Opinion
No. 1 CA-CR 11-0238
02-28-2012
STATE OF ARIZONA, Appellee, v. CALVIN MANHEIMER, Appellant.
Thomas Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section Adriana M. Zick, Assistant Attorney General Attorneys for Appellee H. Allen Gerhardt, Jr., Coconino County Public Defender by H. Allen Gerhardt, Jr., Public Defender 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(Not for Publication -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
Arizona Supreme Court)
Appeal from the Superior Court in Coconino County
Cause No. S0300CR201000821
The Honorable Jacqueline Hatch, Judge
AFFIRMED
Thomas Horne, Arizona Attorney General
by Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
Adriana M. Zick, Assistant Attorney General
Attorneys for Appellee
Phoenix
H. Allen Gerhardt, Jr.,
Coconino County Public Defender
by H. Allen Gerhardt, Jr., Public Defender
Attorneys for Appellant
Flagstaff TIMMER, Judge
¶1 Around 9:30 p.m. on September 3, 2009, Irene M. was looking out the door of her home in Flagstaff when she noticed her husband Refino's pickup truck "rolling." She alerted Refino, who immediately ran outside and saw the truck travel until it crashed into his neighbor's mailbox about thirty feet from the original parking spot. A man, later identified as appellant Calvin Manheimer, then exited the truck and staggered away out of Refino's sight. The police eventually arrested Manheimer, and a blood test later established he had a blood alcohol concentration of 0.294.
¶2 On March 2, 2011, a jury found Manheimer guilty of one count of attempted theft of means of transportation, a Class four felony, two counts of misdemeanor driving while under the influence, and one count of misdemeanor extreme driving under the influence. Manheimer appeals, arguing the trial court committed reversible error by denying his motion for judgment of acquittal pursuant to Arizona Rule of Criminal Procedure ("Rule") 20 on the attempted theft of means of transportation charge and by failing to instruct the jury sua sponte on unlawful use of means of transportation as a lesser-included offense of the attempted theft charge. For the reasons that follow, we disagree and therefore affirm.
DISCUSSION
I. Denial of Rule 20 motion
¶3 To secure a conviction for attempted theft of means of transportation, the State was required to prove beyond a reasonable doubt that Manheimer (1) intentionally engaged in conduct, (2) without lawful authority, (3) designed to control Refino's truck, (4) with the intent to permanently deprive Refino of it. Ariz. Rev. Stat. ("A.R.S.") §§ 13-1001, -1814(A)(1) (West 2012). After the State rested, Manheimer moved for a judgment of acquittal on this charge, arguing the State had failed to present any evidence he acted with the intent to permanently deprive Refino of his truck. Defense counsel argued the evidence only showed Manheimer was "in the vehicle," which was consistent with an intention to "burglarize the vehicle," commit "simple trespass," or commit "unauthorized use." Counsel pointed out there was no basis upon which to infer intent to commit theft except Manheimer's presence in the truck when it rolled into the mailbox. The prosecutor responded Manheimer's intent to commit theft was established by evidence he "was moving the vehicle, . . . was operating it, and . . . was trying to get it away from the residence where it was parked." The trial court denied Manheimer's motion, ruling the jury should decide whether the evidence established the charge.
Absent material revisions after the date of an alleged offense, we cite to a statute's current Westlaw version.
¶4 The trial court properly denied the Rule 20 motion unless no substantial evidence warranted a conviction. State v. Hall, 204 Ariz. 442, 454, ¶ 49, 65 P.3d 90, 102 (2003). Substantial evidence is evidence that "reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt." State v. Davolt, 207 Ariz. 191, 212, ¶ 87, 84 P.3d 456, 477 (2004). If reasonable persons could fairly debate whether evidence supports a particular fact, that evidence is "substantial." Id.
¶5 When determining the sufficiency of the evidence underlying a trial court's Rule 20 ruling, we view the evidence in the light most favorable to sustaining the verdict and resolve all inferences against the defendant. Id. The issue is "whether, based on the evidence presented, rational factfinders could find guilt beyond a reasonable doubt." State v. Fulminante, 193 Ariz. 485, 493, ¶ 24, 975 P.2d 75, 83 (1999).
¶6 Manheimer contends the trial court abused its discretion by denying the Rule 20 motion because although the State proved trespassing, it failed to demonstrate he intended to permanently deprive Refino of the truck. Specifically, he asserts the fact that keys were not in the ignition supported a finding he "may have been drunk and looking for a place to sleep, but he was not trying to steal a truck and permanently deprive the owner of the truck." We disagree.
