State v. Large

• Decision Date: 25 March 2014
• Docket Number: No. 1 CA–CR 13–0115.,1 CA–CR 13–0115.
• Citation: 234 Ariz. 274,321 P.3d 439,683 Ariz. Adv. Rep. 7
• Parties: STATE of Arizona, Appellee, v. Jonathan Elijah LARGE, Appellant.
• Court: Arizona Court of Appeals

234 Ariz. 274

321 P.3d 439

683 Ariz. Adv. Rep. 7

STATE of Arizona, Appellee,

v.Jonathan Elijah LARGE, Appellant.

No. 1 CA–CR 13–0115.

Court of Appeals of Arizona, Division 1.

March 25, 2014.

Arizona Attorney General's Office By Jana Zinman, Phoenix, Counsel for Appellee.

Maricopa County Public Defender's Office By Christopher V. Johns, Phoenix, Counsel for Appellant.

Presiding Judge DONN KESSLER delivered the opinion of the Court, in which Judge PATRICIA K. NORRIS and Judge MAURICE PORTLEY joined.

OPINION

KESSLER, Presiding Judge.

¶ 1 Jonathan Elijah Large (“Large”) appeals his conviction and sentence for one count of armed robbery. We conclude, in light of Alleyne v. United States, ––– U.S. ––––, 133 S.Ct. 2151, 2163, 186 L.Ed.2d 314 (2013), that Large was entitled to have a jury determine whether he was on parole when he committed the offense because his release status increased the statutory minimum sentence that could be imposed. However, because it is undisputed that he was on parole when he committed the offense, there was no prejudice in having the court find that fact. Accordingly, we affirm.

FACTUAL AND PROCEDURAL HISTORY

¶ 2 On July 16, 2012, Large approached the victim with a knife in a shopping plaza parking lot and demanded money. As Large approached, the victim stood up and dropped his cell phone. When the victim refused to give Large money, Large grabbed his cell phone from the ground and fled. The victim and several other men, including two eyewitnesses to the incident, followed Large to an apartment complex where police apprehended him soon thereafter.

¶ 3 A grand jury indicted Large on one count of armed robbery, a class 2 dangerous felony. The State alleged that Large committed the offense while on parole for facilitation of especially aggravated robbery, a Tennessee felony. At trial, Large testified that he was convicted of a felony in Tennessee in February 2005. A jury convicted Large of armed robbery and found that the offense was dangerous.

¶ 4 After the conviction, the court held a sentencing hearing on the State's allegation of parole status. A Tennessee parole officer testified that in 2005 in Tennessee Large was convicted of facilitation of especially aggravated robbery, a class B felony. The officer explained that Large was on parole for his Tennessee conviction on the date of the armed robbery in this case, and that he remained on parole at the time of the sentencing hearing. The State asked the officer to explain the offense of especially aggravated robbery, but withdrew the question when defense counsel objected to the information's relevance. However, the court admitted a certified copy of the Tennessee judgment into evidence.

¶ 5 The court found that Large was on parole for a felony offense at the time he committed the armed robbery. Defense counsel asked the court to sentence Large to the presumptive sentence of ten and one half years, acknowledging “that's the lowest he can get[ ] because the [c]ourt did find he was on parole at the time of this offense.” Consequently, the court sentenced Large to a ten-and-one-half-year, flat-time prison term pursuant to Arizona Revised Statutes (“A.R.S.”) section 13–708(A) (Supp.2013),¹ noting that a presumptive flat-time sentence was the minimum Large could receive because of his parole status at the time of the offense.

¶ 6 Large timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1) (2003), 13–4031 (2010), and –4033(A)(1) (2010).

DISCUSSION

¶ 7 Large challenges his conviction and sentence on several grounds: (1) the State failed to present sufficient evidence that his intent to commit robbery coexisted with his use of force; (2) he was entitled to have a jury find beyond a reasonable doubt that he was on parole for a felony offense at the time that he committed the armed robbery because his release status exposed him to a sentence beyond the statutory maximum; and (3) the trial court erred by enhancing his sentence under A.R.S. § 13–708(A) without finding, on the record, that the Tennessee offense for which he was on parole would have been a felony under Arizona law. We requested supplemental briefing addressing whether the United States Supreme Court's recent decision in Alleyne entitled Large to have a jury find his parole status beyond a reasonable doubt. In his supplemental brief, Large argues that Alleyne makes Apprendi² applicable to his release status because such status exposes him to a sentence beyond the statutory minimum, that this principle applies retroactively, and that the trial court committed reversible error by finding his release status instead of submitting the issue to the jury. We address each argument in turn.

