State v. Martinez

THE STATE OF ARIZONA, Appellee, v. EDUARDO MARTINEZ, Appellant.

2 CA-CR 2013-0043

COURT OF APPEALS STATE OF ARIZONA DIVISION TWO DEPARTMENT B

Filed: October 29, 2013

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Not for Publication Rule 111, Rules of the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20121612001

Honorable Richard S. Fields, Judge

AFFIRMED IN PART; VACATED IN PART

Thomas C. Horne, Arizona Attorney General

By Joseph T. Maziarz and Diane Leigh Hunt

Tucson

Attorneys for Appellee

Nicole Farnum

Phoenix

Attorney for Appellant

ESPINOSA, Judge.

¶1 Eduardo Martinez was charged with robbery and two counts of endangerment in connection with events that occurred at a local store in January 2012.

He was convicted on all counts, and the trial court imposed presumptive and concurrent sentences totaling ten years' imprisonment. On appeal from his convictions and sentences, Martinez argues his due process and fair trial rights were denied when the court failed to instruct the jury on the lesser-included offenses of theft and attempted robbery. For the following reasons, we affirm Martinez's convictions and sentences but vacate the criminal restitution order entered by the court at sentencing.

Factual and Procedural Background

¶2 "On appeal, we view the facts in the light most favorable to upholding the verdict and resolve all inferences against the defendant." State v. Klokic, 219 Ariz. 241, n.1, 196 P.3d 844, 845 n.1 (App. 2008). On the night of January 7, 2012, Martinez drove a friend's car to a drug store, where he picked up two cases of beer and presented them to the cashier at the front of the store, as if for payment. As the cashier began to ring up the purchase, however, Martinez pulled the beer off the counter and ran out the front door into the parking lot. As he neared the driver's side of a parked vehicle, the store manager, who had been outside, ran towards the car and Martinez threw one of the cases of beer at her, hitting her in the stomach. He then picked up the other case of beer, which he had set down on the pavement, and put it in the car. Upon hurriedly backing out of the parking space, Martinez nearly struck the manager and a bystander. He was apprehended several months later, and in a police interview admitted taking the cases of beer without paying for them.

¶3 Following a jury trial, Martinez moved for a new trial based on the court's failure to instruct the jury on theft as the lesser offense of robbery. The court denied themotion, and this appeal followed. We have jurisdiction over the appeal pursuant to A.R.S. §§ 12-120.21, 13-4031, and 13-4033(A)(1).

Discussion

Jury Instructions

¶4 On appeal, Martinez contends the trial court erred by failing to instruct the jury regarding the lesser offenses of both theft and attempted robbery. We typically review the trial court's denial of a requested jury instruction for abuse of discretion. See, e.g., State v. Price, 218 Ariz. 311, ¶ 21, 183 P.3d 1279, 1284 (App. 2008). However, because Martinez failed to request an attempted robbery instruction at trial, we apply a fundamental error standard to that claim. See Ariz. R. Crim. P. 21.3; State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991); State v. Whittle, 156 Ariz. 405, 406, 752 P.2d 494, 495 (1988).

¶5 A court must instruct the jury on a lesser-included offense of the crime charged if the evidence supports the requested instruction. State v. Vickers, 159 Ariz. 532, 542, 768 P.2d 1177, 1187 (1989); see also Ariz. R. Crim. P. 23.3 (trial court must instruct jury on all offenses "necessarily included in the offense charged"). This rule "is designed to prevent a jury from convicting a defendant of a crime, even if all of its elements have not been proved, simply because the jury believes the defendant committed some crime." State v. Wall, 212 Ariz. 1, ¶ 16, 126 P.3d 148, 151 (2006) (emphasis added). However, a lesser-included instruction is not required merely because a jury could disbelieve all the evidence of the greater charge except the elements of the lesser. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). Such aninstruction is necessary only where a jury could "'rationally fail to find the distinguishing element of the greater offense.'" State v. Krone, 182 Ariz. 319, 323, 897 P.2d 621, 625 (1995), quoting State v. Detrich, 178 Ariz. 380, 383, 873 P.2d 1302, 1305 (1994). Stated simply, "[t]he evidence must support the lesser included offense." Bolton, 182 Ariz. at 309, 896 P.2d at 849.

