State v. Tschilar

• Decision Date: 17 July 2001
• Docket Number: No. 1 CA-CR 00-0495.,1 CA-CR 00-0495.
• Parties: STATE of Arizona, Appellee, v. Ronald Keith TSCHILAR, Appellant.
• Court: Arizona Court of Appeals

27 P.3d 331

200 Ariz. 427

STATE of Arizona, Appellee, v. Ronald Keith TSCHILAR, Appellant.

No. -0495.

Court of Appeals of Arizona, Division 1, Department B.

July 17, 2001.

Janet Napolitano, Attorney General, by Paul J. McMurdie, Chief Counsel, Criminal Appeals Section and Consuelo M. Ohanesian, Assistant Attorney General, Phoenix, for Appellee.

Diane S. McCoy, Flagstaff, for Appellant.

OPINION

EHRLICH, Judge

¶ 1 Ronald K. Tschilar appeals his convictions and sentences for multiple counts of kidnapping and aggravated assault. Among the questions he asks is whether the finding that his kidnapping victims were voluntarily released unharmed, a determination resolving whether the offense is a class 2 or a class 4 felony, is a factual decision for the jury according to the rationale of Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000). We answer this question in the negative as we do his other queries.

FACTS¹ AND PROCEDURAL HISTORY

¶ 2 On the evening of March 10, 1999, four teenagers, A.S., M.B., M.C. and C.P.,² were in C.P.'s red Ford pick-up truck, driving in a wooded area behind the Show Low Elks Lodge when they noticed the headlights of a vehicle approaching fast behind them. The vehicle overtook the truck and came to a sudden stop in the road in front of the truck, whereupon C.P. slammed on the truck's brakes.

¶ 3 Tschilar got out of the vehicle, carrying a gun, and stood in front of the truck, pointing the gun at the truck's windshield. He ordered the teenagers to get out of the truck and lie face down on the ground. A.S. got down on her hands and knees; the others lay on the ground. Tschilar, waving the gun at the teenagers, angrily accused them of having stolen property from his trailer. The teenagers denied having any knowledge about a theft. As M.B. began to get up, saying that they had not stolen anything from Tschilar and begging to be released, Tschilar pointed the gun at M.B.'s head, said that the gun was cocked and told him to get back on the ground. A.S. then jumped up, asking Tschilar not to shoot. The gun discharged, and A.S. was wounded in the arm. The other teenagers then pleaded to be released to take A.S. to the hospital. Tschilar agreed and left.

¶ 4 Tschilar was charged and tried on four counts of kidnapping, four counts of aggravated assault based on his use of a deadly weapon, one count of aggravated assault of A.S. for recklessly causing a serious physical injury and one count of aggravated assault of A.S. for causing temporary but substantial physical impairment.³

¶ 5 Tschilar testified that he had been living in a trailer behind the Elks Lodge. Two days before the shooting, while at the lodge, he had noticed a rust-colored Ford pick-up truck being driven in the area near his trailer. When he later returned to the trailer, he had found that some of his possessions had been stolen.

¶ 6 When Tschilar two days later saw in the wooded area behind the lodge what he thought might have been the same truck, he became suspicious. His suspicion grew when the truck increased speed as it continued on the same path as had the truck he had seen before. Tschilar decided to talk to the people in the truck to find out who they were and why they were there.

¶ 7 According to Tschilar, when he pulled in front of the juveniles' truck to cause it to stop, all four teenagers got out of the truck and came toward him, prompting him to get his gun. Tschilar told the jurors that he then pointed the gun in the air and told the teenagers to get on the ground as he tried to "get control" of the situation. When one of the young men would not lie down, Tschilar conceded that he had threatened to cock the gun. He claimed to have then put the gun under his arm and taken out a pen to write the names of the teenagers when the youth who would not lie down "came at" him. He said that this is when he grabbed for the gun and it discharged, hitting A.S. Tschilar insisted that he immediately had agreed to let the teenagers go, even offering to lead them to the hospital but that, when they reached the road to the hospital, the teenagers turned in the opposite direction.

¶ 8 Tschilar was acquitted of the charge of the aggravated assault of A.S. by causing serious physical injury, but he was convicted on the other offenses. For the kidnappings, Tschilar was sentenced to aggravated terms of twelve years with respect to A.S. and M.B. and presumptive terms of 10.5 years with respect to C.P. and M.C. For the aggravated assaults involving the use of a deadly weapon, the trial court sentenced Tschilar to aggravated terms of ten years with respect to A.S. and M.B. and to presumptive terms of 7.5 years with respect to C.P. and M.C. The court also sentenced Tschilar to the presumptive term of six years on the charge of aggravated assault by causing temporary and substantial physical impairment of A.S. The sentences were ordered to be served concurrently.

