State v. Sebba

• Decision Date: 24 January 2012
• Docket Number: 1 CA-CR 10-0693,1 CA-CR 10-0687
• Parties: STATE OF ARIZONA, Appellee, v. MICHAEL DAVID SEBBA, Appellant.
• Court: Arizona Court of Appeals

STATE OF ARIZONA, Appellee,

v.MICHAEL DAVID SEBBA, Appellant.

1 CA-CR 10-0687

1 CA-CR 10-0693

COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT D

Dated: January 24, 2012

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED

EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

See Ariz. R. Supreme Court 111(c); ARCAP 28(c);

Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)

Appeal from the Superior Court in Maricopa County

Cause Nos. CR2008-174832-001SE and CR2009-030400-001SE

The Honorable Rosa Mroz, Judge

AFFIRMED

Thomas C. Horne, Attorney General

by Kent E. Cattani, Chief Counsel,

Criminal Appeals/Capital Litigation Section

and Craig W. Soland, Assistant Attorney General

Attorneys for Appellee

Phoenix

Law Offices of Michael P. Denea, PLC

by Michael P. Denea

Attorney for Appellant

Phoenix

PER CURIAM

¶1 Michael David Sebba was convicted of one count of stalking and one count of aggravated harassment, both class fivefelonies, and duly sentenced. On appeal, he argues that: (1) the trial court erred by refusing his requested jury instructions and special verdict form; (2) the court erred by refusing to preclude irrelevant evidence; and (3) there was insufficient evidence to support the verdicts. For the reasons that follow, we find no reversible error and affirm his convictions and sentences.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Sebba was indicted for stalking the victim on December 1, 2008, by engaging in conduct that resulted in the victim fearing for her safety or the safety of her family, in violation of Arizona Revised Statutes ("A.R.S.") section 13-2923(A)(1) (West 2011).¹ Subsequently, he was indicted for aggravated harassment after he communicated with the victim or caused a communication to be made to her in February 2009 despite the fact that he was under an existing injunction against harassment which precluded him from having any communication with the victim, in violation of A.R.S. §§ 13-2921.01(A)(1) and (C) (West 2011) and 13-2921(A)(1) (West 2011). The parties agreed to consolidate the cases for trial.

¶3 At trial, the jury heard that the victim and her family and Sebba and his family lived in the same Tempeneighborhood without problems until 2002.² The families, however, disagreed over the city's plans to install playground equipment in their neighborhood. The relationship between Sebba and the victim deteriorated after the victim testified against Sebba in court, disputing his version of an earlier incident. The victim sought and received an injunction against harassment in 2004.

¶4 The victim and her family subsequently sold their home, moved to another neighborhood, and moved their children to another school to attempt to escape further conflict with Sebba, especially because he had secured an injunction against harassment against the victim's husband. Despite the move, Sebba continued to harass the victim in her new neighborhood and she obtained additional harassment injunctions against him in 2005, 2006, and 2007.

¶5 Sebba, however, did not honor the injunctions and was convicted of violating one in January 2006, and another one in June 2007 after sending a letter to the children's school principal detailing his dispute with the victim's family, including an incident that prompted him to sue the eleven-year-old daughter for allegedly trying to run him over with herbicycle.³ The 2007 injunction expired before the victim served Sebba with the 2008 injunction.

¶6 On December 1, 2008, Sebba went to the building where the victim worked, ostensibly to visit a temporary employment agency. He, however, failed to sign in as a visitor, called for an elevator and when the elevator doors opened, the victim was inside. He stepped into the elevator before the victim could exit. She, however, quickly got out, called her office to lock the business's doors because she was afraid that Sebba was going to hurt her husband or their employees, asked security to search the building for Sebba, and called the police. After Sebba returned to the lobby, he was asked by a security guard to leave the building because of the victim's restraining order. Sebba looked at the victim and her husband over the security guard's shoulder "kind of in a threatening manner," and said, "Oh, I'll be back." Later that day, police served Sebba with the 2008 injunction against harassment, which ordered him to stay away from the victim's workplace, or from contacting her or her family directly or indirectly through third parties.⁴

¶7 Some two and one-half months later, Sebba called a security guard, the site manager, and the property manager at the building where the victim worked. He asked the security guard for the names and numbers of the property managers; asked the site manager if this was the correct number to call to lease space in the building; complained to the property manager about the handling of his December 2008 encounter with the victim and her husband, and indicated he might sue the victim and possibly others. Because the victim had asked that building employees report any contact with Sebba, the site manager and property manager reported their contacts with Sebba to her, and the security manager thought he had informed her of the contact. The property manager, moreover, testified that she would have contacted the victim as a matter of routine, even if no one had suggested it. The victim testified that she believed that Sebba was harassing her through these calls.

