State v. Mitchell

Decision Date30 December 1970
Docket NumberNo. 2133,2133
Citation478 P.2d 517,106 Ariz. 492
PartiesSTATE of Arizona, Appellee, v. Thomas Armendarez MITCHELL, Jr., Appellant.
CourtArizona Supreme Court

Gary K. Nelson, Atty. Gen. by Carl Waag, Asst. Atty. Gen., Phoenix, for appellee.

S. Jeffrey Minker, Tucson, for appellant.

McFARLAND, Justice:

Thomas Armendarez Mitchell, Jr., hereinafter referred to as defendant, was tried and convicted on Count I--attempted kidnapping 'while armed with a gun' and Count II--assault with a 'deadly weapon or instrument, to wit: a gun'--and was sentenced to a term of not less than ten years nor more than fifteen years in the Arizona State Prison, both counts to run concurrently. From his conviction and sentence he appeals.

Defendant entered a plea of not guilty and not guilty by reason of insanity to both counts. It was alleged that the acts were committed on November 14, 1968, upon Rebecca Mullinax in violation of A.R.S. § 13--108, § 13--110, § 13--491, as amended, and § 13--249, as amended. Defendant made a motion for a directed verdict of acquittal on each count which was denied.

On November 14, 1968, Rebecca Mullinax was returning to Alice Vail Junior High School. The defendant walked up behind her as she approached the school and took her by the arm. He had a gun in one hand. He told her not to scream or he would shoot her. He asked her to go to his truck, and she told him if he did not release her she would scream. He did not release her, so she screamed, at which time defendant released her, and she ran into the school. The police were notified, and, upon arrival, found a clip-type gun and a clip near the defendant's truck. Defendant told the officers he did not know how to get a bullet from the clip into the chamber of the gun.

Defendant first contends that the court erred in not granting his motion for directed verdict for acquittal on Count I of the information. He states in his brief:

'* * * Kidnapping is defined as forcibly stealing, taking or arresting a person and carrying them away. An attempt to commit the crime of kidnapping is the doing of an overt act toward the commission of the substantive crime which fails because of some intervening cause.'

He contends there was no evidence that defendant intended to kidnap the girl, and, in support of this contention, quotes the testimony of Rebecca Mullinax:

'Q What did you do after--after this happened?

'A He asked me to come over to his truck because he wanted to ask me some questions.

'Q Did you remember what words he used?

'A No.

'Q He asked you, though, to come over to his truck?

'A Yes.

'Q All right, then what happened?

'A Then I told him I was going to scream if he didn't let go of me and he didn't so I screamed and then he let go of me and went back toward the parking lot and I went into the cafeteria.'

However, she also testified:

'A I was coming across the field and Thomas Mitchell came up to me and took my arm and he had a gun and he said, 'Don't scream or I'll shoot you' and he wanted me to go over to his truck with him and I said, 'no', if he didn't let go of me, I would scream, and so he wouldn't let go so I screamed and ran to the cafeteria where I got Mr. Morris, and then he took me outside the building again where we saw Thomas Mitchell coming toward the building and then Mr. Morris took me back inside and we went to the office.

'Q And when was it that you testified that Mr. Mitchell grabbed you--where did he grab you?

'A Above the elbow on the right arm.

'Q And then did he let go of you?

'A After I screamed he let go of me.

'Q Can you tell us what this gun that he had looked like?

'A It was a dark color, it wasn't a revolver or pistol. It was small.

'Q Could you touch the gun, Becky?

'A Yes. When he was standing by me I grabbed it and then he pulled back so I let go.

'Q Now, at the time the defendant was holding the gun and you were close to him, did you hear anything?

'A Yes, sir, I heard a click.

'Q And at what point did you hear the click?

'A When he had it up in front of my head.

'Q Where did he hold the gun when you originally saw it?

'A Down against his body in the front.

'Q Close to him?

'A Yes.

'Q And then he moved it to up by your head?

'A Uh-huh.

'Q And what did he say at the time he moved it?

'A He said, 'You don't believe me, do you', and then he held it up.

'Q And it was at that time you heard the click?

'A Yes, sir.'

