State v. Schafer
| Decision Date | 06 November 2015 |
| Docket Number | No. 2 CA-CR 2014-0448,2 CA-CR 2014-0448 |
| Parties | THE STATE OF ARIZONA, Appellee, v. MICHAEL LEE SCHAFER JR., Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
The Honorable Jane L. Eikleberry, Judge
AFFIRMED
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee
The Law Offices of Stephanie K. Bond, P.C., Tucson
By Stephanie K. Bond
Counsel for Appellant
Presiding Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Kelly1 concurred.
¶1 After a jury trial, Michael Schafer Jr. was convicted of conspiracy, second-degree burglary, aggravated robbery, and aggravated assault. The trial court sentenced him to concurrent, presumptive prison terms, the longest of which are 11.25 years. On appeal, Schafer challenges several of the court's jury instructions. He also contends that the charges for conspiracy and aggravated assault were duplicitous, potentially resulting in a non-unanimous jury verdict. Lastly, he argues there was insufficient evidence to support his convictions. For the reasons stated below, we affirm.
¶2 We view the facts in the light most favorable to sustaining Schafer's convictions. See State v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32 (App. 2013). In June 2013, after dating for eight years, Schafer and J.W. ended their relationship. J.W. tried to arrange a meeting to give Schafer his belongings, including a basket of unwashed clothes and a box of NASCAR cards, which he had left at her house. Instead, Schafer approached Shannon Adkins and asked her to "go collect [his belongings]." He also said he wanted J.W.'s cell phone because "she kept calling him and wouldn't stop" and he wanted Adkins to "whip [J.W.'s] ass." Schafer offered Adkins $150: $50 for his belongings, $50 for the cell phone, and $50 for the "ass whipping." After Schafer showed Adkins a photo of J.W., Adkins recognized J.W. from when they used to live in thesame housing complex. Adkins agreed to Schafer's plan and solicited the assistance of Yvonne Lizama.
¶3 At approximately 1:00 p.m. on June 15, Adkins and Lizama knocked on J.W.'s door. Recognizing Adkins, J.W. opened the door, and Adkins asked, "Hey, do you want to get high?" After J.W. refused, Adkins punched her in the eye and pushed her into the house. The two struggled, and Adkins pinned J.W. to the ground and continued to hit her in the head. Meanwhile, Lizama searched for Schafer's belongings. Lizama asked J.W. for "a wicker basket and dirty clothes," and, after realizing that she wanted Schafer's belongings, J.W. told her where to find the clothes and NASCAR cards. Lizama grabbed the items, as well as J.W.'s purse, which contained her cell phone, car keys, credit cards, and blank checks.
¶4 Adkins and Lizama later met up with Schafer and gave him the clothes, NASCAR cards, and cell phone in exchange for $150, which the two women divided equally. Adkins kept the other items from J.W.'s purse, and, later that day, she used J.W.'s credit cards and forged checks to make purchases. A few days later, an acquaintance of Adkins used J.W.'s car keys to steal her car from her house.
¶5 J.W. reported the incident to the Tucson Police Department. During a subsequent interview with investigating officers, Schafer admitted saying "out loud" to a group of people that he would "pay somebody to go down there and . . . take care of this." He said J.W. "had [him] so upset that [he] just . . . wan[ted to] be done with her." Schafer also acknowledged paying Adkins and Lizama $150 when they gave him his clothes and NASCAR cards.