¶ 9 Tschilar appealed, raising the following issues:

1. Whether the Apprendi case requires that the determination of kidnapping as a class 2 or a class 4 felony be a jury question dependent as it is on a factual resolution of the question whether he voluntarily released the victims unharmed;

2. Whether the trial court erred in failing to find that the teenagers were safely released for the purpose of reducing the charges of kidnapping from class 2 to class 4 felonies;

3. Whether the trial court was entitled to consider the number of victims as an aggravating factor in determining Tschilar's sentence;

4. Whether Tschilar was entitled to a jury instruction regarding the law of citizen's arrest; and

5. Whether the trial court should have sua sponte instructed the jury on the crime of unlawful imprisonment as a lesser-included offense of kidnapping.

DISCUSSION

A. Effect of Apprendi

¶ 10 The kidnapping statute, ARIZ.REV.STAT. ("A.R.S.") section 13-1304 (2001), provides:

A. A person commits kidnapping by knowingly restraining another person with the intent to:

* * *

3. Inflict death, physical injury or a sexual offense on the victim, or to otherwise aid in the commission of a felony; or

4. Place the victim or a third person in reasonable apprehension of imminent physical injury to the victim or such third person.

Pursuant to section 13-1304(B), kidnapping is a class 2 felony,

unless the victim is released voluntarily by the defendant without physical injury in a safe place prior to arrest and prior to accomplishing any of the further enumerated offenses in subsection A of this section in which case it is a class 4 felony.

¶ 11 At trial, Tschilar proposed forms of verdict that would permit the jury, not the court, to determine whether he had released the victims such that the kidnapping offenses could be designated class 4 felonies rather than class 2 felonies if he were convicted. The State responded that, according to State v. Eagle, 196 Ariz. 188, 994 P.2d 395, cert. denied, 531 U.S. 839, 121 S.Ct. 102, 148 L.Ed.2d 60 (2000), the question did not pertain to an element of the offense but, rather, was one to be resolved by the court in sentencing the convicted defendant.

¶ 12 In Eagle, the Arizona Supreme Court held that A.R.S. section 13-1304(A) completely defines the elements of kidnapping and that subsection B only pertains to the classifications of the punishment. Id. at 190-91 ¶¶ 7-8, 10, 994 P.2d at 397-98. The voluntary release of a victim was determined to be "a mitigating factor relevant solely for sentencing purposes." Id. at 192 ¶ 17, 994 P.2d at 399. The court expressly rejected the theory that a victim's safe release constituted an element of second-degree kidnapping, concluding that no such offense exists in Arizona. Id. at 189-90 ¶ 4, 994 P.2d at 396-97.

¶ 13 While Tschilar requested and the trial court granted a deferral of its ruling to give defense counsel time to read Eagle, the matter was not pursued, and Tschilar did not object to the forms of verdict ultimately used. Accordingly, the court did not present the matter to the jury, and, at sentencing, it designated Tschilar's kidnapping convictions as class 2 felonies.⁴

¶ 14 Tschilar contends that whether the teenagers were voluntarily released unharmed as described in A.R.S. section 13-1304(B) was an element of the offense of kidnapping requiring a jury determination of that fact according to Apprendi The issue presented to us, therefore, is whether Apprendi effectively serves to overrule the holding in Eagle that the victim's safe release is not an element of the offense of kidnapping but a factor involved in sentencing.⁵ We conclude that it does not.

¶ 15 Apprendi had not been decided when Tschilar was sentenced, but, because it presents a new rule of constitutional law, its rationale is applied to cases pending on direct review. Griffith v. Kentucky, 479 U.S. 314, 328, 107 S.Ct. 708, 93 L.Ed.2d 649 (1987). It is a question of law that we review de novo whether Apprendi requires that the issue of a victim's safe release as set forth in A.R.S. section 13-1304(B) be resolved by the jury as an element of the offense of kidnapping. Zamora v. Reinstein, 185 Ariz. 272, 275, 915 P.2d 1227, 1230 (1996).

¶ 16 Apprendi pleaded guilty to possession of a firearm for an unlawful purpose and two other offenses. The firearms offense arose from an occasion in which Apprendi had fired into the home of an African American family that had moved into his neighborhood. After his arrest, Apprendi had stated that, while he did not know them, he did not want the family in the neighborhood because they were African Americans. He later retracted the statement. As part of the plea agreement, the prosecutor reserved the right to request an enhanced sentence on that firearms charge on the basis that the offense had been committed with racial bias. Without the enhancement, the range of sentence was five to ten years; with the enhancement, the range of sentence was ten to twenty years. The trial...