State v. Sarullo
Decision Date | 13 November 2008 |
Docket Number | No. 2 CA-CR 2007-0065.,2 CA-CR 2007-0065. |
Citation | 219 Ariz. 431,199 P.3d 686 |
Parties | The STATE of Arizona, Appellee, v. Frank Joseph SARULLO, Appellant. |
Court | Arizona Court of Appeals |
Terry Goddard, Arizona Attorney General By Kent E. Cattani and Laura P. Chiasson, Tucson, Attorneys for Appellee.
Law Office of Richard Luff, PLLC By Richard R. Luff, and The Diodati Law Firm, P.C. By Andrew D. Diodati, Tucson, Attorneys for Appellant.
¶ 1 After a jury trial, Frank Sarullo was convicted of two counts of first-degree burglary and one count each of aggravated assault and theft. The trial court sentenced him to concurrent, presumptive prison terms, the longest of which was 10.5 years. On appeal, Sarullo raises several issues that he contends require the reversal of his convictions and sentences or entitle him to a new trial. For the reasons below, we affirm.
¶ 2 We view the evidence in the light most favorable to sustaining the convictions. See State v. Mangum, 214 Ariz. 165, ¶ 3, 150 P.3d 252, 253 (App.2007). In 2001, Sarullo and S. began a romantic relationship. At some point, S. gave Sarullo a key to her house, where she lived with her thirteen-year-old daughter, L. In May 2005, S. told Sarullo she was ending their relationship. Sarullo became despondent and told S. he was considering suicide and "possibly taking [her] with him." Around this time, S. asked Sarullo to return the key to her house. He did so, but he first made a copy of the key.
¶ 3 On August 25, 2005, S. awoke at approximately 3:00 a.m. and saw Sarullo standing in the doorway of her bedroom. He turned on the overhead light, walked toward her, pointed a gun at her, and demanded she tell him why she had "treated [him] so badly." S. pleaded, "[N]o, ... don't do this"; Sarullo said he had not decided whether he would "just kill himself" or would "take [her] with him." He then told S. he wanted to discuss their relationship and wanted to "work things out." Afraid for her life, S. promised she would go to relationship counseling with him and, if he put down the gun, she would not call the police. Sarullo laid the gun on S.'s bed and left the house. S. saw that the gun was hers — she had stored it on the top shelf of her linen closet — and that it was loaded. She did not keep the gun loaded, however, or have any ammunition in her home.
¶ 4 S. dialed 911 and Tucson police officer Brian Moore responded to the scene. He interviewed S. and, later that morning, he interviewed Sarullo at the police station. Sarullo told Moore he had entered S.'s home on Wednesday, August 24, using the key he had copied, and he had taken S.'s gun and purchased ammunition at a store. He admitted returning to her home the next morning, August 25, and pointing the revolver "in her general direction." He conceded S. had been frightened. He also told Moore he had intended to commit suicide in front of S., stating: "I felt that ... it would have a more psychological impact doing it with her gun and have her see it."
¶ 5 In September, Sarullo was charged with the following offenses in a four-count indictment: count one alleged first-degree burglary for the entry into S.'s home that occurred on Wednesday, August 24; count two alleged first-degree burglary for the entry that had occurred on Thursday, August 25; and the remaining counts of aggravated assault and theft of S.'s handgun. After a jury trial, Sarullo was convicted of all charges and sentenced as set forth above. This appeal followed.
¶ 6 Sarullo first argues the state presented insufficient evidence of the corpus delicti for counts one and four, which charged him with the burglary and theft that occurred on August 24. Sarullo did not raise this issue below, and we therefore review only for fundamental error. See State v. Alatorre, 191 Ariz. 208, ¶¶ 12-13, 953 P.2d 1261, 1265 (App.1998). "`Fundamental error is that which goes to the heart of the defendant's case or takes from him a right essential to his defense.'" See State v. Phillips, 202 Ariz. 427, ¶ 48, 46 P.3d 1048, 1058 (2002), quoting State v. Valdez, 160 Ariz. 9, 13-14, 770 P.2d 313, 317-18 (1989). Such error must also be prejudicial. State v. Henderson, 210 Ariz. 561, ¶ 26, 115 P.3d 601, 608 (2005).
