Opinion
2 CA-CR 2011-0385
01-31-2013
THE STATE OF ARIZONA, Appellee, v. TIMOTHY LYNN KREUS, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and Alan L. Amann Tucson Attorneys for Appellee Lori J. Lefferts, Pima County Public Defender By Michael J. Miller Tucson Attorneys for Appellant
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Not for Publication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. CR20100688001
Honorable Deborah Bernini, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Joseph T. Maziarz,
and Alan L. Amann
Tucson
Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender
By Michael J. Miller
Tucson
Attorneys for Appellant
ESPINOSA, Judge. ¶1 Timothy Kreus was convicted, following a jury trial, of attempted kidnapping, kidnapping, aggravated assault with a deadly weapon, and assault. The trial court sentenced him to two concurrent life terms of imprisonment and a consecutive, aggravated prison term of twenty-eight years. On appeal, Kreus challenges the court's discretionary rulings related to admission of evidence, severance of charges for trial, jury instructions, and the denial of his motion for a new trial based on prosecutorial misconduct. We affirm his convictions and sentences.
The sentences were enhanced based on Kreus's multiple prior felony convictions. Kreus also was sentenced to time served for the simple assault.
Factual Background and Procedural History
¶2 We view the facts in the light most favorable to upholding the verdicts. State v. Rutledge, 205 Ariz. 7, n.1, 66 P.3d 50, 52 n.1 (2003). One morning in January 2010, fifteen-year-old J.A. was waiting at her school bus stop in northwest Tucson when Kreus pulled up alongside her in a white pickup truck. He exited the truck and approached her, produced a handgun from the front pocket of his dark, hooded sweatshirt, and told her, "[C]ome here." J.A. turned and fled, and Kreus ran after her, yelling for her to "come here." Kreus chased her until a woman driving by slowed her vehicle to observe him "grabbing [J.A.] and trying to grab at her and go after her." When Kreus saw the witness, he ran back to his truck and "took off around the corner." J.A. ran home and reported the incident to her grandfather. Based on J.A.'s description, the sheriff's department developed a composite sketch of the attacker. ¶3 Approximately two weeks later, fifteen-year-old L.T. was walking home from school in central Tucson when Kreus, driving a white pickup truck, pulled over and parked in front of her. L.T. initially walked past the truck, but Kreus approached her from behind, struck her in the back of the head, grabbed her "by a choke hold," dragged her, screaming and fighting, back to his vehicle, threw her inside through the driver's side door, and drove away. L.T. honked the horn and scratched, clawed, and kicked Kreus, who repeatedly hit her in the face and head. While in the truck, L.T. noticed a cellular telephone that was on the seat and saw a black duffel bag on the floorboard and a radar detector mounted "on the windshield." After a few minutes, Kreus opened the door of the truck and pushed her out of the moving vehicle. Later, DNA samples were obtained from places on L.T.'s body where she reported contact with her abductor, and a composite drawing of the attacker was prepared based upon her description. ¶4 Police linked some of the DNA with Kreus and discovered a white pickup truck was registered in his mother's name. Two weeks after he had abducted L.T., Kreus was arrested, and police searched the truck, finding a handgun, two cellular telephones, a black hooded sweatshirt, a mounted radar detector, a black duffel bag, and a brown bag containing several unused condoms and pornographic magazines. In a post-arrest interview, Kreus acknowledged owning the sweatshirt, duffel bag, and radar detector, and admitted to possessing the handgun, which belonged to his mother. Testing of Kreus's DNA sample conclusively established that DNA collected from L.T.'s fingernails belonged to him, and at trial, both J.A. and L.T. identified him as their assailant. Kreus was convicted and sentenced as described above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
Deoxyribonucleic acid
At the settling of jury instructions, the parties agreed that the magazines were not illegal pornography.
