 A short time later, while riding his bicycle near an alley, the victim saw Dickinson approaching in “a Ford Ranger, extended cab” truck.At trial, the victim testified:

I looked up and I seen him, and the last thing in my head is, he smiled.So next thing I know, he revved up his motor and he shot towards me.And I remember what happened.He hit the back of my bike, he had spun me all the way around about ten feet in the dirt.I landed on the dirt.

Still able to ride, the victim got back on his bicycle, “trying to get away.”The victim thought he had lost Dickinson, but “all of a sudden I hear his motor revving up, and I look back and he's no more than maybe a foot from my bumper [of the bike], and he's laughing; so I realize what's going on.”The victim again tried to get away, including riding toward a field, but “at the same time [Dickinson] turns his wheel and hit[s] my bike; and that's the last thing I remember, and I wake up in the hospital.”

¶ 5 According to a witness, Dickinson “parked in this field, like he was waiting for [the victim], in his truck, with it running.”The witness testified Dickinson ran the victim “down on his bicycle.[The victim] went up underneath the truck....The bike collapsed, and [the victim] was drug underneath the truck.”After running over the victim, Dickinson sped off.The victim sustained multiple injuries, including a concussion and head injuries resulting in 13 stitches, including across his eye; a broken ankle and his “funny bone was ripped out” from his elbow.The mutual friend testified that, after the incident, Dickinson returned and parked his truck at the friend's house, tossed the keys to the friend and said “that he had did it.That he done it.”

¶ 6 The indictment charged Dickinson with attempted second degree murder, a class 2 dangerous felony, and other felony offenses.The State's theory of the case was that Dickinson tried to kill the victim.Dickinson did not testify and called no witnesses but asserted a defense of mistaken identity and claimed he had no involvement.Dickinson argued someone else ran over the victim and that he was being framed in an attempted insurance or prescription drug fraud.At no time did Dickinson assert that he hit the victim with his truck but did not intend to or try to kill the victim.

¶ 7 In its opening statement, the State repeatedly maintained that the evidence would show Dickinson “tried to kill [the victim].”In closing argument, the State repeatedly argued that Dickinson “was trying to kill [the victim].”Focusing on a comment Dickinson made in a recorded jail call that “I was defending myself really,”the State argued Dickinson's acts were “not self-defense” and asked the jury to “[r]emember [Dickinson] said he was going to ... kill him.”After referencing the attempted murder jury instruction quoted in the following paragraph, the State told the jury that the victim was lucky, the victim's injuries could have been much worse and Dickinson was “trying to kill” the victim.

¶ 8 Without objection, the court gave the following attempted second degree murder jury instruction (the italicized portion of which is at issue here):

The crime of attempted second degree murder has three elements.In order to find the defendant guilty of attempted second degree murder, you must find that, number one, the defendant intentionally did some act; and number two, the defendant believed such act was a step in the course of conduct planned to culminate in the commission of the crime of second degree murder; and number three, the defendant did so with the mental state required for the commission of the crime of second degree murder.

It is not necessary that you find that the defendant committed the crime of second degree murder; only that he attempted to commit such crime.

The crime of second degree murder has the following elements: Number one, the defendant caused the death of another person; and number two, the defendant either, A, did so intentionally or, B, knew that his conduct would cause death or serious physical injury.

After a three-day trial, the jury found Dickinson guilty as charged.Finding Dickinson had one prior historical felony conviction, the court sentenced him to an aggravated term of 12 years in prison on the attempted second degree murder conviction and to prison terms on the other counts.

¶ 9 Dickinson timely appealed his conviction for attempted second degree murder and the resulting sentence (but not the other convictions and sentences).This court has jurisdiction of Dickinson's appeal pursuant to Article 6, Section 9, of the Arizona ConstitutionandArizona Revised Statutes(A.R.S.)sections 12–120.21(A)(1),13–4031 and –4033(A)(1)(2013).²

DISCUSSION

I.Standard Of Review.

¶ 10 Dickinson challenges that portion of the attempted second degree murder jury instruction stating the jury could return a guilty verdict on an alternative showing that he“[knew] that his conduct would cause ... serious physical injury” but not death.At trial, Dickinson did not object to the instruction.Accordingly, this court's review on appeal is limited to fundamental error.Ariz. R.Crim. P. 21.3(c);State v. Henderson,210 Ariz. 561, 567, ¶¶ 19–20, 115 P.3d 601, 607(2005).“ ‘It is the rare case in which an improper instruction will justify reversal of a criminal conviction when no objection has been made in the trial court.’ ”State v. Zaragoza,135 Ariz. 63, 66, 659 P.2d 22, 25(1983)(quotingHenderson v. Kibbe,431 U.S. 145, 154, 97 S.Ct. 1730, 52 L.Ed.2d 203(1977));accordState v. Gomez,211 Ariz. 494, 499, ¶ 20, 123 P.3d 1131, 1136(2005);State v. Van Adams,194 Ariz. 408, 415, ¶ 17, 984 P.2d 16, 23(1999).“Accordingly, [Dickinson]‘bears the burden to establish that “(1) error exists, (2) the error is fundamental, and (3) the error caused him prejudice.” ’ ”State v. James,231 Ariz. 490, 493, ¶ 11, 297 P.3d 182, 185(App.2013)(citations omitted).

II.Fundamental Error.

¶ 11 Contrary to the jury instruction given in this case, attempted second degree murder can only be committed if the defendant intended to kill the victim or knew that the conduct would cause death.State v. Ontiveros,206 Ariz. 539, 542, ¶ 14, 81 P.3d 330, 333(App.2003)(“[T]here is no offense of attempted second-degree murder based on knowing merely that one's conduct will cause serious physical injury.”).³Accordingly, the court erred in instructing the jury that it could convict Dickinson of attempted second degree murder on a finding that Dickinson knew his conduct would cause serious physical injury.Id.

¶ 12 Error is fundamental if a defendant shows “that the error complained of goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial.”Henderson,210 Ariz. at 568, ¶ 24, 115 P.3d at 608.“This court has stated that instructing a jury on a non-existent theory of criminal liability is fundamental error.”James,231 Ariz. at 493, ¶ 13, 297 P.3d at 185(citingState v. Zinsmeyer,222 Ariz. 612, 623, ¶ 27, 218 P.3d 1069, 1080(App.2009), overruled on other grounds byState v. Bonfiglio,231 Ariz. 371, 295 P.3d 948(2013);Ontiveros,206 Ariz. at 542, ¶ 17, 81 P.3d at 333;State v. Rutledge,197 Ariz. 389, 392 n. 7, ¶ 12, 4 P.3d 444, 447 n. 7(App.2000)).“Given the case-specific nature of the inquiry, however, [Dickinson] must show the error was fundamental in light of the facts and circumstances of this case, recognizing that ‘the same error may be fundamental in one case but not in another.’ ”James,231 Ariz. at 493, ¶ 13, 297 P.3d at 185(quotingState v. Bible,175 Ariz. 549, 572, 858 P.2d 1152, 1175(1993)).Because the instruction potentially “improperly relieved the State of its burden of proving an element of the offense,” under the facts and circumstances of this case, the error complained of was fundamental because it goes to the foundation of the case.State...