No. 1 CA-CR 13-0712
COUNSEL Arizona Attorney General's Office, Phoenix By Craig W. Soland Counsel for Appellee Office of the Legal Advocate, Phoenix By Frances J. Gray Counsel for Appellant
NOTICE: NOT FOR PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(C), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED. Appeal from the Superior Court in Maricopa County
The Honorable Christine E. Mulleneaux, Commissioner
COUNSEL Arizona Attorney General's Office, Phoenix
By Craig W. Soland
Counsel for Appellee
Office of the Legal Advocate, Phoenix
By Frances J. Gray
Counsel for Appellant
Presiding Judge Jon W. Thompson delivered the decision of the Court, in which Judge Donn Kessler and Judge Kent E. Cattani joined. THOMPSON, Judge:
¶1 Guy Stephan Soltesz (defendant) appeals his conviction for criminal trespass in the first degree. The issues on appeal are whether the trial court committed fundamental error by not instructing the jury on the limited use of defendant's three felony convictions and by failing to provide a verdict form to the jury for misdemeanor trespass. We find no fundamental error and affirm defendant's conviction and sentence.
FACTS AND PROCEDURAL HISTORY
¶2 Late at night on November 29, 2012, B.L. was inside his mother's home watching television when he remembered that he had left the garage door open and his wallet in his car. As he opened the door leading to the garage, B.L. noticed that the motion sensor garage light was on. He saw defendant and another man standing in the garage. The two men promptly turned and ran from the garage to a truck parked a few houses down.
¶3 The truck took off down the street and B.L. pursued in his vehicle and called 9-1-1. B.L. chased the truck for approximately ten to fifteen minutes, and the truck stopped. Defendant stayed with the truck, but the second man ran away. Police arrived and B.L. identified defendant as one of the men who had been in his garage.
¶4 The state charged defendant with criminal trespass in the first degree, a class 6 felony. The jury convicted defendant as charged and found three aggravating factors. The trial court found three mitigating factors and that defendant had three prior felony convictions. The court sentenced defendant to a presumptive term of 3.75 years with fifty-four days of presentence incarceration credit. Defendant timely appealed. This court has jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A) (2003) and 13-4031 (2010).
¶5 Defendant first argues that the trial court committed fundamental error by not instructing the jury on the limited use of defendant's prior convictions. In this case, defendant elected to testify, thereby subjecting himself to impeachment, but he failed to request a limiting instruction. Because this issue was not raised in the trial court, we review for fundamental error. See State v. Turner, 141 Ariz. 470, 474, 687 P.2d 1225, 1229 (1984). "To prevail under this standard of review, a defendant must establish both that fundamental error exists and that the error in his case caused him prejudice." State v. Henderson, 210 Ariz. 561, 567, ¶ 20, 115 P.3d 601, 607 (2005). "Error is fundamental when it reaches the foundation of the case or takes from the defendant a right essential to his defense, or is an error of such dimensions that it cannot be said it is possible for a defendant to have had a fair trial." State v. King, 158 Ariz. 419, 424, 763 P.2d 239, 244 (1988) (citations omitted). To demonstrate prejudice a defendant must show that a reasonable jury could have come to a different result. Henderson, 210 Ariz. at 568-69, ¶¶ 26-27, 115 P.3d at 608-09.
¶6 The failure of the court to sua sponte give a limiting instruction to the jury on a defendant's prior convictions is not fundamental error. State v. Taylor, 127 Ariz. 527, 529-530, 622 P.2d 474, 476-77 (1980). Defendant attempts to distinguish Taylor on the basis that in that case the court instructed the jurors with Revised Arizona Jury Instructions (RAJI) Standard Criminal 5(a) at the defendant's request and there was no Rule 609 hearing, while in the instant case the jurors were not instructed on the use of prior convictions, and there was a Rule 609 hearing, which put the court on notice that prior convictions would be used to impeach defendant. See Taylor, 127 Ariz. at 529, 622 P.2d at 476. We find these procedural distinctions unpersuasive. "It has long been the rule in this jurisdiction that unless . . . a request for an instruction is made, error cannot be predicated on . . . the failure to give such an instruction." State v. Francis, 91 Ariz. 219, 222, 371 P.2d 97, 99 (1962); see also State v. Polan, 80 Ariz. 129, 133, 293 P.2d 931, 934 (1956); Burgunder v. State, 55 Ariz. 411, 421, 103 P.2d 256, 261 (1940). Because defendant has not established error, we need not decide if the alleged error was prejudicial.
Defendant briefly argues in his opening brief that "the State improperly argued [defendant's] convictions as propensity evidence." Defendant provides no legal authority to support this contention and it is therefore waived. See State v. Carver, 160 Ariz. 167, 175, 771 P.2d 1382, 1390 (1989).