I. Sufficiency of the Evidence

¶ 8 Large contends that the State failed to present sufficient evidence establishing the coexistence of his intent to commit robbery and his use of force. We review the sufficiency of the evidence de novo, State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011), construing “the evidence in the light most favorable to sustaining the verdict and resolv[ing] all reasonable inferences against the defendant.” State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). “Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction.” State v. Soto–Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. Scott, 113 Ariz. 423, 424–25, 555 P.2d 1117, 1118–19 (1976)).

¶ 9 “A person commits armed robbery if in the course of taking property from the presence of another against his will, such person is armed with a deadly weapon and threatens or uses force with the intent to coerce the surrender of property or to prevent resistance.” State v. Murray, 184 Ariz. 9, 31, 906 P.2d 542, 564 (1995); see alsoA.R.S. §§ 13–1902(A) (2010), –1904(A)(1) (2010). The intent to commit robbery and the use of force must coexist, otherwise the crime is a theft. State v. Comer, 165 Ariz. 413, 420–21, 799 P.2d 333, 340–41 (1990). Large does not dispute that he demanded money from the victim at knifepoint. Nor does he dispute that he took the cell phone against the victim's will. Large concedes that he is guilty of theft.³ INSTEAD, LARGE ARGues that his crime did not rise to the level of an armed robbery because he did not threaten or use force against the victim with the intent to coerce surrender of the cell phone or to prevent the victim from retaining it. Although Large threatened the victim with the intent to coerce surrender of money, he argues that his intent did not transfer to taking the cell phone, and that there was no evidence that he accomplished the theft of the cell phone through threat or force. We disagree.

¶ 10 Two eyewitnesses testified that Large approached the victim with a knife and demanded money. One of the eyewitnesses saw the victim stand up and drop his phone, and saw Large pick up the phone and flee. The other corroborated that account and testified that the victim shouted “[that] guy took my phone” immediately afterward. Large argues that the State failed to prove the coexistence of intent and use of force because neither witness testified that the victim dropped his phone or did not attempt to retrieve it because of Large's threats or use of force. But Large overlooks the victim's own testimony. The victim explained that he stood up and dropped his phone in response to Large approaching with a knife and demanding money. Further, the victim testified that he would have retrieved his phone after dropping it had Large not been wielding a knife. Thus, the victim's testimony establishes the causal connection Large claims was lacking in other eyewitness accounts.

¶ 11 Large's reliance on State v. Lopez, 158 Ariz. 258, 762 P.2d 545 (1988), and State v. Wallace, 151 Ariz. 362, 728 P.2d 232 (1986), is misplaced. In both cases, our supreme court concluded that the defendant did not commit armed robbery because he formulated the intent to take the victim's property only after murdering the victim. Lopez, 158 Ariz. at 264, 762 P.2d at 551;Wallace, 151 Ariz. at 366, 728 P.2d at 236. Thus, in both Lopez and Wallace the defendant's use of force did not coexist with his intent to take the victim's property. Here, on the other hand, Large's intent from the start of the encounter was to deprive the victim of his property. That the property he ultimately took was different from the property he initially demanded does not change the fact that during the encounter Large took the victim's property against his will and prevented resistance by wielding a deadly weapon. Accordingly, there was sufficient evidence to support the conviction.

II. Applicability of Alleyne and Apprendi to Release Status Enhancement

¶ 12 Next, Large argues that he was entitled to have a jury determine his parole status because that fact exposed him to a penalty beyond the statutory maximum. In Apprendi v. New Jersey, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. 466, 490, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). In Alleyne, the United States Supreme Court held that Apprendi applies with equal force to facts that increase the statutory mandatory minimum sentence. 133 S.Ct. at 2160. In State v. Gross, 201 Ariz. 41, 45, ¶ 19, 31 P.3d 815, 819 (App.2001), we addressed whether a defendant's release status had to be found by a jury beyond a reasonable doubt before receiving an enhanced sentence under A.R.S. § 13–708(D).⁴Section 13–708(D) requires the trial court to add two years to a defendant's sentence if the defendant committed the offense while “released on bond or on the person's own recognizance on a separate felony offense or while the person is escaped from preconviction...