State v. Ennis

• Decision Date: 02 October 1984
• Docket Number: No. 1,CA-CR,1
• Citation: 142 Ariz. 311,689 P.2d 570
• Parties: STATE of Arizona, Appellee, v. Curtis Lee ENNIS, Appellant. 6982.
• Court: Arizona Court of Appeals

Page 570

689 P.2d 570

142 Ariz. 311

STATE of Arizona, Appellee, v. Curtis Lee ENNIS, Appellant.

No. 1 CA-CR 6982.

Court of Appeals of Arizona Division 1, Department A.

Oct. 2, 1984.

Robert K. Corbin, Atty. Gen. by William J. Schafer III, Chief Counsel, Criminal Div., Georgia B. Ellexson, Asst. Atty. Gen., Phoenix, for appellee

Claude D. Keller, Kingman, for appellant.

OPINION

BROOKS, Presiding Judge.

Two issues are raised in this appeal following appellant's conviction and sentence for first degree burglary and attempted armed robbery.

1. Whether the trial court erred in failing to instruct the jury on criminal trespass as a lesser included offense of burglary.

2. Whether the trial court erred in admitting appellant's two prior felony convictions for impeachment purposes.

FACTS

Appellant was charged on October 21, 1982, in a two count indictment with burglary in the first degree, a Class 2 dangerous felony, and attempted armed robbery, a Class 3 felony. Two prior felony convictions were thereafter alleged: (1) that on March 16, 1973, appellant was adjudged guilty of murder in the second degree; (2) that on March 19, 1969, appellant was adjudged guilty of assault with a deadly weapon.

The two victims testified that appellant and a co-defendant (Cleveland) entered the victims' motel room in Kingman, Arizona, through an unlocked sliding glass door. While Cleveland pointed a sawed off shotgun at the victims, appellant demanded the victims' money and their car. The victims stated that they had neither and suggested that appellant and Cleveland "might as well leave since they could not get anything." The two then left the motel room stating that "it had all been just a joke." The victims then contacted the police and appellant and Cleveland were arrested at a restaurant across the street from the motel. A sawed off shotgun was retrieved from the trash can in the restaurant restroom.

Appellant testified that he and Cleveland were passing through Kingman on their way to a job in New Mexico when their automobile broke down outside of the motel. While appellant sat outside of the motel drinking wine, Cleveland wandered off and appellant later found him in the motel room sitting on a bed with the victims. Appellant testified that he heard someone mention a robbery and entered the room to make certain that Cleveland was not committing a crime. He stated that he told the victims that a robbery was not taking place whereupon he and Cleveland left the room and went across the street to the restaurant where they were later taken into custody by the police. Appellant testified that he never saw a gun in Cleveland's possession.

Appellant was convicted on both counts and admitted the prior convictions. Upon a finding of aggravating circumstances and a finding that the prior convictions were dangerous offenses, the trial court sentenced appellant to an aggravated term of thirty-five years imprisonment on the burglary count and an aggravated term of twenty-five years imprisonment for attempted armed robbery. The terms were directed to run concurrently and appellant was given appropriate credit for presentence incarceration.

LESSER-INCLUDED OFFENSE

Appellant first contends that the trial court committed reversible error by refusing to instruct the jury concerning the crime of trespass which appellant argues is a lesser-included offense of burglary.

Appellant was charged with committing burglary in the first degree under A.R.S. §§ 13-1508 and 13-1507, which provide in pertinent part:

§ 13-1508. Burglary in the First Degree; Classification

A. A person commits burglary in the first degree if such person or an accomplice violates the provisions of either § 13-1506 or 13-1507 and is armed with explosives, a deadly weapon or a dangerous instrument in the course of committing any theft or any felony.

§ 13-1507. Burglary in the Second Degree; Classification

A. A person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein.

A.R.S. § 13-1504, Criminal Trespass in the First Degree, reads in pertinent part A. A person commits criminal trespass in the first degree by knowingly:

1. Entering or remaining unlawfully in or on a residential structure or in a fenced residential yard.

The instruction on criminal trespass would have been proper if criminal trespass in the first degree were considered a lesser-included offense of burglary in the first degree and if the evidence would have rationally supported a jury conclusion that the state had failed to prove an element of the greater offense. State v. Gooch, 139 Ariz. 365, 678 P.2d 946 (1984); State v. Malloy, 131 Ariz. 125, 639 P.2d 315 (1981); State v. Harris, 134 Ariz. 287, 655 P.2d 1339 (App.1982).

