State v. Fisher

Full title: STATE OF ARIZONA, Appellee, v. THOMAS JACOB FISHER, II, Appellant.

Court: COURT OF APPEALS STATE OF ARIZONA DIVISION ONE DEPARTMENT B

Date published: Sep 6, 2012

No. 1 CA-CR 11-0335 (Ariz. Ct. App. Sep. 6, 2012)

Opinion

No. 1 CA-CR 11-0335

09-06-2012

STATE OF ARIZONA, Appellee, v. THOMAS JACOB FISHER, II, Appellant.

Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Jeffrey L. Sparks, Assistant Attorney General Attorneys for Appellee Phoenix Law Offices of Paul J. Mattern, P.C. By Paul J. Mattern Attorneys for Appellant Phoenix

HOWE

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(Not for Publication -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 Yuma County

Cause No. S1400CR200800047

The Honorable John N. Nelson, Judge

AFFIRMED

Thomas C. Horne, Arizona Attorney General

By Kent E. Cattani, Chief Counsel

Criminal Appeals/Capital Litigation Section

Jeffrey L. Sparks, Assistant Attorney General
Attorneys for Appellee

Phoenix Law Offices of Paul J. Mattern, P.C.

By Paul J. Mattern
Attorneys for Appellant

Phoenix HOWE , Judge ¶1 Thomas Jacob Fisher, II appeals his conviction and sentence for first degree murder. He argues that insufficient evidence supported his conviction and that the trial court erred in sentencing him to natural life. For reasons that follow, we affirm. ¶2 A grand jury indicted Fisher on one count of first degree murder, a class 1 felony, in connection with the death of his stepfather ("the victim"). The victim was found dead in a game room at home with his face beaten, a large gash in his neck, and a pool table pinning his body to the floor, crushing his chest. Cause of death was determined to be blunt impact trauma to the head, neck and torso with multiple severe internal injuries. ¶3 Fisher was the last person with the victim in the game room on the evening of December 20, 2007. When the victim was found dead the next morning, Fisher, who had been living with his mother and the victim, had already left the home. ¶4 Fisher surrendered to police eight days later. When questioned about the victim's death, Fisher admitted that he and the victim had come to blows in the game room. Fisher further admitted that after knocking the victim to the ground and rendering him defenseless, he continued to punch and kick the victim. He also admitted that he hit the victim with multiple cue sticks, used a cue stick to pierce the victim's neck, placed the pool table on the victim, and then repeatedly threw an eight ball at the victim after he was pinned under the pool table. ¶5 After a jury trial, Fisher was found guilty as charged. The trial court denied Fisher's motion for a new trial and sentenced him to natural life, finding that the offense was committed in a heinous, cruel and depraved manner, and that it caused emotional harm to the family. ¶6 Fisher timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1), 13-4031 and -4033(A)(3) (West 2012).¹

1 We cite to the current Westlaw version of applicable statutes absent revisions material to this decision since the date of the offense.

DISCUSSION

¶7 Fisher argues that insufficient evidence supported his conviction for first degree murder.² Specifically, Fisher claims the State failed to prove that the murder was premeditated. The issue of sufficiency of the evidence "is one of law, subject to de novo review on appeal." State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). ¶8 In considering claims of insufficient evidence, our review is limited to whether substantial evidence exists to support the verdict. State v. Scott , 177 Ariz. 131, 138, 865 P.2d 792, 799 (1993); see also Ariz. R. Crim. P. 20(a) (stating trial court shall enter judgment of acquittal "if there is no substantial evidence to warrant a conviction"). "Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996). To set aside a jury verdict based on insufficient evidence, "it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). ¶9 To prove first degree murder, the State was required to show that Fisher intentionally or knowingly caused the victim's death "with premeditation." A.R.S. § 13-1105(A)(1). Premeditation is defined by statute as follows:

"Premeditation" means that the defendant acts with either the intention or the knowledge that he will kill another human being, when such intention or knowledge precedes the killing by any length of time
to permit reflection. Proof of actual reflection is not required, but an act is not done with premeditation if it is the instant effect of a sudden quarrel or heat of passion.