Discussion
Admissibility of Condoms and Pornographic Magazines
¶5 Kreus asserts the trial court improperly admitted evidence of the unused condoms and pornographic magazines found in his truck. Over his objection, the court permitted the state to present photographs of that evidence to the jury, reasoning "one of the elements that the State wishes to go forward on is evidence that the kidnappings alleged in this cause number were done to commit a sexual offense." Later, after denying Kreus's unrelated motion for a new trial, the court commented on its previous evidentiary ruling, acknowledging it "may have been incorrect" because the court had been "unaware that there were [two] duffel bags" in the truck and had mistakenly believed L.T. "had seen the duffel bag at issue in which the items were found." The court stated that had it understood L.T. did not see the particular bag containing the magazines and condoms, and the items were "just some property that was found in [Kreus's] possession . . . days later," after his arrest, its "ruling would have been different." But the court determined, after "review[ing] all the evidence [and] having looked at [its] notes from the trial," that even if the ruling was erroneous, it did not unfairly prejudice Kreus. We review rulings on the admissibility of evidence for an abuse of discretion. Rutledge, 205 Ariz. 7, ¶ 15, 66 P.3d at 53. ¶6 Kreus asserts that the condoms and magazines amounted to character or other-acts evidence and that the state submitted the evidence for the improper purpose of proving action in conformity with that character. See Ariz. R. Evid. 404. We agree possession of the condoms and magazines was other-acts evidence because it does not directly or circumstantially prove the charged acts, the items were not possessed contemporaneously with the kidnappings or assaults, and the items did not directly facilitate commission of the offenses. See State v. Ferrero, 229 Ariz. 239, ¶ 20, 274 P.3d 509, 513 (2012). The state contends the condoms and magazines were admissible under Rule 404(b) as circumstantial evidence of Kreus's sexual intent. Indeed, the trial court's stated justification for admitting the evidence was to allow the state to support its theory that Kreus was sexually motivated to commit the crimes. See A.R.S. § 13-1304(A)(3) (person commits kidnapping by "knowingly restraining another person with the intent to . . . [i]nflict death, physical injury, or a sexual offense on the victim"); State v. Detrich, 188 Ariz. 57, 60, 63 & n.3, 932 P.2d 1328, 1331, 1334 & n.3 (1997) (defendant's threats and witness's observations admissible to prove intent to commit sexual offense under § 13-1304(A)(3)). ¶7 Although evidence of possession of pornography and condoms may be admissible under Rule 404(b) for purposes "such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident," "[w]here, as here, the accused denies any involvement in the charged offense, the 'intent' exception of [Rule] 404(b) is not a proper basis for injecting prior misconduct into a proceeding." State v. Hughes, 189 Ariz. 62, 69, 938 P.2d 457, 464 (1997). Intent is frequently proven using circumstantial evidence, State v. Lester, 11 Ariz. App. 408, 410, 464 P.2d 995, 997 (1970), but "'[e]vidence of a prior crime, act, or wrong cannot be introduced to prove a defendant's mental state unless it is similar to the act for which the defendant is on trial.'" Hughes, 189 Ariz. at 69, 938 P.2d at 464, quoting State v. Woody, 173 Ariz. 561, 563, 845 P.2d 487, 489 (App. 1993). Moreover, the condoms and magazines were found in Kreus's truck a month after the first kidnapping incident and two weeks after the second, while he was visiting the apartment of two adult women. There was no indication he had possessed the items before or during the kidnappings; thus, the items could not reliably prove plan, preparation, or opportunity. Because the other acts evidence was not admissible under any Rule 404(b) exception, we agree with the trial court's post-trial assessment that the evidence should not have been admitted. ¶8 However, we also concur with the trial court's subsequent conclusion that any error was harmless. See State v. Grannis, 183 Ariz. 52, 