Opinion
No. 1 CA-CR 13-0199
02-04-2014
STATE OF ARIZONA, Appellee, v. THOMAS KEITH BUSTOS, Appellant.
Arizona Attorney General's Office, Phoenix By Joseph T. Maziarz Counsel for Appellee Craig Williams, Attorney at Law, PLLC, Prescott Valley By Craig Williams Counsel for Appellant
NOTICE: NOT FOR PUBLICATION.
UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT
AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.
Appeal from the Superior Court in Yavapai County
No. V1300CR201280071
The Honorable Jennifer B. Campbell, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee
Craig Williams, Attorney at Law, PLLC, Prescott Valley
By Craig Williams
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kent E. Cattani delivered the decision of the Court, in which Judge Margaret H. Downie and Judge Diane M. Johnsen joined. CATTANI, Judge:
¶1 Thomas Keith Bustos appeals his convictions and sentences for kidnapping, burglary, fear of safety, aggravated assault, and robbery. For reasons that follow, we affirm.
FACTS AND PROCEDURAL BACKGROUND
We view the facts in the light most favorable to upholding the jury's verdicts. State v. Kindred, 232 Ariz. 611, 613, ¶ 2, 307 P.3d 1038, 1040 (App. 2013).
¶2 Bustos began a romantic relationship with the victim, M.E., in September 2006 while continuing in a relationship with his ex-wife, D.C., who lived in Texas. The two women were unaware of each other; Bustos was a long-haul truck driver, which enabled him to maintain relationships in different cities.
¶3 When Bustos's relationship with D.C. ended, he moved more of his personal items to M.E.'s house, and he became controlling and aggressive with her. M.E. broke up with Bustos, but took him back at some point. At the same time, Bustos maintained contact with D.C. and was attempting to reconcile with her.
¶4 D.C. learned about M.E. through Bustos's cell phone records, and in January 2012, D.C. asked her sister to call M.E. to see if she would be willing to talk to D.C. M.E. had suspected that Bustos was having a romantic relationship with his ex-wife or someone else, but she was not certain until D.C.'s sister called.
¶5 M.E. spoke with D.C.; both women had independently decided they did not want anything more to do with Bustos. M.E. subsequently called Bustos to formally end their relationship, and she told him she did not want to talk to him again. Bustos continued to call and text her, and M.E. subsequently changed her phone number.
¶6 On January 22, 2012, M.E. came home and found an envelope with Bustos's handwriting on it taped to her back patio door. M.E. called the Camp Verde Marshall's Office, and a deputy came to her house and spoke with her. M.E. gave the deputy Bustos's cell phone number, and the deputy contacted Bustos and informed him M.E. did not want him at her house, and that if he returned, he would be arrested for trespassing.
¶7 On the evening of February 10, 2012, M.E. returned home from work and pulled into her garage. As M.E. retrieved her trash can from the end of her driveway, she received a call from D.C. She was still talking to D.C. on her cell phone when she returned to her car to get her purse and keys. Bustos suddenly appeared and grabbed the phone from M.E.'s hand, pulled her from the car, threw her on the floor, and shut the garage door with a remote control. D.C. heard M.E. scream, then the call disconnected.
¶8 Bustos threatened to shove pills down M.E.'s throat if she did not stop screaming, and he told her she was going to pay for "ruining" his life. Bustos stated that "[m]aybe we'll go for a ride and then nobody will ever see you again." Bustos tried to bind M.E.'s hands behind her back with a plastic cord from a bug sprayer and then with a lamp cord. He also tried to put a blanket in her mouth and placed one hand around her throat and his other hand over her mouth and nose.
¶9 Meanwhile, after their call was disconnected, D.C. called M.E. back several times, leaving a message that she was going to call the police. She had her step-daughter call 911 while she continued trying to call M.E.
