State v. Grijalva, 2

Decision Date18 April 1983
Docket NumberCA-CR,No. 2,2
Citation667 P.2d 1336,137 Ariz. 10
PartiesThe STATE of Arizona, Appellee, v. Francisco Daniel GRIJALVA, Appellant. 2804.
CourtArizona Court of Appeals
Robert K. Corbin, Atty. Gen. by Bruce M. Ferg, Asst. Atty. Gen., Tucson, for appellee
OPINION

BIRDSALL, Judge.

This is an appeal from a conviction in Pima County of attempted second degree burglary and theft under $100.

During the night of February 11, 1982, Rebecca Gorrell heard noises outside her apartment, looked out and saw nothing. Upon answering a knock on her back door, where no one ever knocked, she discovered the appellant who told her some children had let the air out of her tires. She did not go out or let the appellant in and told him she would inform her husband about the tires although she was actually unmarried. Later, she heard a noise by her window and called the police who, upon arrival, saw a man come from the vicinity of her apartment and ride off on a bicycle. The police chased and caught the man, the appellant, with a bike stolen two days before, a jar of vaseline, gloves, a wig and marijuana. Ironically, the appellant was caught in front of the house from which the bike had been stolen. Further investigation revealed two flat tires on Ms. Gorrell's car, chipped paint on her windows, pry marks on her door, a bag of her old underwear which she had placed in the trash scattered about her backyard, a tire valve-stem remover on the bike, footprints matching the appellant's shoes near the windows and car, and a knife near her apartment.

At trial, the court directed a verdict of acquittal on the charge of attempted first degree burglary with an allegation of dangerous nature since there was no showing that the knife had ever been used or exhibited. The jury found the appellant guilty of attempted second degree burglary, theft under $100 (the bicycle), with four prior convictions which were admitted by the appellant.

The appellant first argues that following the directed verdict the trial court amended the information to a charge of attempted second degree burglary without his consent. It is improper to amend an information which changes the legal basis of the charges unless the defendant consents. See e.g., State v. Kelly, 123 Ariz. 24, 597 P.2d 177 (1979). The appellant asserts he was prejudiced by the admission of the knife prior to the directed verdict since that evidence would not pertain to attempted second degree burglary. He also contends that prejudice resulted from the discussions in opening statements concerning attempted first degree burglary.

We disagree for several reasons. First, no amendment of the information occurred as in Kelly, supra. Here, the trial court dismissed the charge of attempted first degree burglary, thus automatically leaving in existence the necessarily lesser-included charge of attempted second degree burglary. Rule 13.2(c), Rules of Criminal Procedure, 17 A.R.S. states that the "[s]pecification of an offense in an indictment or information shall constitute a charge of that offense and of all offenses necessarily included therein." The appellant could not commit attempted first degree burglary without necessarily committing the included offense of attempted second degree burglary. Since the information already contained notice of the charge of the necessarily included offense of attempted second degree burglary, no amendment was necessary.

The admission of the knife into evidence was not error even if the original charge had been attempted second degree burglary since it constituted circumstantial evidence of both the appellant's attempted entry into the house and intent to commit a felony. The jury could have believed that the appellant intended to use the knife to persuade the intended victim. In State v. Greenawalt, 128 Ariz. 388, 626 P.2d 118 (1981), police at a roadblock were fired upon from a passing van. Weapons later admitted into evidence were discovered near where the appellants were hiding in the desert when arrested. The supreme court found it more probable than not that those weapons were the ones fired from the van and, therefore, "a sufficient connection was established between the weapons and the crimes charged." Id. at 395, 626 P.2d at 125. Likewise, in the present case a sufficient connection exists since there was evidence of pry marks on the victim's door and windows, which could have been made with the knife, and the knife was found near the place where the police first spotted the appellant.

The discussions in opening statements concerning attempted first degree burglary were not prejudicial. The trial court properly denied the motions for mistrial and a request that the jury be informed, prior to the appellant's testimony, that the charge was now attempted second degree burglary. This ruling was well within the trial court's discretion. The jury was instructed to make its determination based on the evidence and that the opening statements were not evidence. They were instructed that the charge against the appellant was attempted second degree burglary, informed of the proof required to sustain that charge and given a verdict form specifying attempted burglary in the second degree. There was no error.