57, 900 P.2d 1, 6 (1995) (error harmless if court may say, beyond reasonable doubt, jury would have convicted absent error), disapproved on other grounds by State v. King, 225 Ariz. 87, 235 P.3d 240 (2010); State v. Bible, 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993) (harmless error review applies when issue properly presented to trial court but ruling erroneous). There was ample evidence to convict Kreus of kidnapping without consideration of any sexual intent, based upon his infliction of physical injury on L.T. and intent to physically injure J.A. See § 13-1304(A)(3) (person may commit kidnapping by knowingly restraining another person with intent to inflict physical injury). J.A. testified Kreus pulled a gun out of his sweatshirt and chased her, making her "scared and nervous" and unsure "what was going to happen," causing her to run home. And L.T., the responding detective, and a forensic nurse examiner all testified about the injuries L.T. sustained to her face, neck, knee, and arm during her ordeal, and the jury viewed photographs of the same. The jury was instructed it could find Kreus guilty on the basis of intent to inflict death or physical injury, or to place the victim in reasonable apprehension of immediate physical injury, in addition to receiving an instruction on intent to commit a sexual offense. Jurors are presumed to follow the court's instructions, State v. Newell, 212 Ariz. 389, ¶ 68, 132 P.3d 833, 847 (2006), and there was overwhelming evidence that Kreus knowingly restrained L.T. and attempted to restrain J.A. See §§ 13-1001(A)(1); 13-1304(A)(3). ¶9 Finally, apart from two photographs of the magazine covers, no graphic images of pornography were shown to the jury. Before voir dire, the trial court screened and excused any prospective jurors who indicated they "might have a negative opinion about" a person who looks at pornography. And, with Kreus's approval, the jury was further instructed that "[i]t is not a criminal offense to possess" condoms or adult pornography, that Kreus was "not on trial for possessing them," and they could not consider the evidence "to decide that [he] is a bad person" or for any purpose other than intent, plan, or motive in committing the crimes. Thus, even though the magazine and condoms were improperly admitted, other properly admitted evidence refutes any hypothesis other than Kreus's guilt. We therefore conclude beyond a reasonable doubt that the admission of the condoms and magazines "did not contribute to or affect the verdict." State v. Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d 601, 607 (2005). Accordingly, no reversible error occurred.
At trial, the state also urged admission of the magazines and condoms to show aberrant sexual propensity under Rule 404(c), and the trial court appears to have admitted the evidence, at least partly, on this ground. The state has abandoned this argument on appeal, as it must, given that Rule 404(c) was not a proper evidentiary basis in this case because Kreus was not charged with a sexual offense as defined in A.R.S. § 13-1420(C).
Third-Party Culpability Evidence
¶10 Kreus argues the trial court erred by precluding potentially exculpatory evidence that in 2005, J.A.'s mother reportedly had been kidnapped and held for ransom, later to be located during a traffic stop; and in October 2009, J.A.'s brother allegedly had been offered a ride "by a white male in a truck." Following a hearing, the court determined the evidence was too remote to be relevant, and noted there had been no description of the kidnapper in either previous situation. Kreus argues the evidence was relevant because it supported his mistaken-identity theory and tended to negate the state's suggestion that the crimes were sexually motivated. ¶11 We review a trial court's decision whether to admit third-party culpability evidence for an abuse of discretion. State v. Prion, 203 Ariz. 157, ¶ 21, 52 P.3d 189, 193 (2002). Third-party culpability evidence must "tend to create a reasonable doubt as to the defendant's guilt," and its probative value must not be substantially outweighed by the danger of undue prejudice, confusion of the issues, or delay. State v. Gibson, 202 Ariz. 321, ¶ 15, 