A.R.S. § 13-1101(1); accord State v. Ellison, 213 Ariz. 116, 134, ¶ 66, 140 P.3d 899, 917 (2006). ¶10 Our supreme court has explained what the State must show to prove that a killing was premeditated:

The State bears the burden of proving premeditation beyond a reasonable doubt. To make this showing, the [S]tate must prove that the defendant made a decision to kill prior to the act of killing, that a plan to murder was formed after the matter had been made a subject of deliberation and reflection. The necessary premeditation, however, may have been as instantaneous as successive thoughts of the mind and may be proven by either direct or circumstantial evidence.

State v. Kreps, 146 Ariz. 446, 449, 706 P.2d 1213, 1216 (1985) (internal quotations and citations omitted); see also State v. Thompson, 204 Ariz. 471, 479, ¶ 31, 65 P.3d 420, 428 (2003) ("The key is that the evidence, whether direct or circumstantial, must convince a jury beyond a reasonable doubt that the defendant actually reflected."). ¶11 Here, the evidence was more than sufficient to support a finding that Fisher committed premeditated murder. The evidence at the scene showed that the victim had been subjected to a severe and sustained beating. Fisher used multiple cue sticks to beat the victim and pierce his neck, and Fisher took substantial time and effort to place the pool table on the victim. See State v. Gulbrandson, 184 Ariz. 46, 65, 906 P.2d 579, 598 (1995) (holding evidence of "protracted, brutal" murder involving "sustained attack on the victim" supports finding that killing was premeditated). Further, the severity of the victim's injuries and Fisher's obvious targeting of the victim's face and neck is additional circumstantial evidence that Fisher premeditated the murder. See State v. Lopez, 158 Ariz. 258, 263, 762 P.2d 545, 550 (1988) ("The nature, severity and placement of the injuries to the victim also provide some evidence of premeditation."). ¶12 In addition to the physical evidence, Fisher's statements to the police also indicate that he reflected upon killing the victim during the beating. Fisher stated that it only took two punches to stop the victim, but then he "went on the attack." Fisher acknowledged that after he had punched the victim five times, knocking him to the ground, the victim was bleeding profusely and was defenseless. Fisher admitted recognizing that he "should have stopped there," but decided to continue to beat the victim, first with his hands and feet and then using pool cues. He additionally admitted that he intentionally targeted the victim's neck because he "kn[e]w the neck [was] very vulnerable." Moreover, he described himself as "getting more methodical" and "calming down" before he placed the pool table on the victim. Finally, he expressly admitted that during his attack he "wanted to take [the victim's] life." ¶13 The jury could reasonably conclude from the evidence that Fisher had known he would kill the victim and had reflected upon doing so before his death. The fact that some evidence was consistent with Fisher's self-defense theory or with his contention that the victim was the initial aggressor does not preclude a reasonable jury from concluding that he had killed the victim with premeditation. See State v. Riggins, 111 Ariz. 281, 284, 528 P.2d 625, 628 (1974) ("Evidence is not insubstantial simply because the testimony is conflicting or reasonable persons may draw different conclusions therefrom." (citation omitted)). The trial court properly denied Fisher's motions for judgment of acquittal and for new trial based on insufficient evidence. ¶14 Fisher next argues that the trial court erred in sentencing him to natural life. He contends the trial court should have sentenced him to life with the possibility of release after twenty-five years because of mitigating factors present in his case. We review a sentence within statutory limits for abuse of discretion and will not overturn such a sentence unless the trial court acted arbitrarily or capriciously, or failed to adequately investigate the facts relevant to sentencing. State v. Ramos, 133 Ariz. 4, 7, 648 P.2d 119, 122 (1982). ¶15 When a defendant is convicted of first-degree murder in a non-capital case, the trial court determines whether to impose a sentence of life or natural life. A.R.S. § 13-703.01(Q).³ In making this determination, the trial court may consider "any evidence introduced before sentencing or at any other sentencing proceeding," and "[s]hall consider the aggravating and mitigating circumstances listed in § 13-702 and any statement made by a victim." Id. Although the sentencing court must consider all evidence offered in mitigation, it is not required to accept such evidence. State v. Stokley, 182 Ariz. 505, 519, 898 P.2d 454, 469 (1995). "In other words, the trial court need only consider evidence offered in mitigation; it need not find the evidence mitigating." State v. Long, 207 Ariz. 140, 148, ¶ 41, 83 P.3d 618, 626 (App. 2004). ¶16 We find no abuse of discretion in the imposition of a natural life sentence. The record reflects that the trial court was aware of the various mitigating circumstances Fisher offered to support the possibility of release after twenty-five years. The trial court, however, found only one of the circumstances--lack of any prior criminal record--to be a mitigating factor and could reasonably conclude that the aggravating factors of emotional harm to the victim's family and the heinous, cruel, and depraved manner in which he killed the victim fully justified the sentence of natural life. We hold that the trial court's sentencing decision was not capricious, arbitrary, or the result of an inadequate factual investigation. ¶17 For purposes of preserving the issue, Fisher further argues that his sentence was illegal because he was denied his right to a jury trial on the aggravating factors. As Fisher correctly concedes, however, our supreme court has held that in first-degree murder cases, the finding of aggravating factors is not necessary for the imposition of a natural life sentence because the guilty verdict alone allows the court to impose this sentence. State v. Fell, 210 Ariz. 554, 557-58, ¶ 11, 115 P.3d 594, 597-98 (2005). Accordingly, the trial court did not err in sentencing Fisher to natural life in the absence of a jury trial on the aggravators.

