State v. Evans, 2315

• Decision Date: 24 July 1973
• Docket Number: No. 2315,2315
• Citation: 512 P.2d 1225,109 Ariz. 491
• Parties: STATE of Arizona, Appellee, v. Joseph Nathan EVANS, Appellant.
• Court: Arizona Supreme Court

Page 1225

512 P.2d 1225

109 Ariz. 491

STATE of Arizona, Appellee, v. Joseph Nathan EVANS, Appellant.

No. 2315.

Supreme Court of Arizona, In Banc.

July 24, 1973.

Gary K. Nelson, Atty. Gen., by John J. Dickinson, Special Asst. Atty. Gen., Phoenix, for appellee.

Ross P. Lee, Maricopa County Public Defender, by William C. Blakley, Deputy Public Defender, Phoenix, for appellant.

HOLOHAN, Justice.

The defendant, Joseph Nathan Evans, was found guilty, after a jury trial, of assault with intent to commit robbery, with a prior conviction. He was sentenced to ten years' probation conditioned upon serving eight to ten years in the state prison.

The facts necessary for determination of this appeal are that on September 11, 1970, one Paul Tovar was making a telephone call from a public booth at the corner of Van Buren and 20th Streets in Phoenix, Arizona. The defendant, Evans, approached and asked to borrow a match. Tovar gave him one, then continued his telephone conversation. During the telephone conversation Tovar took out his wallet to find a telephone number which he had on a paper in the wallet. The defendant Evans pushed into the booth, and a struggle ensued. Tovar testified that the defendant hit him and tried to take his wallet from his hand. In the course of the struggle the defendant demanded that Tovar give him money.

Two men pulled up to the scene in an automobile, and they came to Tovar's assistance. Evans fled, but he was apprehended by the men and a police officer who had also arrived on the scene.

The defendant urges that the trial court erred in two respects, namely: (1) failing to instruct the jury on all the elements of the offense and (2) imposition of a sentence not authorized by statute.

The trial court in instructing the jury did not advise it that a necessary element of robbery was the intent to deprive the owner permanently of his property. State v. Brown, 106 Ariz. 453, 478 P.2d 77 (1970). Counsel for the defendant did not request an instruction on the element of intent nor did counsel object to the instructions given by the court. Generally, the failure to give an instruction which has not been requested is not error. State v. Ganster, 102 Ariz. 490, 433 P.2d 620 (1967); State v. Randolph, 99 Ariz. 253, 408 P.2d 397 (1965). Counsel now urges that the failure to instruct the jury on the issue of specific intent was fundamental error.

The trial judge has the duty to instruct the jury upon the law relating to the facts of the case and upon matters vital to a proper consideration of the evidence. In matters vital to the case the trial judge is required to instruct the jury on his own motion even if not requested by the defense. If the trial court fails to instruct the jury on a matter vital to the rights of the defendant, such an omission creates fundamental error. In State v. Pulliam, 87 Ariz. 216, 349 P.2d 781 (1960) this Court defined fundamental error as '. . . such error as goes to the fundation of the case, or which takes from a defendant a right essential to his defense.'

The question then becomes, did the failure to instruct on the issue of specific intent deprive the defendant of a right essential to his defense? The charge against the defendant was assault with intent to rob. The evidence presented by the state clearly supported the charge. The defendant presented as his defense that the event was simply a fight between himself and the victim which had been provoked by the victim. The defendant denied any attempt to take or remove the victim's wallet, and it was his position that he was merely trying to protect himself from the attack by the victim, Tovar.

Under the facts of this case, and considering the defense offered by the defendant, it was not fundamental error for the court to fail to give an instruction on specific intent. In State v. Gomez, 102 Ariz. 432, 432 P.2d 444 (1967), this Court held that the failure to give an instruction on the need for specific intent in the crime of robbery was not fundamental error when there was no issue as to the intent with which the defendant acted. In Gomez the defendant defended on the basis that he was present at the scene but not connected with the actual robbery. In State v. Gomez, supra, this Court pointed out that specific intent becomes an essential part of the defendant's case in those instances in which the defendant takes or attempts to take property based upon the consent of the owner, a claim of right or some similar reason. In such instances the intent with which the defendant acts is an essential element of the case, and the trial court would be required to give an instruction on the meaning and need for specific intent to permanently deprive a person of his property to constitute the crime of robbery.

When the evidence makes intent the battleground of the case, full and explicit instructions on the issue are required. State v. Spratt, 265 N.C. 524, 144 S.E.2d 569 (1965). On the other...