44 P.3d 1001, 1004 (2002); Prion, 203 Ariz. 157, ¶¶ 22, 24, 52 P.3d at 193; see also Ariz. R. Evid. 401, 403. ¶12 We agree with the trial court that the proffered evidence was not relevant to the question of Kreus's guilt. See Prion, 203 Ariz. 157, ¶ 21, 52 P.3d at 193 (trial court has discretion to exclude evidence offering only possible ground of suspicion against third party). On its face, the evidence did not tend to exonerate Kreus, since he could have been the perpetrator in the previous incidents. And it does not suggest reasonable doubt, but merely speculation, which is impermissible. "[A] defendant may not, in the guise of a third-party culpability defense, simply 'throw strands of speculation on the wall and see if any of them will stick.'" State v. Machado, 226 Ariz. 281, n.2, 246 P.3d 632, 635 n.2 (2011), quoting State v. Machado, 224 Ariz. 343, n.11, 230 P.3d 1158, 1172 n.11 (App. 2010), aff'd, 226 Ariz. 281, 246 P.3d 632 (2011). ¶13 Further, Kreus's argument that preclusion of the evidence amounted to a denial of his constitutional right to present witnesses in his own defense is without merit. See generally Chambers v. Mississippi, 410 U.S. 284, 302 (1973) (describing right to present defense witnesses). The state correctly points out that "the Constitution permits judges 'to exclude evidence that is "repetitive . . . , only marginally relevant" or poses an undue risk of "harassment, prejudice, [or] confusion of the issues."'" Holmes v. South Carolina, 547 U.S. 319, 326-27 (2006), quoting Crane v. Kentucky, 476 U.S. 683, 689-90 (1986), quoting Delaware v. Van Arsdall, 457 U.S. 673, 679 (1986) (alterations in Crane). We find no error in the trial court's preclusion of the third-party culpability evidence.
Rules 401 through 403 were amended effective January 2012, and differ from the versions in effect when the court ruled on the evidentiary motion. Ariz. Sup. Ct. Order R-10-0035 (Sept. 7, 2011). We cite the current rules for ease of reference, as the changes were intended to be stylistic only. See Ariz. R. Evid. 401-403 2012 court cmts.
Motion to Sever
¶14 Kreus contends the trial court erred in denying his motion to sever the counts involving J.A. from those involving L.T., arguing he was entitled to severance as a matter of right pursuant to Rule 13.4(b), Ariz. R. Crim. P. Rule 13.3(a), Ariz. R. Crim. P., permits joinder of two or more offenses in a single indictment if they: (1) "[a]re of the same or similar character," (2) "[a]re based on the same conduct or are otherwise connected together in their commission," or (3) "[a]re alleged to have been a part of a common scheme or plan." However, the court must sever counts if a party so moves and severance is "necessary to promote a fair determination of the [defendant's] guilt," Ariz. R. Crim. P. 13.4(a); if offenses are joined only due to their same or similar character, a defendant is entitled to severance as a matter of right, Ariz. R. Crim. P. 13.4(b). We review a denial of a motion to sever for a clear abuse of discretion. State v. Comer, 165 Ariz. 413, 418, 799 P.2d 333, 338 (1990). ¶15 In denying Kreus's severance motion, the trial court determined that joinder was proper because the acts constituted a common scheme or plan and because of their similar character. See Ariz. R. Crim. P. 13.3(a)(1), (3). Kreus asserts the offenses could not have been joined under Rule 13.3(a)(3) because there was no evidence of a common scheme or plan, and he was entitled to severance as a matter of right. See Ariz. R. Crim. P. 13.4(b). Our supreme court has held mere similarities and a temporal connection between the crimes are insufficient to support a finding of common scheme or plan. See State v. Ives, 187 Ariz. 102, 107-08, 927 P.2d 762, 767-68 (1996) (analysis focuses on whether acts part of "'particular plan of which the charged crime is a part'"), quoting State v. Ramirez Enriquez, 153 Ariz. 431, 433, 737 P.2d 407, 409 (App. 1987); compare State v. Hausner, 230 Ariz. 60, ¶ 47, 280 P.3d 604, 618 (2012) (finding common scheme or plan where expert testimony of thrill-seeking scheme connected defendant's crimes), with State v. Lee, 189 Ariz. 590, 598-99, 944 P.2d 1204, 1212-13 (1997) (finding no common