¶ 7 "A defendant may not be convicted of a crime based on an uncorroborated confession without independent proof of the corpus delicti, or the `body of the crime.'" State v. Morgan, 204 Ariz. 166, ¶ 15, 61 P.3d 460, 464 (App.2002), quoting State v. Gillies, 135 Ariz. 500, 506, 662 P.2d 1007, 1013 (1983). The corpus delicti rule requires that, before a defendant's statements may be admitted as evidence of a crime, the state must provide independent proof that a crime was committed and that someone was responsible for the offense. See State v. Rubiano, 214 Ariz. 184, ¶ 6, 150 P.3d 271, 272-73 (App.2007). The purpose of the rule is to prevent a person from being convicted based solely on a false confession that may have been the result of the person's mental instability or obtained through improper police procedures. See id. ¶ 7. "Only a reasonable inference of the corpus delicti need exist before a confession may be considered." Gillies, 135 Ariz. at 506, 662 P.2d at 1013.
¶ 8 Sarullo contends his statements to Moore were the only evidence of the burglary and theft on August 24. The state responds that Sarullo's admissions to those offenses were corroborated by S.'s testimony that the gun Sarullo possessed on August 25 was loaded and that she did not keep ammunition in the house. The state argues, "[f]rom this evidence, a reasonable inference could be made that [Sarullo] entered [S.'s] house at some point prior to August 25, 2005, took the unloaded gun for the purpose of purchasing ammunition, and returned to [S.'s] home on August 25, 2005." Sarullo counters that the only reasonable inference that may be drawn from S.'s testimony is that Sarullo obtained and loaded S.'s gun on August 25, just before entering her bedroom.
¶ 9 Although factually dissimilar from this case, we find our decision in State v. Morgan, 204 Ariz. 166, 61 P.3d 460 (App.2002), instructive on this issue. There, the defendant confessed to police that he had engaged in various sexual acts with a minor, including oral sexual contact. Id. ¶ 6. He was then charged with, inter alia, sexual conduct with a minor by forcing her to have oral sexual contact with him. Id. ¶ 7. During the trial, the minor did not testify about any oral sexual contact she had had with the defendant. Id. ¶ 23. Her testimony, however, as well as that of another witness and physical evidence collected from the minor's body, corroborated the defendant's admissions to other types of sexual contact he had with the victim. Id. In finding there was sufficient evidence of the corpus delicti, independent of the defendants' statement, to support the charge of oral sexual contact, we noted that when a confessed incident was "closely allied in time and circumstance" to an independently corroborated offense, "the trustworthiness of [the] confession as a whole was sufficiently established." Id. ¶ 19, quoting Drumbarger v. State, 716 P.2d 6, 12 (Alaska Ct.App.1986) (alteration in Morgan). We then concluded:
Independent evidence established the commission of several sexual crimes closely related to the [oral] sexual conduct. Although, absent [the defendant's] confession, the evidence did not show that [the minor] and [the defendant] had any oral sexual contact, the confession was sufficiently corroborated to eliminate any concern that it could be untrue and, thus, supported a `reasonable inference' that the offense had occurred.
Id. ¶ 23; see also Alatorre, 191 Ariz. 208, ¶ 12, 953 P.2d at 1261, 1265 ( ).
¶ 10 Here, Sarullo told Moore he had entered S.'s home on August 24, taken her gun, and entered again on August 25. Although there was no evidence, apart from Sarullo's confession, of the August 24 burglary and theft, there was uncontradicted evidence of the burglary and aggravated assault on August 25. Thus, as in Morgan, there was independent evidence to establish the commission of crimes "closely related" to the August 24 burglary and theft. See id. Moreover, Sarullo told S. on August 25 that he had entered her home earlier and taken her gun, and, as the state points out, S. did not keep the gun loaded or have ammunition in her home but the gun was loaded on August 25. From these facts, there is little risk Sarullo's convictions on counts one and four were based on a false confession. Accordingly, we find his admission to the August 24 burglary and theft sufficiently corroborated and that the evidence supported a reasonable inference that he committed those offenses.1
¶ 11 Sarullo next argues there was insufficient evidence to support counts one and four because there was no evidence he intended to permanently deprive S. of her revolver. He claims "[t]he undisputed evidence shows [he] entered the alleged victim's home on 8/24/05 intending to take her revolver, not to permanently deprive her of it, but to later commit suicide in front of her with her gun." In support of his argument, Sarullo notes that during his interview with Moore he stated: "[W]ithin the past few weeks, I seriously contemplated committing suicide, and I felt that ... it would have a more psychological impact doing it with her gun and have her see it."
¶ 12 We agree with Sarullo that counts one and four, based on his theft of S.'s gun, required the state to prove he intended to permanently deprive her of her property. See A.R.S. §§ 13-1507, 13-1508 ( ); § 13-1802(A)(1) (...
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