Opinion
No. 1 CA-CR 19-0512
11-24-2020
STATE OF ARIZONA, Appellee, v. DELBERT BRUCE BROWN, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Jana Zinman Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Margaret M. Green Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
Appeal from the Superior Court in Maricopa County
No. CR2018-139462-001
The Honorable Katherine M. Cooper, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Jana Zinman
Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix
By Margaret M. Green
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Jennifer M. Perkins delivered the decision of the Court, in which Judge David B. Gass and Judge Michael J. Brown joined.
PERKINS, Judge:
¶1 Delbert Bruce Brown appeals his conviction for burglary in the third degree. We affirm.
FACTS AND PROCEDURAL BACKGROUND
¶2 In August 2018, grand jurors indicted Brown for one count of burglary in the third degree, a class 4 felony. The State later alleged, as an aggravating circumstance, that Brown was on probation for a felony when the crime occurred. At trial, the superior court instructed the jury, both orally and in writing, with preliminary jury instructions that included a complete reasonable doubt instruction defining the concept of reasonable doubt. The court's final jury instructions, again provided both orally and in writing, once more included the complete reasonable doubt instruction. The jury found Brown guilty as charged.
¶3 During the aggravation phase, the superior court instructed the jury, both orally and in writing, that the State must prove the aggravating circumstance beyond a reasonable doubt. These instructions, however, did not repeat the earlier definition of reasonable doubt. The court's instructions stated:
[Y]ou must start with the presumption that the aggravating circumstance is not proven. The State must present evidence to prove an aggravating circumstance beyond a reasonable doubt. If you conclude that the State has not met its burden of proof beyond a reasonable doubt, then you must find the alleged aggravating circumstance not proven. . . . You must follow these jury instructions. You may also rely on the jury instructions that were read and given to you earlier. . . . Again, the State has the burden
of proving any aggravating circumstances beyond a reasonable doubt.
¶4 The State presented the testimony of a Maricopa County Adult Probation Officer, who testified that she served as Brown's probation officer. She further testified that Brown was on probation when he committed burglary in August 2018.
¶5 Before deliberations, the superior court did not orally reinstruct the jurors on the definition of reasonable doubt. But the verdict form provided during deliberations explicitly required the jury to reach its conclusion beyond a reasonable doubt and the jury retained the earlier provided written instructions. The jury found the aggravating circumstance proven beyond a reasonable doubt. The superior court sentenced Brown to the presumptive term of ten years imprisonment, adding no time based on aggravation, with 33 days of presentence incarceration credit. Brown timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).
DISCUSSION
¶6 The trial court must instruct jurors on their responsibilities and duties. Ariz. R. Crim. P. 18.6(c). Among the crucial instructions a jury must receive before deliberations is an instruction regarding the State's burden to prove each element of each charged crime beyond a reasonable doubt. State v. Johnson, 173 Ariz. 274, 275-76 (1992). And our supreme court has clarified that a complete reasonable doubt instruction must include a specific definition of what constitutes reasonable doubt. See State v. Portillo, 182 Ariz. 592, 596 (1995) (setting forth the required reasonable doubt instruction).
¶7 Brown argues the superior court committed error that was both fundamental and structural by failing to repeat the definition of reasonable doubt during the aggravation phase of his trial. He does not argue the court provided deficient instructions during the guilt phase.
¶8 We apply three types of review to alleged superior court errors in criminal cases (structural, fundamental, and harmless) depending on the nature of the allegation, but "[r]egardless of how an alleged error ultimately is characterized . . . a defendant on appeal must first establish that some error occurred." State v. Diaz, 223 Ariz. 358, 360, ¶ 11 (2010). The court provided the complete Portillo instructions orally and in writing multiple times in the guilt phase. In the aggravation phase the court
reminded the jury of the appropriate standard while pointing back to the earlier instructions. The court did not err. Because no error occurred, we need not determine what type of review applies.
CONCLUSION
¶9 We affirm.