State v. Keith

• Decision Date: 23 July 1975
• Docket Number: No. 2,CA-CR,2
• Citation: 24 Ariz.App. 275,537 P.2d 1333
• Parties: The STATE of Arizona, Appellee, v. Timothy Charles KEITH, Appellant. 524.
• Court: Arizona Court of Appeals

Page 1333

537 P.2d 1333

24 Ariz.App. 275

The STATE of Arizona, Appellee, v. Timothy Charles KEITH, Appellant.

No. 2 CA-CR 524.

Court of Appeals of Arizona, Division 2.

July 23, 1975.

[24 Ariz.App. 276] Bruce E. Babbitt, Atty. Gen. by William J. Schafer, III, and Shirley H. Frondorf, Asst. Attys. Gen., Phoenix, for appellee.

John M. Neis, Pima County Public Defender by Anne-Marie Brady, Asst. Public Defender, Tucson, for appellant.

OPINION

KRUCKER, Judge.

This is an appeal by appellant from his conviction for attempted burglary. Appellant contends that the trial court should have excluded evidence of a completed burglary of an office on another side of the building where appellant was seen pushing on an outside door. He further contends that the trial court erred in denying his motion to require the State to elect on which of the two occurrences it was basing the charge. We reject both contentions and affirm.

The operative facts are as follows. Late in the evening of September 16, 1974, Frank Rotolo and his dog were sitting in Rotolo's backyard. The dog suddenly began to growl. Looking through a grapevine at the south edge of his property, Rotolo saw two young men 'pushing and prying' at a door on the north end of an office building about 90 feet away. He testified that after they had pushed on the door five to seven times, they stopped, turned and walked slowly away under a bright outdoor light. When they passed under the light, Rotolo saw their faces and clothes. He went into his house and reported what he had seen to the police.

A police helicopter arrived in about three minutes and shined its spotlight on the back of the building. Shortly thereafter, Tucson Police Officer Michael Morgan arrived in a squad car. When he arrived he saw no one at the front of the building. He drove to the back of the building and again saw no one. Then he rounded the building and drove to the front again. This time he saw Stephen Fristoe walking toward him, followed at a distance by appellant. Both were out of breath. Noting that they matched the description he had heard on his radio, he got out of his car, drew his service revolver and detained them. Subsequently, Officer Gary Williams brought Rotolo to the front of the building. Rotolo looked at appellant and Fristoe and identified them as the two young men he had seen at the back of the building.

After the officers placed appellant and Fristoe in the back of Officer Morgan's squad car, they investigated the premises. They found that the back door where Rotolo first saw appellant and Fristoe, which later proved to connect with the office of a Dr. Wong, was locked. The doorjamb had pry makrs on it that appeared to have been made with an instrument larger than a screwdriver. The doorjamb had been bent in such a way that chips of white plaster had broken off and fallen to the ground. On the east side of the building the officers discovered that a window leading to the separate office of Dr. Sumwalt had been broken. The inside of the office had been ransacked, but nothing appeared to have been taken. A fabric-textured fingerprint was found in one of the rooms. In addition, under the broken window on top of some dental equipment the officers found a crowbar with a white substance on it. Officer Morgan testified that this substance was the same color and texture as the plaster chips found under Dr. Wong's door and looked exactly the same.

Outside the building, on the spot where Officer Morgan first saw appellant, two pair of gloves were found. On pair was made from a fabric with a pattern similar to that of the fingerprint found in Dr. Sumwalt's office.

The State initially charged appellant with first-degree burglary of Dr. Sumwalt's office. At the preliminary hearing this charge was dismissed for lack of probable cause. In a subsequent indictment, the grand jury charged that:

'On or about the 16th day of September, 1974 . . . (appellant) attempted (sic) to commit burglary of an office located at 4411 East 5th Street, Pima County. . . .'

At trial appellant moved in limine to exclude all evidence of the burglary of Dr. Sumwalt's office. Appellant also moved to require the prosecutor to state which office appellant was carged with attempting to burglarize. The trial court denied both motions. Appellant made numerous objections to the admission of evidence concerning the Sumwalt burglary.

We deal first with appellant's contention that the trial court should have excluded all evidence of the completed burglary of Dr. Sumwalt's office. It has long been established that evidence of other criminal acts committed by a defendant may not be admitted merely to show that he is disposed to commit crimes. The reason for this rule is that the tendency of such evidence to implant unfair prejudice against defendant in the minds of the jury far outweighs its probative value. See, Udall, Arizona Law of Evidence § 115.

It is equally well established that evidence of defendant's other crimes is admissible if it tends to prove an essential element of the crime charged. We think it is indisputable in this case that the completed burglary of Dr. Sumwalt's office, if traceable to appellant, would have been relevant and material to the issue of whether appellant possessed the intent to commit a felony or theft in Dr. Wong's office when he pushed and pried on Dr. Wong's door. See, State v. Hays, 17 Ariz.App. 202, 496 P.2d 628 (1972). Appellant urges, however, that the evidence was legally insufficient to connect him with the completed burglary. We cannot agree. ¹ In State v. Hughes, 102 Ariz. 118, 426 P.2d 386 (1967), our Supreme Court stated:

'. . . the test appears to be that the proof both as to the commission of another crime and its commission by defendant, must be by 'substantial evidence sufficient to take the case...