scheme or plan, despite crimes' numerous similarities, because no evidence suggested they were components of one single, over-arching plan). Although the state presented evidence demonstrating that the two episodes were similar and relatively close in time, it presented no evidence to support its theory that the incidents comprised an over-arching criminal plan. ¶16 We need not determine, however, whether the trial court erred in finding the acts part of a common scheme or plan, because reversal is not warranted if the evidence pertaining to either victim would have been admissible at separate trials under Rule 404(b). Lee, 189 Ariz. at 599, 944 P.2d at 1213. Proper purposes under Rule 404(b) include "proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident." Thus, "'if identity is in issue, and if the behavior of the accused both on the occasion charged and on some other occasion is sufficiently distinctive, then proof that the accused was involved on the other occasion tends to prove his involvement in the crime charged.'" State v. Williams, 209 Ariz. 228, ¶ 19, 99 P.3d 43, 48 (App. 2004), quoting State v. Stuard, 176 Ariz. 589, 597, 863 P.2d 881, 889 (1993). That the crimes are of the same nature is not sufficient to bring conduct within the identity exception; the "'pattern and characteristics of the crimes must be so unusual and distinctive as to be like a signature.'" Id., quoting Stuard, 176 Ariz. at 597, 863 P.2d at 889. But identity in every detail is not required. Id. ¶17 The two incidents here were sufficiently similar and distinctive to permit the trial court to find them admissible in separate trials under the identity exception of Rule 404(b). Both victims were fifteen-year-old girls, walking to or from school. In both instances, Kreus drove up to the girls in a white pickup, exited the vehicle, and attempted to force them into the vehicle with him. See Williams, 209 Ariz. 228, ¶ 21, 99 P.3d at 48 (both victims female pedestrians and defendant followed victims in vehicle, pulling up and stopping beside them, partially removing his clothing, and masturbating while driving). That the outcome of Kreus's efforts differed does not preclude the evidence from qualifying under the Rule 404(b) identity exception. See id. ¶¶ 4, 12, 19 (incidents sufficiently similar to prove identity although previous victim had been thirty-six years old and riding bicycle home from movies, while current fourteen- and fifteen-year-old victims were walking home from school). And the evidence was relevant because Kreus placed identity at issue. Thus, the trial court's denial of Kreus's motion to sever the counts does not justify reversal. See Lee, 189 Ariz. at 600, 944 P.2d at 1214. ¶18 Kreus also argues there was a possibility the jury inferred guilt as to the offenses against L.T. based upon evidence admitted to prove acts committed against J.A., or vice-versa. However, the jury was properly instructed that it was to consider each offense separately and the state had to prove each beyond a reasonable doubt. Because the jury is presumed to have followed the trial court's instructions, see Newell, 212 Ariz. 389, ¶ 68, 132 P.3d at 847, Kreus has not demonstrated "a compelling prejudice against which the trial court was unable to protect." Hausner, 230 Ariz. 60, ¶ 48, 280 P.3d at 619.
The court did grant Kreus's motion to sever two counts of prohibited possession of a firearm.
The state asserts Kreus has waived the severance issue for all but fundamental-error review because he failed to meet Rule 13.4(c)'s requirement to renew his motion "at or before close of the evidence" by waiting to renew it after the trial court gave the jury its final instructions and the state had delivered its closing argument. However, because Kreus renewed his motion before the jury retired to deliberate, we cannot say the court erred in finding it timely. State v. Betancourt, 107 Ariz. 212, 213, 484 P.2d 632, 633 (1971) (motion to sever untimely when made after jury had retired to deliberate); State v. Roper, 140 Ariz. 459, 461, 463, 682 P.2d 464, 466, 468 (App. 1984) (motion to sever timely renewed "before submission to the jury"). The issue therefore was adequately preserved for appeal.
