State v. Foster
| Decision Date | 20 November 1978 |
| Docket Number | CA-CR,No. 2,2 |
| Citation | 121 Ariz. 287,589 P.2d 1319 |
| Parties | The STATE of Arizona, Appellee, v. Charles Bert FOSTER, Jr., Appellant. 1313. |
| Court | Arizona Court of Appeals |
Appellant was convicted of defrauding a business establishment in violation of A.R.S. § 13-318. The only issue on appeal is whether the trial court erred in refusing to grant him a one-day continuance to produce a witness to corroborate his testimony. We find it did not and affirm. The pertinent facts are as follows. Appellant, using an assumed name, checked into the Rodeway Motel in Tucson on December 17, 1976, and paid for his first night's lodging. He remained at the motel through January 2, 1977, but made no further payments. Both the husband and wife who owned and operated the motel made periodic requests for payment. Appellant gave assurances to each that he intended to pay. On January 2, the husband went to appellant's room and asked him for the $237.70 he owed to date. Appellant again promised to pay, stating that he was planning to go to school and would have money as soon as he got the government grant he had applied for. Appellant then left the motel, taking one suitcase with him but leaving many of his belongings behind. After he left, the owners locked the door so that appellant could not reenter the room. On January 9, appellant called the motel and asked if he could come for his clothes. The owners told him to come and, while awaiting his arrival, called the police. Appellant was arrested at the motel. After he was taken to the police station in a police car, two airplane tickets to Cincinnati were discovered in the back seat where he had been riding.
The crime of defrauding a business establishment is a crime of specific intent. The state has the burden of establishing the specific intent. State v. Jamison, 110 Ariz. 245, 517 P.2d 1241 (1974). At trial, the state argued that defendant's intent to defraud the innkeeper was evidenced by the fact that he registered under an alias, claimed that he was planning on attending Pima College but never registered, and bought two airline tickets for Cincinnati, one ticket showing a departure date of January 9, the day before classes at Pima were to begin.
The defense argued that appellant's promises to pay were genuine, that his use of an alias was due to unrelated threats on his life, that his failure to register at Pima College was a matter of poor planning, and that his entire behavior, particularly in leaving his clothes at the motel and recontacting the motel of his own accord, were inconsistent with an intent to defraud. With regard to the airplane tickets, appellant testified that because he felt his life was in danger, he had temporarily entertained the idea of going to Cincinnati but later changed his mind when his companion refused to join him.
On the third and final day of trial, defense counsel asked the court for a one-day continuance because appellant's companion, who was under subpoena to testify on his behalf, had not appeared. The state opposed the continuance and offered to stipulate as to what the absent witness's testimony would be. The trial judge then stated:
THE COURT: All right. With that in mind, and inasmuch as Mr. Nesbitt is stipulating to what the witness would testify to if he were here, and inasmuch as this is the third day of a trial that started on Friday, went over to Monday afternoon rather than the morning to accommodate the defendant's counsel, and also with the understanding that the witness had been notified that's the witness Whipp had been notified to be here on Tuesday, and thereafter the matter was continued again to Tuesday afternoon again to accommodate Mr. Whipp, with this in mind and with the stipulation in mind, the court is going to deny your motion for a continuance.
The stipulation, which incorporated verbatim defense counsel's offer of what the witness's testimony would be, was then read to the jury:
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State v. Jackson, 1
...absent an abuse of discretion and resulting prejudice. State v. Amarillas, 141 Ariz. 620, 688 P.2d 628 (1984); State v. Foster, 121 Ariz. 287, 589 P.2d 1319 (1978). In this matter, the court indicated it denied the motion based on the fact appellant had ample opportunity to secure the atten......
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State v. Brown
...proof defendant intended to help commit crime), aff'd in part and rev'd in part, 123 Ariz. 166, 598 P.2d 985 (1979); State v. Foster, 121 Ariz. 287, 589 P.2d 1319 (App.1978) (state has burden of proving specific intent to defraud business ¶ 19 But, under our current criminal code, we no lon......
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State v. Becerill
...State v. Downing, 109 Ariz. 456, 511 P.2d 638 (1973). The circumstances here are distinguishable from those in State v. Foster, 121 Ariz. 287, 589 P.2d 1319 (App.1978), and State v. Reynolds, 123 Ariz. 117, 597 P.2d 1020 (App.1979). Furthermore, even applying the factors to be considered, a......
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State v. Reynolds
...1 Two weeks before sentencing the court conducted an "evidentiary hearing" at which time Dr. Hoogerbeets testified. In State v. Foster, Ariz., 589 P.2d 1319 (App.1978), this court recently discussed the standard for reviewing a trial court's denial of the accused's motion for a continuance ......