State v. Larin

• Decision Date: 16 October 2013
• Docket Number: No. 2 CA–CR 2012–0156.,2 CA–CR 2012–0156.
• Citation: 233 Ariz. 202,310 P.3d 990,671 Ariz. Adv. Rep. 6
• Parties: The STATE of Arizona, Appellee/ Cross–Appellant, v. George Benjamin LARIN, Appellant/ Cross–Appellee.
• Court: Arizona Court of Appeals

233 Ariz. 202

310 P.3d 990

671 Ariz. Adv. Rep. 6

The STATE of Arizona, Appellee/ Cross–Appellant,

v.George Benjamin LARIN, Appellant/ Cross–Appellee.

No. 2 CA–CR 2012–0156.

Court of Appeals of Arizona, Division 2, Department A.

Oct. 16, 2013.

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Nicholas Klingerman, Tucson, Attorneys for Appellee/ Cross–Appellant.

Emily Danies, Tucson, Attorney for Appellant/ Cross–Appellee.

OPINION

VÁSQUEZ, Presiding Judge.

¶ 1 Following a jury trial, George Larin was convicted of one count each of first-degree burglary, armed robbery, and aggravated robbery and two counts of kidnapping. The trial court sentenced him to concurrent terms of imprisonment, the longest of which was eighteen years. On appeal, Larin argues the court erred by refusing to give his requested jury instructions for lesser-included offenses, denying his motion for a mistrial on the ground that the state sought to elicit an inadmissible in-court identification, and denying his motion for a new trial. The state cross-appeals, arguing the court erred by not allowing the jury to consider dangerous-nature sentencing allegations during the aggravation phase of trial. For the reasons that follow, we affirm Larin's convictions but vacate his sentences and remand for proceedings consistent with this opinion.

Factual and Procedural Background

¶ 2 We view the facts in the light most favorable to upholding Larin's convictions. See State v. Molina, 211 Ariz. 130, ¶ 2, 118 P.3d 1094, 1096 (App.2005). On June 2, 2011, around 5:30 p.m., A.A. was at his home in Tucson working on a vehicle in his garage when he saw three masked men in a white car drive by in the alley. A.A. closed his garage door and called his neighbor to notify him of what he had seen. The neighbor's wife eventually called the police.

¶ 3 Meanwhile, a few houses away, J.W. was leaving his friend A.V.'s house where he had purchased heroin. J.W. left through the back door, and, as soon as he got into his vehicle, a masked man later identified as Alonzo Rada, who had been hiding in the back seat, pointed a gun at him. J.W. and Rada soon were joined by two other men, both of whom were wearing masks and holding handguns. The two men later were identified as Anthony Torre and Larin.

¶ 4 The three men walked J.W. at gunpoint to the rear of A.V.'s house and directed him to knock on the back door. When A.V. opened the door, Larin and the others forced their way in at gunpoint. A.V.'s wife, S.B., and the children were led into one of the bedrooms where they remained for the duration of the incident. A.V. and J.W. were told to “go into the living room and sit on the couch [with their] hands on [their] heads.” A.V., who understood that he “was being robbed,” told the men where the heroin was located. While Larin and Rada searched for the heroin, Torre held A.V. and J.W. at gunpoint. After finding the heroin, Larin and Rada began collecting other items, including cash, a gun, televisions, and game consoles. The three men then decided to leave. Torre left through the back door but returned immediately after he saw police officers outside. After telling Larin and Rada about the officers, Torre left through the front door and officers immediately apprehended him. Larin and Rada then got rid of their guns, took off their masks, and, as they attempted to leave through the back door, were arrested.

¶ 5 Larin was charged by indictment with one count each of first-degree burglary, armed robbery, aggravated robbery, and possession of a deadly weapon by a prohibited possessor and two counts each of aggravated assault with a deadly weapon or dangerous instrument and kidnapping. The state also alleged dangerous-nature sentence enhancements for each count of first-degree burglary, armed robbery, aggravated robbery, aggravated assault, and kidnapping. The jury found Larin guilty of first-degree burglary, armed robbery, aggravated robbery, and both counts of kidnapping and acquitted him of the remaining counts. He was sentenced as described above. Larin's appeal and the state's cross-appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12–120.21(A)(1), 13–4031, 13–4032, and 13–4033(A)(1).

Discussion

Lesser–Included Offenses

¶ 6 Larin contends the trial court erred in refusing to give his requested jury instructions on lesser-included offenses and denying his motion for a new trial on the same ground. We review a trial court's denial of a requested instruction for an abuse of discretion, State v. Musgrove, 223 Ariz. 164, ¶ 5, 221 P.3d 43, 46 (App.2009), and will not reverse absent a clear abuse of that discretion and resulting prejudice, State v. Garfield, 208 Ariz. 275, ¶ 11, 92 P.3d 905, 908 (App.2004). Similarly, we review a trial court's ruling on a motion for a new trial for an abuse of discretion. State v. Neal, 143 Ariz. 93, 97, 692 P.2d 272, 276 (1984). Such motions “ ‘are disfavored and should be granted with great caution.’ ” State v. Spears, 184 Ariz. 277, 287, 908 P.2d 1062, 1072 (1996), quoting State v. Rankovich, 159 Ariz. 116, 121, 765 P.2d 518, 523 (1988).