Prosecutorial Misconduct
¶19 Kreus next argues the trial court erred in denying his motion for a new trial based on prosecutorial misconduct. He asserts the prosecutor "discouraged [the jury] from considering and weighing the evidence presented by . . . Kreus," and claims the prosecutor's rebuttal argument amounted to an improper accusation that Kreus had attempted to divert the jury from considering the evidence. He cites the prosecutor's multiple comments regarding Kreus's trial strategy, including his argument to the jurors:
[A]ll of the dissimilarities that the defense wants you to focus on is just an attempt to get you to forget about all the evidence, the DNA, the property, all of the evidence that points specifically to this defendant being the one that committed these crimes in an attempt . . . to hopefully [cause you to] forget some of the evidence or maybe even all of the evidence that points directly to this defendant . . . .¶20 "To prevail on a claim of prosecutorial misconduct, a defendant must demonstrate that the prosecutor's misconduct 'so infected the trial with unfairness as to make the resulting conviction a denial of due process.'" State v. Hughes, 193 Ariz. 72, ¶ 26, 969 P.2d 1184, 1191 (1998), quoting Donnelly v. DeChristoforo, 416 U.S. 637, 643 (1974). Counsel, however, has wide latitude in closing arguments, and "may comment on evidence and argue all reasonable inferences therefrom." State v. Dumaine, 162 Ariz. 392, 401, 783 P.2d 1184, 1193 (1989), disapproved on other grounds by King, 225 Ariz. 87, 235 P.3d 240. ¶21 Taken in context, the prosecutor's statements fairly responded to Kreus's argument that some other individual had committed the crimes and that the police failed to pursue pertinent leads. See State v. Moody, 208 Ariz. 424, ¶¶ 180-82, 94 P.3d 1119, 1159-60 (2004) (comments invited and prompted by opposing counsel's arguments not improper if reasonable and pertinent to issues raised). Additionally, the comments did not reference matters the jury could not properly consider. See State v. Lee, 189 Ariz. 608, 616, 944 P.2d 1222, 1230 (1997). Finally, the jury was instructed that arguments of counsel were not evidence. Based upon our review of the entire record, we cannot conclude the prosecutor's statements amounted to misconduct, much less infected the trial with any unfairness that could have affected the jury's verdict. See State v. Morris, 215 Ariz. 324, ¶ 46, 160 P.3d 203, 214 (2007). Willits Instruction ¶22 Kreus further contends the trial court erred in denying his request for a Willits instruction to assist the jury in evaluating a thirty-second gap in the audio-recording of J.A.'s fourth photographic lineup, coinciding with her identification of Kreus as her attacker. The court denied Kreus's request, finding he had failed to demonstrate that the evidence would have tended to exonerate him. We review the court's denial of a Willits instruction for an abuse of discretion. See State v. Speer, 221 Ariz. 449, ¶ 39, 212 P.3d 787, 795 (2009). ¶23 When evidence that might have tended to exonerate the defendant has been destroyed while in the state's possession, a defendant is entitled to an instruction that the jury may infer that the true fact is against the state's interest. State v. Perez, 141 Ariz. 459, 461, 464, 687 P.2d 1214, 1216, 1219 (1984). To justify the instruction, Kreus had the burden to demonstrate (1) "the state failed to preserve material and reasonably accessible evidence having a tendency to exonerate him" and (2) the failure to preserve the evidence resulted in prejudice. Speer, 221 Ariz. 449, ¶ 40, 212 P.3d at 795. ¶24 Kreus argues the trial court applied the wrong standard in ruling on the instruction, "because it believed that [he] must present evidence that the lost audio would be exculpatory," as opposed to that it "might have been exculpatory." In denying the instruction, the court stated Kreus was required to present "some evidence that the lost piece of evidence or destroyed piece of evidence that the defense feels is at issue in the case had to be exculpatory." The court then pointed out that because Kreus had provided no evidence of what was said during the missing seconds, it could not instruct the jury to assume the omission was unfavorable to the state. ¶25 We disagree with Kreus that this is a case of "destroyed" evidence; we would instead classify the state's actions here as failing to preserve evidence that is arguably material. Our supreme court has held that failure to obtain possession of material evidence, plus actual resulting prejudice, would require the court to give a Willits instruction. Perez, 141 Ariz. at 464, 687 P.2d at 1219; see also State v. Speer, 221 Ariz. 449, ¶ 40, 212 P.3d 787, 795 (2009). Here, the state presented evidence that during early 2010, the police department experienced technical difficulties during many video-recorded interviews, where audio would drop out intermittently or not record at all. There was no evidence that the state possessed an undamaged copy of the audio recording and destroyed or failed to disclose it, but only that the audio never was recorded entirely in the first place. In any event, we agree with the trial court that Kreus failed to demonstrate any prejudice from the state's failure to obtain the evidence. Though the lapse could have been avoided with the proper equipment, Kreus made no showing whatsoever that the missing portion would have had any tendency to exonerate him, or any effect on the verdicts involving J.A. See Perez, 141 Ariz. at 464, 687 P.2d at 1219. The trial court did not abuse its discretion in denying the instruction.