2 Fisher contends the trial court erred in denying his motion for judgment of acquittal, see Ariz. R. Crim. P. 20, and his motion for a new trial, see Ariz. R. Crim. P. 24.1, with both motions being based on the same claim of insufficient evidence. We need not address Fisher's claim in multiple contexts. See State v. Neal, 143 Ariz. 93, 98, 692 P.2d 272, 277 (1984) ("A Rule 20 motion is designed to test the sufficiency of the state's evidence."); State v. Mincey, 141 Ariz. 425, 432-33, 687 P.2d 1180, 1187-88 (1984) (noting similarity of Rule 20 and Rule 24.1 standards and deciding issues regarding sufficiency and weight of evidence without separate analyses); State v. Davis, 226 Ariz. 97, 99, ¶ 7, 244 P.3d 101, 103 (App. 2010) (holding no error in denying motion for new trial based on claim that verdict was against "the weight of the evidence" where State presented evidence sufficient to support a verdict of guilt).

3 Fisher notes in his brief that, at sentencing, both counsel and the trial court incorrectly referred to the applicable sentencing statute as A.R.S. § 13-752 rather than § 13-703.01. The sentencing statutes in the Arizona Criminal Code, including § 13-703.01, were reorganized and renumbered effective December 31, 2009. 2008 Ariz. Sess. Laws, Ch. 301, § 120. The reorganizing act, which renumbered section 13-703.01 as 13-752, did not make any substantive change to the statute, and Fisher does not raise any issue on appeal regarding the references to the sentencing statute by its current section number rather than its number at the time of the offense. See A.R.S. § 1-246 (providing "offender shall be punished under the law in force when the offense was committed").
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CONCLUSION

¶18 For the above reasons, we affirm Fisher's conviction and sentence.

__________________

RANDALL M. HOWE, Judge
CONCURRING: __________________
MARGARET H. DOWNIE, Presiding Judge
__________________
PHILIP HALL, Judge