The court in State v. Gooch, supra, discussed the procedure to be followed in determining whether or not an instruction should be given on a lesser-included offense. The first step is to determine whether an offense is a lesser-included offense. The court may consider two bases: (1) if the included offense, by its very nature, is always a constituent part of the major offense charged; or (2) if the terms of the charging document describe the lesser offense even though the lesser offense does not always make up a constituent part of the major offense charged. In other words, a court may inquire as to whether the greater offense, as described by a statute or as charged, can be committed without necessarily committing the lesser offense. Once the determination is made that the offense is a lesser-included offense, the court must then consider whether the evidence supports the requested instruction.

Our supreme court held in State v. Malloy, 131 Ariz. 125, 639 P.2d 315 (1981), that criminal trespass is not necessarily a lesser-included offense of burglary. The question thus becomes whether the terms of the charging document in the instant case described the lesser offense of criminal trespass. Count I of the indictment charges appellant as follows:

Count I: Burglary in the First Degree, Class 2 Felony

On or about the 15th day of October, 1982, in the vicinity of Pony Soldier Motel, 2939 East Andy Devine, Kingman, Mohave County, Arizona, said defendants, HARRY LEE CLEVELAND and CURTIS LEE ENNIS, unlawfully entered a residential structure with the intent to commit theft and/or robbery therein, and each such defendant or an accomplice was armed with a deadly weapon in the course of committing the theft and/or robbery, a Class 2 dangerous felony, in violation of A.R.S. §§ 13-1508, 13-1507, 13-701, 13-801 and 13-604(G), (K).

The description of the burglary charge in the indictment does not describe the lesser offense of criminal trespass, first degree, in that it does not specifically include the element of knowingly entering or remaining unlawfully. Because neither of the bases for determining that trespass is a lesser-included offense is met in this case, it is not necessary to make the second determination, whether the evidence would have rationally supported a jury conclusion that the state had failed to prove an element of the greater offense. For this reason, the refusal of the trial court to give the instruction on criminal trespass in the first degree as a lesser-included offense of burglary in the first degree was proper.

IMPEACHMENT BY PRIOR CONVICTIONS

The second issue raised by appellant on appeal is whether or not the trial court's denial of appellant's motion in limine to preclude the admission of his prior convictions for impeachment purposes and the trial court's denial of appellant's motion for new trial based upon this ground constituted an abuse of discretion. Appellant challenges the admission of the prior convictions on several grounds:

1. Appellant was not given sufficient notice under Rule 609, Arizona Rules of Evidence, of the prosecutor's intention to use the prior felony convictions for impeachment purposes.

2. The trial court failed to conduct a hearing and failed to make the appropriate findings that the probative value of the prior convictions outweighed their prejudicial effect.

3. That the 1969 prior conviction of assault with a deadly weapon was too remote in time and should have thus been excluded.

The pertinent portions of Rule 609 provide as follows:

a. General Rule.

For the purpose of attacking the credibility of a witness, evidence that he has been convicted of a crime shall be admitted if elicited from him or established by public record, if the court determines that the probative value of admitting this evidence outweighs its prejudicial effect, and if the crime (1) was punishable by death or imprisonment in excess of one year under the law under which he was convicted or (2) involved dishonesty or false statement, regardless of the punishment.

b. Time Limit.

Evidence of a conviction under this rule is not admissible if a period of more than ten years has elapsed since the date of the conviction or of the release of the witness from the confinement imposed for that conviction, whichever is the later date, unless the court determines, in the interests of justice, that the probative value of the conviction supported by specific facts and circumstances substantially outweighs its prejudicial effect. However, evidence of a conviction more than ten years old as calculated herein, is not admissible unless the proponent gives to the adverse party sufficient advance written notice of intent to use such evidence to provide the adverse party with a fair opportunity to contest the use of such evidence.

Appellant first argues that the state's motion to add the allegation of prior convictions as an addendum to the indictment failed to provide sufficient notice since it did not specifically refer to Rule 609. Appellant acknowledged at the Rule 609 hearing, however, that he had actual notice that the allegation had been filed:

MR. KELLER: ... Sh...