State v. Willits, 96 Ariz. 184, 393 P.2d 274 (1964).
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Lesser-Included Offense
¶26 Kreus lastly argues the trial court erred in denying his request to instruct the jury on disorderly conduct as a lesser-included offense of aggravated assault. Relying on State v. Lara, 183 Ariz. 233, 902 P.2d 1337 (1995), the court ruled that simple assault was a more appropriate lesser-included offense, based on the testimony presented at trial. ¶27 A lesser-included offense instruction is required only when the lesser offense is "'necessarily included in the offense charged, an attempt to commit the offense charged or an offense necessarily included therein, if such attempt is an offense," and the evidence supports giving the instruction. State v. Wall, 212 Ariz. 1, ¶ 13, 126 P.3d 148, 150 (2006), quoting Ariz. R. Crim. P. 23.3. The aggravated-assault charge alleged Kreus had intentionally placed J.A. in reasonable apprehension of imminent physical harm by use of a deadly weapon—a gun. See A.R.S. §§ 13-1203(A)(2), 13-1204(A)(2). Disorderly conduct, on the other hand, may be committed by intentionally or knowingly disturbing another person's peace and quiet by the reckless handling, display, or discharge of a deadly weapon or dangerous instrument. A.R.S. § 13-2904(A)(6). ¶28 Kreus asserts the jury could have found him guilty of disorderly conduct if it determined he did not intend to cause apprehension, but instead intended to disturb J.A.'s peace and quiet. But the perpetrator's intended result is not the only difference between the offenses. There was testimony that Kreus pointed the gun at J.A., but there was no evidence he displayed it recklessly and thus no basis for the jury to reasonably have found the mental state for disorderly conduct but not for assault. See A.R.S. § 13-105(10)(c) (recklessly means "person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists"). Moreover, "'[a]s a practical matter, . . . when a defendant asserts an all-or-nothing defense such as alibi or mistaken identity, there will "usually [be] little evidence on the record to support an instruction on the lesser included offenses."'" State v. Bearup, 221 Ariz. 163, ¶ 26, 211 P.3d 684, 690 (2009), quoting Wall, 212 Ariz. 1, ¶ 29, 126 P.3d at 153, quoting State v. Caldera, 141 Ariz. 634, 637, 688 P.2d 642, 645 (1984) (third alteration in Wall) (addressing unlawful imprisonment as lesser-included offense of kidnapping). We find no error in the court's refusal to instruct the jury on the elements of disorderly conduct.
Disposition
¶29 Based on the foregoing, Kreus's convictions and sentences are affirmed.
____________________________
PHILIP G. ESPINOSA, Judge
CONCURRING: ____________________________
GARYE L. VÁSQUEZ, Presiding Judge
____________________________
VIRGINIA C. KELLY, Judge