The appellant next contends that the prosecutor improperly argued during closing that the appellant was a "four time felon Good Samaritan" and referred to the felony which the appellant intended to commit in the house as a "rape that never happened". Several comments by the prosecutor developed this theme. We find no error justifying reversal. The appellant's counsel also described him as a Good Samaritan who only sought to notify Ms. Gorrell that her tires were flat. The prior convictions were in evidence. Likewise, the state, as an element of attempted second degree burglary, had to show that the appellant intended to commit a felony in the house. The appellant also complains of comments regarding the psychological trauma of rape and the difficulty rape victims may have identifying rapists. The state's theory of the case was that the intended felony was rape. Circumstantial evidence was admitted which supported that theory. The prosecutor's remarks were supported by the evidence, State v. Branch, 108 Ariz. 351, 498 P.2d 218 (1972), and were not error. State v. Kelley, 110 Ariz. 196, 516 P.2d 569 (1973). The trial court was in the best position to judge the effect of the prosecutor's closing arguments.

The appellant also maintains that the following statement by the prosecutor during closing argument was improper and intended to inflame the passions and fears of the jury:

"I just raised this question, (sic) do we have to wait until this man finds a victim who will open his door, open that door to him. Do we have to wait until someone is raped to deal with this man."

Standing alone this argument appears to be a classic illustration of an attempt to improperly influence the jury by calling on their emotions. State v. Makal, 104 Ariz. 476, 455 P.2d 450 (1969), cert. denied, 404 U.S. 838, 92 S.Ct. 128, 30 L.Ed.2d 71 (1971). However, when considered with the facts of this case, the deflated tires, the conversation at the door, the scattering of the victim's underclothes and the vaseline, there is an arguable inference that this was a burglar who planned his crime and therefore might do so again. See State v. Garrison, 120 Ariz. 255, 585 P.2d 563 (1978). Even more important is the fact that this was a charge of attempt and the fact that nothing really happened had been brought home to the jury from the beginning. This argument is proper to counteract that impression. Assuming arguendo that the argument was improper, the trial judge implicitly found that under the circumstances of the case the jury was probably not influenced by the remarks. See State v. Smith, 114 Ariz. 415, 561 P.2d 739 (1977); State v. Gonzales, 105 Ariz. 434, 466 P.2d 388 (1970). Again, the trial judge was in the best position to decide this question, and we will adhere to his judgment since no clear abuse of discretion has been shown. The appellant next argues that reversible error occurred when the trial court denied his motion for a mistrial after the following statement by a Tucson police officer on direct examination by the state:

"Q. [by prosecutor] After you had your brief discussion about the use of this vaseline, do you recall if the suspect made any other statements?

A. Yes, he became a little more light-hearted and we continued talking. I don't recall exactly how it was, statements were made, of previous instances where he was involved in criminal justice system [sic]."

The appellant contends that the statement indicated serious unrelated prior bad acts and was thus inadmissible, and that, since the prosecution had "let the cat out of the bag", the appellant was compelled to take the stand and admit four prior felony convictions. We disagree.

The general rule is that evidence which indicates serious unrelated prior bad acts of the defendant that would otherwise be inadmissible merits a mistrial. See State v. Smith, 123 Ariz. 243, 599 P.2d 199 (1979). However, any resulting prejudice, to be reversible error, must make it reasonably probable that the verdict would have been different if the testimony had not been admitted. State v. Sianez, 103 Ariz. 616, 447 P.2d 874 (1968).

The officer's testimony alluded to involvement in the criminal justice system, but not necessarily as a criminal. The testimony did not mention arrests, convictions or the degree of any prior criminal activity. In addition, the appellant rendered any possible prejudice harmless by later specifically admitting four prior felony convictions. State v. Ybarra, 97 Ariz. 200, 398 P.2d 905 (1965). Compare State v....

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