¶8 The jury convicted Sebba of stalking and aggravated harassment, and found that he had previously violated at least one injunction against harassment. The jury found that the offenses caused physical, emotional, or financial harm to the victim as an aggravating circumstance, and that Sebba was on pretrial release for the stalking offense at the time he engaged in the aggravated harassment. Sebba was sentenced to an aggravated term of two years for his stalking conviction, to beconsecutively followed by a four-year term for the aggravated harassment conviction. Sebba filed a timely notice of appeal and we have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1) (West 2011), 13-4031 (West 2011), and 13-4033(A)(1) (West 2011).

DISCUSSION

A. Requested Jury Instructions on Third Party Communication

¶9 Sebba first argues that the trial court abused its discretion by refusing to give his requested jury instructions on the aggravated harassment charge because it would support his defense that his calls to building employees did not constitute harassment. "A party is entitled to an instruction on any theory of the case reasonably supported by the evidence." State v. Shumway, 137 Ariz. 585, 588, 672 P.2d 929, 932 (1983) (citations omitted). However, "[w]hen a jury is properly instructed on the applicable law, the trial court is not required to provide additional instructions that do nothing more than reiterate or enlarge the instructions in [the] defendant's language." State v. Salazar, 173 Ariz. 399, 409, 844 P.2d 566, 576 (1992) (citation omitted). Moreover, a court "does not err in refusing to give a jury instruction that is an incorrect statement of the law, does not fit the facts of the particular case, or is adequately covered by the other instructions."State v. Hussain, 189 Ariz. 336, 337, 942 P.2d 1168, 1169 (App. 1997) (citation omitted).

¶10 We review the denial of a jury instruction for abuse of discretion. State v. Wall, 212 Ariz. 1, 3, ¶ 12, 126 P.3d 148, 150 (2006) (citation omitted). We review de novo whether a jury instruction accurately states the law. State v. Johnson, 212 Ariz. 425, 431, ¶ 15, 133 P.3d 735, 741 (2006) (citation omitted). "We will not reverse a conviction based on the trial court's ruling on a jury instruction unless we can reasonably find that the instructions, when taken as a whole, would mislead the jurors." State v. Rutledge, 197 Ariz. 389, 393, ¶ 15, 4 P.3d 444, 448 (App. 2000) (quoting State v. Strayhand, 184 Ariz. 571, 587, 911 P.2d 577, 593 (App. 1995)) (internal quotation marks omitted).

¶11 Sebba argues that the court abused its discretion in refusing to give the following instructions:

The law requires the course of conduct or communication be directed at a specific person. It is not enough if the person learns from a third party about the conduct or communication later or even witnesses it or overhears it when it is made if the conduct or communication is initially directed at a third party.

If you find the conduct or communication has been directed at a third party and not to the complainant, you must find the Defendant not guilty.

and

To find the Defendant guilty, you must find that the Defendant intentionally or knowingly communicated or caused a communication with the complainant by verbal, electronic, mechanical, telegraphic, telephonic or written means in a manner that harasses.

You have heard allegations that the Defendant may have attempted to communicate with the complainants through one or more third parties.

If the communication is with a third party, you must consider whether the Defendant intentionally or knowingly directed that third party to communicate with the complainants on Defendant's behalf. If you find that the communication has been received by a third party, and that the Defendant did not knowingly or intentionally direct the third party to communicate with the complainants on his behalf, by whatever means set forth above, you must find the Defendant not guilty.

¶12 The trial court denied Sebba's requested instructions after finding that the standard aggravated harassment instruction adequately tracked the elements of the crime found in the aggravated harassment statute. As a result, the court instructed the jury as follows:

The crime "Aggravated Harassment" requires proof that the Defendant, with intent to harass or with knowledge that he is harassing another person:

1. Anonymously

...