State v. Rhymes

• Decision Date: 11 February 1971
• Docket Number: No. 2108,2108
• Citation: State v. Rhymes, 480 P.2d 662, 107 Ariz. 12 (Ariz. 1971)
• Parties: The STATE of Arizona, Appellee, v. Jimmy Wayne RHYMES, Appellant.
• Court: Arizona Supreme Court

Page 662

480 P.2d 662

107 Ariz. 12

The STATE of Arizona, Appellee, v. Jimmy Wayne RHYMES, Appellant.

No. 2108.

Supreme Court of Arizona, In Division.

Feb. 11, 1971.

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

Machmer, Lehman & Cantor, by Lawrence C. Cantor, Phoenix, for appellant.

UDALL, Justice:

Defendant, Jimmy Wayne Rhymes, and his alleged accomplice, Ernest Robertson, were arrested shortly after a Glendale, Arizona Circle K grocery store had been robbed of over $570.00. In their possession police found the major portion of the stolen money. Defendant pleaded not guilty and the case proceeded to trial. At the close of the state's case defendant moved for a directed verdict of acquittal on both counts: the trial court granting his motion as to the charge of assault with a deadly weapon but denying as to the charge of armed robbery. Defense counsel thereupon proceeded to call several character witnesses but defendant, himself, did not testify. The case went to the jury and defendant was convicted. The court ordered that the imposition of sentence be suspended and placed the defendant on probation for a period of five years. Defendant now appeals to this Court.

On appeal defendant has presented basically four arguments: (1) there was insufficient evidence to allow this case to go to the jury; (2) the trial court's grant of defendant's motion for directed verdict of acquittal on the assault with a deadly weapon charge necessitated that his motion also be granted as to the charge of robbery; (3) the trial court erroneously refused to charge to jury as to his requested Instructions #1, #2, #3, and #5; and (4) the trial court's instruction to the jury that defendant's unexplained possession of recently stolen property creates an inference of guilt was arbitrary and unreasonable; and constituted a comment by the court on his failure to testify in violation of his constitutional rights.

Defendant's first argument is that there was insufficient evidence to allow the case to go to the jury and, therefore, his motion for directed verdict of acquittal should have been granted as to the robbery charge as well. Having reviewed the record we find that the state has tendered substantial evidence in support of defendant's conviction for robbery: (1) most of the stolen money was recovered from under the driver's seat of the car which defendant was driving; (2) the defendant was arrested in the company of Ernest Robertson, who had become a prime suspect in the robbery. Robertson's wallet and a small money bag, taken from the Circle K store during the robbery, were found at the exact location where two suspects had been unsuccessfully chased by police.

Where there is substantial evidence defendant committed the offense with which he is charged the trial court has no duty to direct an acquittal. State v. Dessureault, 104 Ariz. 380 at 387, 453 P.2d 951 at 958 (1969); State v. Acosta, 101 Ariz. 127, 416 P.2d 560 (1966); State v. Silvas, 91 Ariz. 386, 372 P.2d 718 (1962). Substantial evidence has been defined by this Court to mean:

'* * * more than a scintilla and is such proof as a reasonable mind would employ to support the conclusion reached. Henzel v. Cameron, 228 Or. 452, 365 P.2d 498, 503. It is of a character which would convince an unprejudiced thinking mind of the truth of the fact to which the evidence is directed. Grange v. Finlay, 58 Wash.2d 528, 364 P.2d 234, 235. If reasonable men may fairly differ as to whether certain evidence establishes a fact in issue then such evidence must be considered as substantial. Smith v. Schumacker, 30 Cal.App.2d 251, 85 P.2d 967, 972; Davis v. Hartley, 69 N.M. 91, 364 P.2d 349, 351.' State v. Bearden, 99 Ariz. 1 at 4, 405 P.2d 885 at 886 (1965).

In reviewing the trial court's denial of a motion for directed verdict, this Court must view the facts most strongly in favor of upholding the jury's verdict; and in reviewing the sufficiency of the evidence supporting that verdict we must view the evidence in the light most favorable to the state. State v. Harvill, 106 Ariz. 386, 476 P.2d 841 (1970); State v. French, 104 Ariz. 359, 453 P.2d 505 (1969); State v. Norgard, 103 Ariz. 381, 442 P.2d 544 (1968); State v. Acosta, supra; State v. Mangrum, 98 Ariz. 279, 403 P.2d 925 (1965). For these reasons we find this argument to be without merit.