¶10 Law enforcement officers responded to the 911 call and heard M.E. screaming inside the garage. Bustos did not respond to the officers' banging on the garage door, but released M.E. when he heard the officers break the glass out of a garage window. Bustos opened the garage door and ran across the driveway and through a neighbor's yard before officers subdued him.
¶11 In February 2012, a grand jury indicted Bustos for attempted first-degree murder, a class 2 felony (Count 1); kidnapping, a class 2 felony (Count 2); armed burglary, a dangerous class 2 felony (Count 3); aggravated stalking, a class 3 felony (Count 4); aggravated assault with a deadly weapon, a class 3 felony (Count 5); aggravated assault, a class 4 felony (Count 6); two counts of aggravated assault, class 6 felonies (Counts 7 and 8); robbery, a class 4 felony (Count 9); theft, a class 6 felony (Count 10); and two counts of resisting arrest, class 6 felonies (Counts 11 and 12).
¶12 Sometime thereafter, M.E. received a copy of the deputy's report and saw a notation that she had told him that Bustos "may have tried to wrap the power cord around her neck at one point to strangle her." M.E. called one of the deputies and informed him that the report was inaccurate in that respect—Bustos had not attempted to strangle her with the electrical cord.
¶13 The case proceeded to trial, and at the close of the State's case-in-chief, the trial court and the parties agreed that there was insufficient evidence to submit a dangerous nature allegation to the jurors on the relevant counts. The trial court granted Bustos's motion for directed verdict on Count 5 (aggravated assault with an electrical cord) and Count 10 (theft of M.E.'s cell phone), but withheld ruling on Bustos's motion for directed verdict on Count 3 (first-degree burglary). The court stated that it was inclined to submit the lesser-included offense of second-degree burglary to the jurors, but would afford Bustos the opportunity to submit authority for his assertion that it was legally impermissible to do so.
¶14 The State submitted a brief regarding lesser-included offenses, but Bustos did not. The court ruled that it would instruct the jury on the lesser-included offense of second-degree burglary, and then directed a verdict for Bustos on first-degree burglary. The jurors convicted Bustos of the charged offenses on Counts 2, 6, 7, 8, 9 and of the instructed offense (second-degree burglary) on Count 3 and the lesser-included offense (fear of life) on Count 4. The jurors found him not guilty of attempted first-degree murder (Count 1) and resisting arrest (Counts 11 and 12). The court sentenced Bustos to concurrent terms of imprisonment, the longest of which is five years, to be followed by 10 years' probation on release.
¶15 Bustos 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.
Absent material revisions after the relevant date, we cite a statute's current version unless otherwise indicated.
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DISCUSSION
¶16 Bustos argues that the superior court erred by submitting the lesser-included offense of second-degree burglary to the jury after directing a verdict on first-degree armed burglary (Count 3). He asserts that this alleged error violated his right to due process and affected his entire trial. Bustos thus requests that the case be remanded for a new trial, or alternatively, that Count 3 be dismissed. Bustos is not entitled to relief, however, because when he was charged with first-degree burglary, he was effectively charged with all necessarily included offenses, including second-degree burglary. Thus, there was no due process violation or any other error warranting relief.
¶17 Whether an offense is a lesser-included offense of another, and whether the lesser-included offense may be submitted to jurors when there is insufficient evidence to submit the charged offense, are questions of law subject to de novo review on appeal. State v. Cheramie, 218 Ariz. 447, 448, ¶¶ 7-8, 189 P.3d 374, 375 (2008); State v. Hines, 232 Ariz. 607, 610, ¶ 8, 307 P.3d 1034, 1037 (App. 2013).
¶18 Under Arizona Rule of Criminal Procedure 13.2(c), "[s]pecification of an offense in an indictment . . . shall constitute a charge of that offense and of all offenses necessarily included therein." This provision requires the State to specify only the most serious degree of an offense, which automatically includes all necessarily included offenses within the charge and "clarifies the prosecutor's right to request instructions as to necessarily included offenses." Ariz. R. Crim. P. 13.2(c) cmt. A necessarily included offense is a lesser-included offense supported by the evidence presented at trial. Hines, 232 Ariz. at 610, ¶ 9, 307 P.3d at 1037.