¶6 A grand jury indicted Schafer, Adkins, and Lizama with one count each of: conspiracy to commit burglary in the second degree and/or aggravated robbery and/or aggravated assault; second-degree burglary; aggravated robbery; and aggravated assault after entering a private home. In exchange for testifying atSchafer's trial, Adkins pled guilty to aggravated robbery.2 A jury found Schafer guilty as charged, and the trial court sentenced him as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
¶7 Schafer contends the trial court "failed to properly and completely instruct the jury." He challenges the conspiracy, second-degree burglary, and aggravated assault instructions on several grounds. He concedes that he failed to object to the jury instructions below. Accordingly, he has forfeited review for all but fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005); see also Ariz. R. Crim. P. 21.3(c) (). Under this standard, a defendant must show: (1) error exists, (2) the error is fundamental, and (3) the error caused him or her prejudice. Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607. "To prove prejudice, [a defendant] must show that a reasonable, properly instructed jury 'could have reached a different result.'" State v. Dickinson, 233 Ariz. 527, ¶ 13, 314 P.3d 1282, 1286 (App. 2013), quoting State v. James, 231 Ariz. 490, ¶ 15, 297 P.3d 182, 186 (App. 2013). A defendant cannot rely on speculation to meet this burden. Id.
¶8 "On appeal, we do not review a single sentence of jury instructions out of context." State v. Rutledge, 197 Ariz. 389, ¶ 15, 4 P.3d 444, 448 (App. 2000). Rather, "we read the jury instructions as a whole to ensure that the jury receives the information it needs to arrive at a legally correct decision." State ex rel. Thomas v. Granville, 211 Ariz. 468, ¶ 8, 123 P.3d 662, 665 (2005). In doing so, we may also consider the closing arguments. State v. Tarr, 235 Ariz. 288, ¶ 14, 331 P.3d 423, 428 (App. 2014). Jury instructions "need not be faultless." State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996).
¶9 In this case, the jury instructions for conspiracy included the following:
The crime of conspiracy to commit burglary in the second degree, and/or aggravated robbery, and/or aggravated assault requires proof: One, the defendant agreed with one or more persons that one of them or another person would engage in certain conduct; and, two, the defendant intended to promote or assist in the commission of such conduct; and, three, the intended conduct would constitute a crime; and, four, an overt act was committed in furtherance of such conduct.
¶10 Schafer first argues these instructions "omitted an essential element, to wit: that the defendant knew that such conduct was a crime." In support of his argument, Schafer cites the Revised Arizona Jury Instructions (RAJI), which recommend the following language as the third element of the offense: "The intended conduct would constitute the crime charged, and the defendant knew that such conduct was a crime." State Bar of Arizona, Revised Arizona Jury Instructions (Criminal) 10.031 (2012) ("RAJI (Criminal)").
¶11 However, the RAJI are not mandatory. See State v. Logan, 200 Ariz. 564, ¶ 12, 30 P.3d 631, 633 (2001). And, the instructions as a whole informed the jury that Schafer needed to know the conduct he conspired to commit constituted a crime. See Granville, 211 Ariz. 468, ¶ 8, 123 P.3d at 665. The jury was also instructed as follows:
We therefore cannot say the trial court erred, let alone fundamentally erred, in omitting that portion of RAJI (Criminal) 10.031. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.
¶12 Schafer next asserts the trial court failed to instruct the jury that the charge of conspiracy to commit second-degree burglary and/or aggravated robbery and/or aggravated assault is independent of the charges for second-degree burglary, aggravated robbery, and aggravated assault. He maintains the court should have instructed the jury to consider the evidence separately for each charge pursuant to RAJI (Criminal) 10.0313.
¶13 Although the trial court did not specifically give RAJI (Criminal) 10.0313, it gave other instructions informing the jury that the four charges against Schafer were independent of each other. See Granville, 211 Ariz. 468, ¶ 8, 123 P.3d at 665; see also State v. Tyler, 149 Ariz. 312, 316, 718 P.2d 214, 218 (App. 1986) (). The court's instructions also included:
Each count charges a separate and distinct offense. You must decide each count separately on the evidence with the law applicable to it uninfluenced by your decision as to any other count. A defendant may be convicted or acquitted on any or all of the offenses charged. Yourfindings as to each count must be stated in a separate verdict.
The court therefore did not err by omitting RAJI (Criminal) 10.0313. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at 607.
¶14 Schafer next contends the trial court failed to provide a limiting instruction on the scope of the conspiracy. He maintains the court should have given the following instruction:
You have heard evidence that...
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