Theft Instruction

¶6 Under Arizona law, an individual commits theft by knowingly "[c]ontrol[ling] property of another with the intent to deprive the other person of such property." A.R.S. § 13-1802(A)(1). Robbery, on the other hand, is defined in A.R.S. § 13-1902(A):

A person commits robbery if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property.

Our supreme court has indicated that § 13-1902 does not apply and a lesser-included theft instruction is required "when the thief has gained peaceable possession of the property and uses no violence except to resist arrest or effect his escape." State v. Celaya, 135 Ariz. 248, 252, 660 P.2d 849, 853 (1983). Thus, Martinez was entitled to an instruction on theft if a jury could reasonably find from the evidence in the record that his concededuse of force¹ was not an attempt to retain control of the beer he had in his arms when he exited the store.

¶7 The State's evidence concerning Martinez's actions came from multiple sources. First, the store manager testified she had seen Martinez running out the door with two cases of beer. When she confronted him near his car, he threw a case of beer directly into her stomach, causing her to double over. He then backed the car out of the parking space while she was still behind it, forcing her to jump out of the way to avoid being struck. The cashier testified she saw Martinez back out of the parking spot toward the manager and the cashier's mother—who had tried to assist the manager and had almost been struck herself. Finally, the State introduced videotaped footage of the incident that clearly depicted the sequence of events and corroborated the eye-witness accounts.

¶8 Martinez did not introduce any evidence to contradict the foregoing testimony or undercut the reliability of the videotaped footage of his crime. He nevertheless maintains that a theft instruction was necessary because a rational juror could have concluded "that he had peaceable possession of the beer . . . before he left the scene without it," citing Celaya, 135 Ariz. at 252-53, 660 P.2d at 853-54, where our supreme court held the trial court's omission of a theft instruction constituted reversible error. We find his reliance on Celaya misplaced.

¶9 In Celaya, a narcotics officer was shot and killed during an undercover cocaine buy. Id. at 250-51, 660 P.2d at 851-52. While the officer waited in his car, Celaya exchanged a suitcase purportedly containing cocaine (but in fact containing clothing and old shoes) for a bag of money provided by the officer. Id. at 250, 660 P.2d at 851. After placing the money in his own car, Celaya returned to the officer's car and shot him. Id. According to Celaya and one witness, the officer had voluntarily turned over the money prior to the shooting. Id. at 252, 660 P.2d at 853. Our supreme court stated "robbery is not committed when the thief has gained peaceable possession of the property and uses no violence except to resist arrest or effect his escape." Id. The court concluded that if the jury believed Celaya's version of the facts, it rationally could have found that he gained control of the money without threat of force and that the taking of the property was complete prior to the homicide. Id.

¶10 Unlike in Celaya, no rational view of the evidence presented at Martinez's trial would permit a finding that he peaceably established control over the stolen property and that force was employed only after the taking was complete. Indeed, this characterization runs directly counter to the evidence in the record. In particular, the video showed Martinez approaching the driver's side of a vehicle while being chased by the manager. Martinez paused to place one case of beer on the ground and, as he reached for the door handle with his left hand, he used his right hand to throw the second case of beer at the manager, who was by then at the back of the car. The manager stumbled backward from the blow as Martinez threw the remaining case of beer into the vehicle, jumped in, and rapidly backed the car out of the parking space toward both the managerand the cashier's mother before driving away. The evidence shows that Martinez's transfer of the stolen property to the car—which can hardly be viewed as a separate, "peaceable event"—was the action that ultimately established his possession for purposes of this inquiry, see Celaya, 135 Ariz. at 252, 660 P.2d at 853 (distinguishing between physical custody and control for purposes of possession inquiry).

¶11 But even if a jury could find that Martinez had obtained peaceable possession of the cases of beer inside the store, the evidence did not support a reasonable finding that the taking was complete when he threw the beer at the manager. See id. In reaching this conclusion, we note the difficulty in conjuring a scenario in which a defendant could be found guilty of theft, but not robbery, where he employed force while in physical custody of the property but before the taking was complete. And to find so in this case would suggest that anytime a robber had the stolen property in his hands, ...