A. Denial of Lesser–Included Jury Instructions

¶ 7 Larin contends the trial court erred by refusing to instruct the jury on second-degree burglary as a lesser-included offense of first-degree burglary. ¹ The court denied Larin's request for the instruction, stating that “given ... the defense ... of mere presence, [and] ... given the state of the evidence presented [at] trial,” Larin was not entitled to a lesser-included instruction.

¶ 8 Rule 23.3, Ariz. R.Crim. P., requires the trial court to instruct the jury on “all offenses necessarily included in the offense charged.” “Although the terms are often used interchangeably, a ‘lesser included’ offense is not always a ‘necessarily included’ offense for purposes of Rule 23.3.” State v. Wall, 212 Ariz. 1, ¶ 14, 126 P.3d 148, 150 (2006). “[I]f the facts of the case as presented at trial are such that a jury could reasonably find that only the elements of a lesser offense have been proved, the defendant is entitled to have the judge instruct the jury on the lesser-included offense.” Id. We defer to the trial court's assessment of the evidence. Id. ¶ 23.

¶ 9 Here, the indictment charged Larin with first-degree burglary of a residential structure, which requires proof that the defendant or an accomplice “enter[ed] or remain[ed] unlawfully in or on a residential structure with the intent to commit any theft or any felony therein,” A.R.S. § 13–1507(A), and “knowingly possesse[d] ... a deadly weapon ... in the course of committing any theft or any felony,” A.R.S. § 13–1508(A). The element that distinguishes first-degree burglary from the lesser-included offense of second-degree burglary is the knowing possession of a weapon while committing a theft or felony inside the residence.

¶ 10 Citing Wall, Larin claims that, despite his all-or-nothing defense of mere presence, there was sufficient evidence to support the second-degree burglary instruction. He asserts “there [was] a distinct possibility that he would have been found guilty of [second-degree burglary]” because the jury “did not believe [he] had a weapon.” Larin asserts the jury acquitted him of “any charges pursuant to having a gun” and argues the jury questions submitted during deliberations demonstrated the jurors had difficulty determining “who possessed weapons found in the home.” Referring to their trial testimony, Larin maintains that “[A.V.] ... did not believe [Larin] had a weapon” and S.B. testified that “she only saw two men armed with weapons in the home.” Larin argues further that he never was identified as having been armed with a weapon.

¶ 11 First, contrary to Larin's argument, the jury found him guilty of armed robbery, clearly an offense “pursuant to [him] having a gun.” Second, Larin misstates some of A.V.'s testimony and largely ignores other evidence demonstrating he did have a gun. Although A.V. testified he could not “really remember if all three had guns initially,” he said he did “know that during ... the course of the robbery, all three had pointed a gun at [him] at some point in time.” A.V. believed the three suspects “at least shar[ed] one of the guns.” S.B. testified she saw “two gentlemen in the hallway with guns pointed at [her].” And, finally, J.W. testified all three suspects possessed guns. Additionally, even assuming Larin did not possess a weapon, the outcome would not have been different because the jury was instructed on accomplice liability. SeeA.R.S. §§ 13–303(A), 13–1508(A). At trial, Larin did not dispute that Rada and Torre had possessed guns and committed the crimes.

¶ 12 Larin's defense of mere presence, in essence an “all-or-nothing defense,” does not affect our analysis but simply demonstrates that there was “ ‘little evidence on the record to support an instruction on’ ” second-degree burglary. Wall, 212 Ariz. 1, ¶ 29, 126 P.3d at 153,quoting State v. Caldera, 141 Ariz. 634, 637, 688 P.2d 642, 645 (1984). Here, Larin does not dispute that the crimes were committed; he simply maintains he was merely present and did not participate in their commission. But the evidence established that all three men participated in the crimes in some manner—by holding the victims at gunpoint or by searching for and collecting personal property in the house. Consequently, no rational juror could conclude Larin had committed only the lesser offense of second-degree burglary. Seeid. ¶ 18. “It is not enough that, as a theoretical matter, the jury might simply disbelieve the state's evidence on one element of the crime because this would require instructions on all offenses theoretically included in every charged offense.” Id. (internal citations omitted). Therefore, Larin was either guilty of the crimes as charged or he was innocent. Seeid. ¶ 29. And, because the evidence did not support the lesser-included instruction for second-degree burglary, see id, the...