We cannot agree with the contention of defendant that there was not an overt act toward the commission of a 'substantive crime.' The pointing of the gun at Rebecca Mullinax with the threat 'Don't scream or I will shoot you,' coupled with his trying to get her to go to the truck with him, clearly shows his attempt to kidnap her. A.R.S., § 13--491, as amended, provides, in part, as follows:

'A. A person is guilty of a felony who:

'1. Forcibly steals, takes or arrests any person in this state, and carries him into another country, state or county, or into another part of the same county.

'D. * * * by a person armed with a gun * * *'.

The attempt was made by the use of a gun.

Defendant next contends that there were multiple sentences given him, in violation of A.R.S. § 13--1641, which reads as follows:

'An act or omission which is made punishable in different ways by different sections of the laws may be punished under either, but in no event under more than one. An acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.'

We have construed this statute and held that where a single act violates more than one statute, § 13--1641, supra, protects a defendant against double punishment. In State v. Ballez, 102 Ariz. 174, 427 P.2d 125, we held:

'On appeal the defendant contends that his conviction for both robbery and grand theft from the person violates A.R.S. § 13--1641 which provides as follows:

"An act or omission which is made punishable in different ways by different sections of the laws may be punished under either, but in no event under more than one. An acquittal or conviction and sentence under either one bars a prosecution for the same act or omission under any other.'

'This statute coming to us from the California Penal Code § 654, contemplates a situation in which a single act violates more than one statute and protects the offender against double punishment in such instances. * * *'

However, we have since the Ballez case further interpreted § 13--1641, supra, as holding it applicable where the offenses charged have identical components. State v. Green, 98 Ariz. 254, 403 P.2d 809. These interpretations and applications of the rule were succinctly set forth in State v. French, 104 Ariz. 359, 453 P.2d 505, wherein defendant was charged with both robbery and grand theft, in which we said:

'We held in State v. Ballez, 102 Ariz. 174, 427 P.2d 125 (1967), that covictions based on robbery and grand theft from the person violated the foregoing statute when based on a single definite act.

'However, in State v. Green, 98 Ariz. 254, 403 P.2d 809 (1965), we upheld conviction of charges of rape, burglary, unlawful mask and lewd and lascivious acts arising out of the same incident. There the court indicated that where the crimes do not have identical components and their elements are different, they do not fall within the prohibition of A.R.S. § 13--1641. We have also held that a defendant can be convicted and punished for both burglary and grand theft arising out of the same incident. State v. Hutton, 87 Ariz. 176, 349 P.2d 187 (1960).

'The elements constituting robbery and grand theft-auto, are not entirely different, nor may robbery occur without the taking of personal property. We therefore hold that the grand theft-auto conviction and sentence cannot stand. In view of the fact that the sentences imposed are concurrent it is ordered that the judgment of conviction for grand theft-auto, is vacated and the sentence set aside. No further action is required of the trial court.'

The difficulty is in applying the rule which we have set forth to the particular facts in each case as to whether the elements are identical. The practical test is to eliminate the elements in one charge and determine whether the facts left would support the other charge. Applying this test to the cases which have been decided by this Court in the past--for example--in State v. Jacobs, 93 Ariz. 336, 380 P.2d 998, app. dismissed, 375 U.S. 46, 84 S.Ct. 158, 11 L.Ed.2d 108, the defendant was charged with rape and kidnapping. You could eliminate the facts of the kidnapping, and still have the rape, and you could eliminate the rape and still have the kidnapping. We accordingly held:

'Nor do we find merit in the defendant's argument that he is being punished twice for the same act. The crime of kidnapping preceded and was complete before the rape took place. The component elements of the two crimes are distinct and separate. Cf. State v. Hutton, 87 Ariz. 176, 349 P.2d 187 (1960).'

In State v. Hutton, 87 Ariz. 176, 349 P.2d 187, the defendant was charged with burglary and grand theft. The entering into the building with the 'intent to commit grand (theft) or petty theft, or any felony * * *.' constitutes burglary. It is not necessary to prove that he actually committed the theft or the other crimes enumerated. Hence, the actual theft could be eliminated, and the burglary would still stand, and the burglary could be eliminated and theft would still stand. In deciding this question we said:

'* * * Defendant says that this section protects him from double punishment because the burglary and theft were committed in one transaction. We cannot agree. The above statute covers a situation where the same act is punishable in eifferent ways under different sections of the law. Under such a situation, he can be punished for only one offense. Burglary and theft are two separate and distinct acts. To constitute burglary it is not necessary that theft be committed. In this...

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