State v. Milton

• Decision Date: 05 October 1971
• Docket Number: No. 1,CA-CR,1
• Citation: 15 Ariz.App. 392,489 P.2d 55
• Parties: STATE of Arizona, Appellee, v. Grace MILTON, Appellant. 302.
• Court: Arizona Court of Appeals

Page 55

489 P.2d 55

15 Ariz.App. 392

STATE of Arizona, Appellee, v. Grace MILTON, Appellant.

No. 1 CA-CR 302.

Court of Appeals of Arizona, Division 1, Department A.

Oct. 5, 1971.

Gary K. Nelson, Atty. Gen., by Albert M. County, Asst. Atty. Gen., for appellee.

Thomas A. Thinnes, and Donald W. Lindholm, Phoenix, for appellant.

STEVENS, Presiding Judge.

On 13 March 1970 an information was filed against the appellant, ¹ hereinafter referred to as the defendant, which charged her with the crime of theft from the person, a felony, in violation of A.R.S. §§ 13--661 and 13--663, as amended 1968, §§ 13--138, 13--139 and 13--140. The defendant was tried before a jury and found guilty. On 16 June 1970 she was adjudged guilty and was sentenced to a term of not less than one year nor more than two years in the Arizona State Prison. This appeal followed.

Defendant has raised two issues for our consideration: First: Was it reversible error to fail to direct a verdict of acquittal when the only evidence presented by the State is circumstantial and points to innocence as well as guilt, and Second: Did the evidence presented at trial support the flight instruction which was given? This Court is of the opinion that both questions presented must be answered in the negative.

CIRCUMSTANTIAL EVIDENCE

With regard to the first issue, the defendant urges that there is a distinction between circumstantial and direct evidence and the effect each should have on the trial court's determination to allow the case to go to the jury. The argument is to the effect that circumstantial evidence alone will not permit the trial court to deny a motion for a directed verdict and thereafter submit a case to the jury. In State v. Harvill, 106 Ariz. 386, 391, 476 P.2d 841, 846 (1970), our Supreme Court held:

'It is the opinion of this court that the probative value of direct and circumstantial evidence are intrinsically similar; therefore, there is no logically sound reason for drawing a distinction as to the weight to be assigned each. We expressly overrule that portion of State v. Reynolds, supra, and any other decision of the court which is contra to our holding in the instant case. * * * A proper instruction on 'reasonable doubt' as applied to all kinds of evidence gives the jury an appropriate standard upon which to make a determination of guilt or innocence; to instruct further is to invite the confusion of semantics.

'It is necessary, therefore, for us to expressly overrule the many decisions of this court which have held that it is fundamental error for the trial court to fail to instruct on the probative force of circumstantial evidence if the prosecution must rely exclusively thereon for a conviction.'

A motion for a directed verdict challenges only the sufficiency of the evidence, State v. Acosta, 101 Ariz. 127, 416 P.2d 560 (1966); the trial court is under no duty to direct a verdict of acquittal if there is substantial evidence that a defendant committed the offense charged, State v. Dessureault, 104 Ariz. 380, 453 P.2d 951 (1969); and that the highest court of this State has held that the probative values of direct and circumstantial evidence are intrinsically similar.

After a review of the record and the application of the foregoing principles, it is this Court's opinion that no error was committed when the trial court denied the defendant's motion for a directed verdict because of a lack of direct evidence.

THE FLIGHT INSTRUCTION

Defendant next contends that the evidence was not sufficient to warrant the giving of an instruction on flight. The trial court instructed the jury that:

'Flight of the accused after a crime may be (sic) committed does not create a presumption of guilt. It is, however, a circumstance which may tend to prove consciousness of guilt. It should be considered and weighed by you in connection with all the other evidence.'

In State v. Rodgers, 103 Ariz. 393, 442 P.2d 840 (1969), our Supreme Court quoted with approval the following test from State v. Owen, 94 Ariz. 404, 411, 385 P.2d 700, 704 (1963), reversed on other grounds, 378 U.S. 574, 84 S.Ct. 1932, 12 L.Ed.2d 1041, for determining whether the evidence...