State v. Harris, 2

Decision Date14 September 1982
Docket NumberNo. 2,CA-CR,2
Citation134 Ariz. 287,655 P.2d 1339
PartiesThe STATE of Arizona, Appellee, v. Eddie Lee HARRIS, Appellant. 2521-4.
CourtArizona Court of Appeals
OPINION

HOWARD, Chief Judge.

Appellant was found guilty by a jury of burglary in the third degree and theft of property with a value less than $100. He was committed to the custody of the department of corrections for imprisonment for a term of two and one-half years on the burglary offense and six months on the theft, both sentences to be served concurrently. 1

The main issue here is whether the crime of facilitation, A.R.S. § 13-1004, is a lesser- included offense of burglary or theft. We find that it is not.

Appellant and a co-defendant, Byron Ervin Jackson, were first observed by police officers in the area of Main Avenue and Speedway Boulevard in Tucson. Jackson was driving a car and appellant was a passenger. They were followed to the approximate area of Alvernon Way and Speedway where they parked the car. They were then observed walking through the neighborhood in the vicinity of Alvernon and Fairmont Avenue. At one point, approximately 40 feet from the intersection of Alvernon and Fairmont, the police officers observed one of the two enter a 1963 van while the other person walked back and forth between the van and the intersection of Fairmont and Alvernon. The officers also observed both appellant and Jackson walk away from the van and both of them apparently holding something in their hands. At one point, one of the individuals ran toward some bushes and appeared to place something in the bushes.

Appellant and co-defendant were then arrested by police officers and returned to Jackson's car. At the time of the arrest, Jackson was carrying a cassette recorder which had been inside the 1963 Ford van, and the 8-track recorder which had also been inside the van was recovered by the police under some bushes.

Since the testimony of the officers did not reveal which of the two defendants had actually gone into the van and which one had been apparently acting as a lookout, it is appellant's position that he was entitled to an instruction on facilitation, an offense defined by A.R.S. § 13-1004 as follows:

"A person ... commits facilitation if, acting with knowledge that another person is committing or intends to commit an offense, such person knowingly provides such other person with means or opportunity for the commission of the offense and which in fact aids such person to commit the offense."

We do not agree.

An instruction on a lesser offense is considered proper if the crime is a lesser-included offense to the one charged if the evidence otherwise supports the giving of the instruction. State v. Dugan, 125 Ariz. 194, 608 P.2d 771 (1980). "In determining whether an offense is a lesser-included offense, the test is whether the more serious offense cannot be committed without necessarily committing the lesser." State v. Malloy, 131 Ariz. 125, 639 P.2d 315, 320 (1982). Burglary in the third degree is committed by...

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16 cases
  • U.S. v. Grisel
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • June 5, 2007
    ...Ann. § 13-1506 includes a "nonresidential structure," and "[t]he word `structure' includes any vehicle." State v. Harris, 134 Ariz. 287, 655 P.2d 1339, 1340 (App.1982). Ark.Code Ann. § 5-39-201 includes "a residential occupiable structure," and Arkansas courts have applied this definition t......
  • State v. Politte
    • United States
    • Arizona Court of Appeals
    • December 30, 1982
    ...included offense of unlawful sale since the sale can be committed without necessarily committing facilitation. See State v. Harris, 134 Ariz. 287, 655 P.2d 1339 (1982). Severance The appellant presents three reasons for finding the trial court erred in denying his several motions for severa......
  • State v. Scott
    • United States
    • Arizona Supreme Court
    • December 21, 1993
    ...176 Ariz. 231, 860 P.2d 498 (App.1993); State v. Politte, 136 Ariz. 117, 121, 664 P.2d 661, 665 (App.1982); State v. Harris, 134 Ariz. 287, 288, 655 P.2d 1339, 1340 (App.1982). In other words, "the [lesser] offense must be composed solely of some but not all of the elements of the greater c......
  • State v. Ennis
    • United States
    • Arizona Court of Appeals
    • October 2, 1984
    ...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......
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