State v. Johnson
| Decision Date | 18 January 1982 |
| Docket Number | No. 5239,5239 |
| Citation | 131 Ariz. 299,640 P.2d 861 |
| Parties | STATE of Arizona, Appellee, v. Therron A. JOHNSON, Appellant. |
| Court | Arizona Supreme Court |
Eleanor L. Miller, Phoenix, for appellant.
Defendant pled guilty to the crime of solicitation to commit murder, a class 3 felony under A.R.S. § 13-1002(B)(1). He appeals from the judgment of guilt and the sentence of imprisonment for eight years. This Court has jurisdiction pursuant to Rule 47(e)(5), Rules of the Supreme Court, 17A A.R.S.
In May, 1979, appellant, then a resident of Oregon, entered into a contract for hauling timber with one Richard Rice. A dispute arose regarding the time of payment and the amount appellant owed Rice. As a result, Rice made repeated threats against appellant's life if the money was not paid. Because of these threats, often made in the presence of third parties, appellant left his home in Oregon and with his wife and child settled at Lake Havasu City, Arizona. He learned, however, through phone conversations with relatives and friends in Oregon, that Rice had discovered where he was working and was told that Rice was still coming after him.
At about this same time, appellant hired Harold Covey as a driver for one of his trucks. In a conversation with appellant, Covey said: "I know a way to eliminate that problem." Thereafter, Covey suggested a plan to which appellant assented. As a result of that conversation, Covey went to Oklahoma, where he sought to purchase explosives from two men who, unbeknownst to him, were undercover agents for the Bureau of Alcohol, Tobacco, and Firearms. Covey arranged for appellant to contact the undercover agents. Appellant and the agents met in Lake Havasu City, at which time they agreed the price for killing Rice was to be $5,000. They also agreed that if it became necessary to kill Sharon Morgan, Rice's girl friend, appellant would pay another $1,000. To the possibility that Ms. Morgan's four-year-old son, Joshua, might also have to be killed, appellant replied that he would not like to see it happen but that, "if they needed to," it should be done.
Appellant approved of the agents' plan to accomplish the killings by means of explosives to be detonated by remote control. Appellant paid the agents an advance of $2,500, and the agents left, ostensibly to carry out the homicides. Upon their return, the agents informed appellant that they had killed Rice, Sharon, and Joshua. Appellant then paid the agents $3,500, leaving $1,000 as a balance due, with assurances that the remainder would be paid shortly. Appellant was arrested and charged with conspiracy to commit murder, A.R.S. § 13-1003. Pursuant to a plea agreement, the conspiracy charge was dismissed and appellant
pled guilty to solicitation to commit murder. A.R.S. § 13-1002. A.R.S. § 13-1002(A) provides:
Appellant raises the following issues on appeal:
1. Did the trial judge err in finding aggravating circumstances under A.R.S. § 13-702(D)(2), (4), and (5)?
2. Did the trial judge improperly fail to find additional mitigating factors?
3. Were improper matters considered during the sentencing proceedings?
4. Did the mitigating circumstances outweigh the aggravating circumstances?
Appellant contends the trial judge erred in finding an aggravating circumstance under A.R.S. § 13-702(D)(2). This section requires the sentencing court to consider as an aggravating circumstance the "(u)se, threatened use or possession of a deadly weapon or dangerous instrument during the commission of the crime." Id.
The following statement by the sentencing judge sets forth the basis for his finding of this aggravating circumstance:
(Emphasis added.)
The court therefore considered that the crime which was being solicited would have involved the use of a deadly weapon or dangerous instrument. This is clearly erroneous. Under the language of the statute, the court must determine whether the aggravating circumstance existed "during the commission of the crime." A.R.S. § 13-702(D)(2). The crime for which appellant was sentenced was solicitation. The crime was completed when appellant, with criminal intent, communicated with the undercover officers. 1 While it is conceivable that a deadly weapon or dangerous instrument could be used in the commission of the offense of solicitation, such circumstances simply were not present in this case.
Appellee argues that when a court sentences an individual for the crime of solicitation it may consider not only the solicitation itself, but also the object of the solicitation. Under the criminal code, it is the object of the solicitation that gives the communication its criminal character-the more dangerous the object of the solicitation, the more dangerous the solicitation itself. By A.R.S. § 13-1002(B), the severity of the penalty for solicitation is correlated to the gravity of the crime solicited-the more reprehensible the object of the solicitation, the more severe the punishment for the solicitation. The sentencing court is required Appellant asserts that the sentencing court also believed the solicitation of the two undercover officers provided a basis for finding, under A.R.S. § 13-702(D)(4), that appellant's offense was aggravated by the presence of an accomplice.
to consider the object of the solicitation in determining the applicable sentence. But under the statute, the crime of solicitation is not aggravated when the solicitation is made without the use, threatened use, or possession of a deadly weapon or dangerous instrument. The aggravating circumstance of A.R.S. § 13-702(D)(2) was not present in this case.
The presence of an accomplice aggravates a defendant's offense under A.R.S. § 13-702(D)(4) for two reasons. First, a defendant who is willing to join with others in criminal activity evidences a more dangerous disposition than one who does not. 2 Second, the presence of more than one perpetrator increases the dangerous nature of the offense itself. 3
Appellant argues that under A.R.S. § 13-301, peace officers acting in their official capacity within the scope of their authority and in the line of duty are excluded from the definition of accomplice. We do not think, however, that this statute has a direct bearing on the issue of aggravation. The obvious purpose for the exclusion is to exempt peace officers from criminal liability when they participate in a course of action designed to result in the apprehension of known or suspected criminals.
For purposes of enhancing a defendant's sentence under A.R.S. § 13-702(D)(4), the inquiry is not whether the coparticipant could be held liable as an accomplice under A.R.S. § 13-301. Rather, the sentencing court should look to the objective circumstances as well as defendant's state of mind. A finding of an aggravating circumstance under A.R.S. § 13-702(D)(4) is proper where: (a) From an objective standpoint, the dangerous nature of the offense was increased because of the actual presence or participation of multiple perpetrators; or (b) at the time of the commission of the offense, defendant believed he was acting in concert with another, whether the other was either excluded by A.R.S. § 13-301 or merely feigned agreement. From an objective standpoint, the dangerous nature of the offense was not increased by the presence of the officers.
Nor can it be said that appellant was acting in concert with the officers when the solicitation took place. Although appellant sought their participation in the object of the solicitation-the murders-this was not true with respect to the solicitation itself. We find that the undercover officers were not appellant's accomplices to the solicitation for purposes of A.R.S. § 13-702(D) (4).
The sentencing court also considered Covey's participation relevant in its determination that appellant committed the solicitation with the presence of an accomplice. But it is not clear from the record whether the court determined that Covey (Emphasis added.)
was an accomplice, although from the facts it is clear he was. At the time of sentencing, the court stated:
The record is abundant with evidence that Covey was an accomplice. For example, at the aggravation-mitigation hearing, appellant testified:
"I told (Covey) that there was a fellow (in Oregon) that gave me a problem and I can't go back up there.
(Covey) suggested to me, 'I know a way of eliminating that problem', and we talked about it.
Then he disappeared and came back three days later, and he said,
He made a phone call in my...
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