State v. King, 1
| Decision Date | 23 August 1990 |
| Docket Number | No. 1,CA-CR,1 |
| Citation | 166 Ariz. 342,802 P.2d 1041 |
| Parties | STATE of Arizona, Appellee, v. Michael Lemont KING, Appellant. 89-615. |
| Court | Arizona Court of Appeals |
Defendant Michael Lemont King appeals from the judgment of conviction and the sentence imposed after a jury found him guilty of one count of robbery. The offense was designated a nondangerous, repetitive, class 4 felony. Defendant received the presumptive sentence of six years' imprisonment and was given credit for 137 days of presentence incarceration. The trial court ordered that the sentence be served consecutively to any sentence that might be imposed in the proceeding to revoke defendant's probation that was then pending in Pinal County Superior Court.
Defendant raises the following issues on appeal:
(1) Did the trial court err by refusing defendant's requested instruction on theft as a lesser-included offense of robbery?
(2) Did the trial court err by ordering that the sentence in this matter run consecutively to any sentence that might be imposed in defendant's pending Pinal County probation revocation matter?
We affirm defendant's conviction, but remand for resentencing because we find that the trial court erred in ordering that defendant's sentence run consecutively to a sentence that had not yet been imposed.
The facts, taken in the light most favorable to sustaining the verdict, are as follows. On December 24, 1988, four men were driving along Van Buren Street in Phoenix. They saw a woman at a telephone booth near a motel and stopped to talk to her. The woman invited them into her motel room "to party". Three of the men went with her. Inside the room, two of the men agreed to pay the woman for sex. The other man returned to the car. The lights were turned out, and the two remaining men lowered their pants. At this point, defendant came out of his hiding place in a closet, claimed to be a police officer, and threatened to shoot both men. He frisked the victims and took their money. He then stated that he was not going to arrest them, but that he was going to keep their money. Both men left the motel room. They saw a police car nearby, flagged it down, and reported the incident. Defendant was arrested in the motel room moments later. He did not testify at trial.
At the conclusion of the evidence, defendant's counsel requested that the jury be instructed on theft as a lesser-included offense of robbery. He correctly noted that the crime of robbery consists of all of the elements that make up the crime of theft plus the additional element of threat or force. The prosecutor objected, stating that the only evidence presented was that defendant had threatened to shoot the victims prior to taking their money. Defendant's counsel asserted, however, that the jury could find defendant guilty of theft if it believed that the state had met its burden of proving all of the elements of robbery except the element of threat or force. He contended that requiring defendant to produce evidence that no force or threats had occurred before being entitled to a theft instruction improperly placed the burden of proof on defendant. We find no error.
An instruction on a lesser-included offense is proper if the crime in question is a lesser-included offense of the crime charged and the evidence otherwise supports the giving of the instruction. State v. Celaya, 135 Ariz. 248, 660 P.2d 849 (1983). In the present case, both of the victims testified that defendant threatened to shoot or kill them before taking their money. This evidence only supported an instruction on robbery. A defendant is not entitled to a lesser-included offense instruction where the evidence is such that he is either guilty of the crime charged or not guilty at all. State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). The mere possibility that the jury might choose to disbelieve a portion of the state's case in such a situation does not require the court to instruct on a lesser-included offense. Id. at 300, 451 P.2d at 881.
Defendant contends that the testimony of Phoenix Police Officer Daniel Wallace supported a theft instruction. 1 He maintains that one of the victims gave Wallace a version of the facts in which the victims' money was taken without force or threats.
It is true that the portion of Wallace's testimony that defendant refers to does not indicate that the victim told Wallace that defendant had threatened the victims with a gun. However, Wallace stated in other testimony that the same victim had told him that defendant purported to have a gun. The victim also told Wallace that although he never saw a gun, he believed defendant's statement that he had one. Taken as a whole, Wallace's testimony does not support a theft instruction.
At the time that defendant was sentenced in this case, a petition to revoke his probation was pending in Pinal County consolidated cause numbers CR 10048 and CR 10097. The trial court ordered that defendant's six-year sentence run consecutively to whatever sentence might ultimately be imposed in the Pinal County matter. On appeal, defendant argues that the trial court erred in ordering that his sentence run consecutively to a sentence that had not yet been imposed. The state responds that the sentence was authorized by A.R.S section 13-708. We disagree with the state's position.
We first observe that A.R.S. section 13-604.02(B) provides for mandatory...
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