In defendant's second argument he claims that since he was not guilty of assault with a deadly weapon then it follows as a matter of law he could not be guilty of robbery. We disagree. In State v. Enriquez, 104 Ariz. 16, 448 P.2d 72 (1968), we upheld the conviction of that defendant on charges of both robbery and assault with a deadly weapon. His first claim of error was that he was being punished twice for the same act in violation of A.R.S. § 13--1641. ¹ We quickly disposed of this erroneous contention and, in affirming his conviction on both counts, stated:

'Robbery, A.R.S. § 13--641, and assault with a deadly weapon, A.R.S. § 13--249, differ significantly in their components in that robbery does not require the use of a deadly weapon. The fear or force element in the crime of robbery may be supplied by any form of conduct on the part of the wrongdoer which is reasonably calculated to put the victim in fear and cause him to part with his property for that reason. State v. Stephens, 66 Ariz. 219, 186 P.2d 346 (1947). Thus, by electing to use a gun as his instrument of fear a robber commits the additional crime of assault with a deadly weapon.' State v. Enriquez, supra, 104 Ariz. at 17, 448 P.2d at 73. See also State v. Mays, 105 Ariz. 47, 459 P.2d 307 (1969).

The assault with a deadly weapon was not an essential element of the robbery; nor vice versa. Defendant could have committed the assault with a deadly weapon without committing a robbery and, conversely, he could have committed the robbery without committing an assault with a deadly weapon. Testimony introduced at defendant's trial unequivocally shows that: (1) money was taken; (2) at gunpoint from the store clerk. Two separate and distinct crimes were charged and the dismissal of one charge by the trial court would not necessitate a dismissal of the other.

Defendant's third argument is based on the trial court's refusal to give his requested Instructions #1, #2, #3 and #5. These will be considered in the order submitted.

Requested Instruction #1 was justifiably rejected by the trial court: it is not a correct statement of the law; nor does it fit the facts of this case. This instruction is, in a sense, representative of the other three: defendant cites no authority in support of his instructions.

Defendant's Instruction #2 was given substantially as requested; except for one sentence dealing with circumstantial evidence. In essence the omitted sentence would have had the court instruct the jury that it is not permitted to find defendant guilty where the state's case is based 'chiefly or entirely on circumstantial evidence.' Since time immemorial circumstantial evidence has been held competent in criminal cases and convictions based solely thereon have been sustained in our courts. In State v. Harvill, 106 Ariz. 386, 476 P.2d 841 (1970), we held there is no difference between the probative value of direct or circumstantial evidence. The trial court committed no error in rejecting the disputed portion of Instruction #2.

Requested Instruction #3 sought to instruct the jury that one who aids and abets another in a crime without knowing that a crime was being committed cannot be found guilty. While we agree with defendant that he must have had knowledge that a crime was being committed, the trial court's refusal to give his requested instruction was not error since the court had adequately instructed the jury as to the intent and knowledge required for conviction. It is not error to refuse a requested instruction, although it states a correct principle of law, if it is properly and sufficiently covered by other instructions. State v. Stinson, 105 Ariz. 174, 461 P.2d 472 (1969); State v. Michael, 103 Ariz. 46, 436 P.2d 595 (1968).

Requested Instruction #5 is legally unsound and, in addition, has no application to any evidence introduced in this case. We, therefore, find it to be spurious and devoid of any merit whatsoever. Furthermore, under this instruction the jury would be precluded from returning a verdict of guilty if they disbelieved any fact in the state's case which it sought to prove. Such instruction would be misleading because some of the facts which the state seeks to prove may be of little or no consequence and it may not matter whether the jury believes it or not; while others may be vital for conviction. The law is that the state must prove defendant guilty beyond a reasonable doubt and not that it must prove beyond a reasonable doubt each and every fact, whether it be trivial or essential.

Defendant's fourth and final argument is that the trial court erred in giving the following instruction, over his objection:

'You are instructed, ladies and gentlemen of the jury, that the actual unexplained possession of recently stolen property is a fact from which the possessor's guilt may be inferred if you further find that an explanation of such possession is inherently unlikely.

'For the defendant to be in possession of property, it must be shown: 1. That the defendant knowingly had the property. 2. That the defendant had the property under his dominion and control.'

He claims this instruction is arbitrary, unreasonable, and constitutes an unconstitutional infringement of his Fifth and Fourteenth Amendment rights. He refers us to Johnson v. Bennett, 393 U.S. 253, 89 S.Ct. 436, 21 L.Ed.2d 415 (1968), as authority for the proposition that such an instruction should not have been given since 'state courts cannot place any burden on the defendant to prove a defense.' Actually, after the United States Supreme Court had granted...