¶19 This court utilizes two alternative tests to determine if an offense is a lesser-included offense: the "elements" test and the "charging documents" test. Id. at ¶ 10. Under the elements test, a lesser-included offense is one that is composed of some, but not all, of the elements of the greater offense such that it is impossible to have committed the charged crime without having committed the lesser one. Id. Under the charging documents test, an offense is a lesser-included offense, even though it would not always form part of the greater offense, when the lesser-included offense is described by the charging document. Id. Here, we need only address the elements test, which is dispositive.
¶20 Bustos was charged with burglary under A.R.S. § 13-1508(A), which provides that "[a] person commits burglary in the first degree if such person or an accomplice violates the provisions of either § 13-1506 or 13-1507 [the burglary in the second degree statute] and knowingly possesses explosives, a deadly weapon or a dangerous instrument in the course of committing any theft or any felony." Section 13-1507(A) provides that "[a] person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein."
¶21 Because armed burglary under § 13-1508 has all the elements of second-degree burglary under § 13-1507, with one additional element of the knowing possession of a dangerous instrument, Bustos could not have committed armed burglary without having committed second-degree burglary. See Hines, 232 Ariz. at 610, ¶ 10, 307 P.3d at 1037. Accordingly, second-degree burglary is a lesser-included offense of armed burglary.
¶22 The trial court did not err by instructing the jurors on the lesser-included offense of second-degree burglary. See id. at 611, ¶ 15, 307 P.3d at 1038; State v. Tschilar, 200 Ariz. 427, 436-37, ¶ 39, 27 P.3d 331, 340-41 (App. 2001) ("An instruction on a lesser-included offense must be given if the jury could rationally find that the State failed to prove the distinguishing element of the greater offense."); see also Ariz. R. Crim. P. 23.3 cmt. ("Rules 13.2(c) and 23.3 make clear that the prosecutor, as well as a defendant, is entitled to an instruction on any offense for which there is evidentiary support and for which a verdict form is submitted to the jury."). Here, M.E. testified at trial that Bustos used a lamp cord to try to bind her hands, but did not attempt to strangle her with the cord as had been stated in the police report. Accordingly, the trial court did not abuse its discretion by concluding there was insufficient evidence that Bustos committed residential burglary with a dangerous instrument. See A.R.S. § 13-1508(A). As such, the court properly directed a verdict on the armed burglary charge, while instructing the jurors on the lesser-included charge of second-degree burglary.
¶23 Bustos argues that he is entitled to relief under State v. Kelly, 123 Ariz. 24, 26, 597 P.2d 177, 179 (1979), in which the Arizona Supreme Court ruled that the court erred by permitting the State to amend an indictment for armed robbery to simple robbery. But the Arizona Supreme Court also ruled that the error was harmless, because robbery is a lesser-included offense of armed robbery, and "the court could have instructed on the lesser included offense of robbery and given the jury a form of verdict for robbery even though the indictment charged armed robbery." Id.
¶24 Bustos further alleges that submitting the lesser-included instruction to the jurors violated his due process right to know the charges against him under the Sixth Amendment of the U.S. Constitution and Article 2, Section 4 of the Arizona Constitution. But Bustos's indictment provided him with notice of the charge of the necessarily included offense of second-degree burglary. Moreover, the indictment even listed A.R.S. § 13-1507 (the second-degree burglary statute) as one of the statutes under which he was being indicted. Accordingly, the trial court did not err by submitting the lesser-included offense of second-degree burglary to the jurors after directing a verdict on armed burglary.
CONCLUSION
¶25 For the foregoing reasons, we deny Bustos's request for a new trial or for dismissal of Count 3, and we affirm all of his convictions and sentences.