¶7 Defendant next argues that the trial court committed fundamental error by failing to provide a verdict form for the lesser included offense of misdemeanor trespass after instructing the jury on the offense. Because defendant did not object to the verdict form and did not request a verdict form that included this lesser offense, we review for fundamental error and prejudice. See State v. Nordstrom, 200 Ariz. 229, 253, ¶ 81, 25 P.3d 717, 741 (2001), abrogated on other grounds by State v. Ferrero, 229 Ariz. 239, 274 P.3d 509 (2012).
¶8 Section 13-1504(A) (2010) provides, in relevant part, that a defendant may be convicted of criminal trespass in the first degree for either knowingly entering unlawfully a residential structure or a fenced residential yard. Entering a residential structure is a class 6 felony, but entering a fenced residential yard is a class 1 misdemeanor. A.R.S. § 13-1504(B) (2010). Defendant argues that misdemeanor trespass is a lesser included offense of felony trespass and should have been submitted to the jury. We disagree.
Defendant argues that knowingly entering a fenced residential yard unlawfully is a lesser included offense of knowingly entering a residential structure unlawfully.
¶9 Arizona Rule of Criminal Procedure 23.3 states that "[f]orms of verdicts shall be submitted to the jury for all offenses necessarily included in the offense charged . . . ." A necessarily included offense is only a lesser included offense when the evidence is sufficient to support the offense. State v. Wall, 212 Ariz. 1, 3, ¶ 14, 126 P.3d 148, 150 (2006). A lesser included offense is an offense that must be committed in the process of committing the greater offense. Id. Here, that is not the case. Entering a residential structure unlawfully does not require that one enter a fenced residential yard. Not all residential structures have fenced residential yards. Therefore, misdemeanor trespass is not a lesser included offense nor necessarily included offense of felony trespass and is not required to be submitted to the jury as a verdict form.
¶10 Defendant further argues that failure to provide a verdict form for misdemeanor trespass is fundamental error because the jury was precluded from "understanding and discharging their duty as finders of fact." We disagree. The evidence presented at trial could not reasonably confuse the jury. B.L. testified that he "noticed there were two people in [the] garage." (emphasis added) Defendant's sole defense at trial was that he remained in his truck the whole time, never entering any portion of the property. Furthermore, defendant's counsel cleared up any confusion the jury may have had in her closing argument by premising the defendant's guilt solely on whether the defendant was in the garage or not, with no reference to a yard. See State v. Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989) ("Closing arguments of counsel may be taken into account when assessing the adequacy of jury instructions."). Therefore, the lack of a verdict form for misdemeanor trespass could not have confused the jury, did not prejudice defendant, and did not deprive him of his right to a fair trial. See King, 158 Ariz. at 424, 763 P.2d at 244.
¶11 Defendant's final argument is that instructing a jury on misdemeanor trespass without providing a verdict form amounted to instructing the jury on a non-existent theory of criminal liability, a fundamental error. See State v. James, 231 Ariz. 490, 493, ¶ 13, 297 P.3d 182, 185 (App. 2013). In making this assertion, defendant relies upon James, which concluded that an instructional error significantly lowering the state's burden of proof was fundamental error. See id. at 493-94, ¶¶ 9-14, 297 P.3d at 185-86. "Given the case-specific nature of the inquiry . . . [defendant] must show the error was fundamental in light of the facts and circumstances of this case, recognizing that the same error may be fundamental in one case but not in another." Id. at 493, ¶ 13, 297 P.3d at 185 (citation omitted).
¶12 Unlike James, in this case the instructional error did not lower the state's burden of proof. There were no relevant facts to support a verdict for misdemeanor trespass, misdemeanor trespass is not a lesser included offense of felony trespass, and misdemeanor trespass was not a "hotly contested" issue. See id. at 493-94, ¶¶ 14-16, 297 P.3d at 185-86. The error did not go to the foundation of defendant's case, did not take away an essential right to his defense, nor make it impossible for defendant to have a fair trial; making this error harmless, not fundamental. See King, 158 Ariz. at 424, 763 P.2d at 244; see also State v. McVay, 127 Ariz. 450, 453, 622 P.2d 9, 12 (1980) (defining harmless error as "error . . . [that] had no influence on the verdict of the jury"). Defendant was not prejudiced by the failure to provide a jury form for misdemeanor trespass. Defendant did not rely upon the theory of misdemeanor trespass, and no reasonable juror would have changed his or her mind regarding the charged offense in light of the lack of evidence supporting misdemeanor trespass. See Henderson, 210 Ariz. at 568-69, ¶¶ 26-27, 115 P.3d at 608-09.
Misdemeanor trespass was never brought up at trial, and defendant did not object to the proposed jury instructions.
¶13 For the forgoing reasons, we affirm defendant's conviction and sentence for criminal trespass in the first degree, a class 6 felony.