¶7 Manheimer entered Refino's truck in the dark of night without permission. With Manheimer sitting upright in the driver's seat, the truck rolled down an incline for approximately twenty to thirty feet and stopped only when it hit the mailbox. Manheimer then got out and left the area. Refino testified that although he had left the truck's gear shift in the "reverse" position to park, he observed the gear shift in neutral after the truck crashed into the mailbox.
¶8 This evidence permitted the jury to find that Manheimer purposefully shifted the truck into neutral to allow it to roll down the incline and away from the area, thereby evidencing an intention to permanently deprive Refino of the truck. No evidence suggested Manheimer was sleeping in the truck. He was sitting upright in the driver's seat at the time of the crash and immediately exited the truck upon its sudden stop. Although Manheimer's plan may have been ill-fated from inception due to the lack of keys or other means to start the truck, the jury was entitled to infer Manheimer intended to permanently deprive Refino of the truck by shifting the truck into neutral on the incline. State v. Anaya, 165 Ariz. 535, 543, 799 P.2d 876, 884 (App. 1990) (concluding circumstantial evidence that supports differing yet reasonable inferences is sufficient to defeat motion for directed verdict). The trial court did not abuse its discretion by denying the Rule 20 motion.
II. Jury instruction
¶9 Manheimer argues the trial court committed reversible error by failing to instruct the jury sua sponte on unlawful use of means of transportation pursuant to A.R.S. § 13-1803(A)(1) as a lesser-included offense of attempted theft of means of transportation. Because Manheimer failed to request the instruction at trial, he has waived this alleged error absent fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Fundamental error is that which goes to the foundation of the defendant's case or takes "'a right essential to his defense'" such that he "'could not possibly have received a fair trial.'" Id. (quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984)). In addition to demonstrating that fundamental error occurred, the defendant must also establish it caused him prejudice. Id. at ¶ 20. To determine whether error is fundamental, "we look to the entire record and to the totality of the circumstances." State v. Hughes, 193 Ariz. 72, 86, ¶ 62, 969 P.2d 1184, 1198 (1998).
Section 13-1803(A)(1) provides: "A person commits unlawful use of means of transportation if, without intent permanently to deprive, the person . . . knowingly takes unauthorized control over another person's means of transportation."
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¶10 Even assuming the evidence supported an instruction for unlawful use of means of transportation, the court's failure to give the instruction did not deprive Manheimer of a right essential to his defense. From the outset, Manheimer's defense at trial was that Refino had mistakenly identified him as the person who rolled the truck into the mailbox and then staggered away. He informed the police at the time of his arrest that he had not been in the truck. He therefore sought acquittal on all charges, including the ones for DUI. Because an instruction on unlawful use of means of transportation was not essential to Manheimer's mistaken-identity defense, he was not deprived of a fair trial, and the trial court did not commit fundamental error by failing to give the instruction sua sponte.
¶11 We are not persuaded to reach a different result in light of defense counsel's challenges to the sufficiency of the evidence to prove intent to permanently deprive Refino of his truck. During argument on the Rule 20 motion, and later in closing argument, defense counsel asserted the evidence supported a finding that the person spotted in the truck could have accidentally knocked the gear into neutral or intended only to take the truck for a temporary joyride. These alternative explanations for the truck's movement were raised in the abstract, however, and defense counsel never argued Manheimer accidentally shifted the truck into neutral or intended to go for a joyride. Indeed, counsel consistently asserted Manheimer was not present in the truck, but stated during closing argument that, "[w]hoever was in the truck, we don't know why that person got in the truck, and we don't have any way of knowing why that person got in the truck." Manheimer's argument that alternate explanations existed for the unknown person's presence in the truck was not sufficient to make an instruction on unlawful use of means of transportation essential to Manheimer's mistaken-identity defense. See State v. Bearup, 221 Ariz. 163, 169, ¶¶ 26-27, 211 P.3d 684, 690 (2009) (noting that a defendant asserting a mistaken-identity defense is generally not entitled to an instruction on a lesser-included offense).
CONCLUSION
¶12 For the foregoing reasons, we affirm Manheimer's convictions and sentences.
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Ann A. Scott Timmer, Judge
CONCURRING:
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Patricia K. Norris, Presiding Judge
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Margaret H. Downie, Judge