Opinion
No. 1 CA-CR 15-0488
12-20-2016
STATE OF ARIZONA, Appellee, v. PERCY LEE COLLINS, JR., Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Eric Knobloch Counsel for Appellee Maricopa County Public Defender's Office, Phoenix By Christopher Johns 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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. CR2014-128021-001
The Honorable Pamela Hearn Svoboda, Judge
AFFIRMED
COUNSEL Arizona Attorney General's Office, Phoenix
By Eric Knobloch
Counsel for Appellee Maricopa County Public Defender's Office, Phoenix
By Christopher Johns
Counsel for Appellant
MEMORANDUM DECISION
Judge Patricia A. Orozco delivered the decision of the Court, in which Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined. OROZCO, Judge:
¶1 Percy Lee Collins, Jr. (Defendant) appeals his convictions and sentences for one count each of organized retail theft and theft. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
We view the facts in the light most favorable to upholding the verdicts and resolve all reasonable inferences against the defendant. State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493, 495 (App. 1996)).
¶2 Defendant exited a Staples store with three video games from the store's display without paying for them. He then walked to a neighboring Wal-Mart and "returned" two of the games in exchange for a Wal-Mart gift card. Using the card, Defendant purchased candy, potato chips, and a saw. After Defendant left Wal-Mart and drove away, City of Scottsdale Detectives M. and W. initiated a traffic stop and arrested him. Upon searching Defendant's vehicle, W. found the third video game matching the description of the games that were reported missing by a Staples' manager.
¶3 In connection with the Staples incident, the State charged Defendant with one count of organized retail theft pursuant to Arizona Revised Statutes (A.R.S.) section 13-1819.A.1 (West 2016), a class four felony (Count 1), and, regarding the Wal-Mart transactions, one count of theft, a class one misdemeanor (Count 2). The jury found Defendant guilty as charged. The court imposed ten years' incarceration for Count 1 and sentenced Defendant to time served for Count 2. After the court permitted him to do so, Defendant timely filed a delayed notice of appeal. We have jurisdiction pursuant to A.R.S. §§ 12-120.21.A.1, 13-4031, and -4033.A.1.
Absent material changes from the relevant date, we cite a statute's current version.
DISCUSSION
I. Impasse Instruction
¶4 As it deliberated, the jury notified the court that it could not come to a unanimous decision on Count 2. Without objection, the court gave the Impasse Instruction.
¶5 After further deliberations, the jury notified the court: "On Count #2 all jurors agree about what occured [sic]. We disagree on the charge of theft vs. fraud." In response, the court instructed: "The jury is directed to the elements of Count 2 and then decide whether the defendant is guilty or not guilty based on those elements." Almost immediately thereafter, the jury informed the court:
Someone thinks that because the items at Walmart were not stolen based on the fact that no matter how they obtain the "funds" that the item was still purchased making it lawful. Also that if the funds are not valid then it would be a matter other than theft (references fraud instead). Even though explained the definition of theft and how it does relate, how do we move forward?
¶6 The court consulted the parties, and, without objection, responded to the jury's question as follows: "Please reference the last answer regarding the elements of Count 2. If the jury still remains at an impasse (not unanimous) then please advise." After deliberating for approximately twenty minutes, the jury returned guilty verdicts on both counts. The court polled the jury, and each juror affirmed the verdicts.
¶7 Relying primarily on State v. Rodriguez-Rosario, 219 Ariz. 113 (App. 2008), Defendant argues that the court's responses to the jury questions coerced the verdict on Count 2, and points to the jury's lack of time spent deliberating after the court responded to the final jury question as indicating the court's improper coercion. Specifically, based on the last question's reference to "someone," Defendant contends the court—by repeating its admonition to the jury to focus on the elements in Count 2—improperly pressured the holdout juror to agree with the other jurors in rendering a guilty verdict. Defendant argues the court should have declared a mistrial as to Count 2 instead of responding as it did.
¶8 Defendant did not object to the court's responses to the jury questions, nor did he request a mistrial; thus, our review on appeal is for fundamental error. See Ariz. R. Crim. P. (Rule) 21.3.c; State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). Improperly influencing or coercing a jury verdict is fundamental error requiring reversal. State v. Lautzenheiser, 180 Ariz. 7, 10 (1994). In response to a jury question during deliberations, the decision to refer the jury to an earlier instruction is reviewed for abuse of discretion. State v. Ramirez, 178 Ariz. 116, 126 (1994).
¶9 "Jury coercion exists when the trial court's actions or remarks, viewed in the totality of the circumstances, displaced the independent judgment of the jurors or when the trial judge encourages a deadlocked jury to reach a verdict." State v. Davolt, 207 Ariz. 191, 213, ¶ 94 (2004) (internal quotation and citations omitted). Our supreme court has addressed a number of circumstances where a court engaged in improper jury coercion. For example, in State v. Huerstel, 206 Ariz. 93, 100-01, ¶¶ 20-25 (2003), the supreme court determined that improper jury coercion existed when a trial court twice gave an impasse instruction to a deliberating jury while knowing that further discussions would not change a holdout juror's mind and asked the holdout juror to explain his position. In State v. McCrimmon, 187 Ariz. 169, 172-74 (1996), jury coercion was present when the court continued the polling process after a holdout juror failed to affirm the verdict; the court then had an ex parte communication with the holdout juror before instructing the jury to continue deliberating for the purposes of "arriving at a verdict." Id. at 173; see also Lautzenheiser, 180 Ariz. at 8-10 (stating that jury coercion existed after a juror failed to affirm the verdicts when polled, and the trial court ordered further deliberations at 4:30 p.m. on New Year's Eve without cautionary instructions, despite learning from the jury foreman that further discussions would not be productive).
¶10 Here, the trial court did not coerce the jury's verdict on Count 2. As an initial matter, the jury never indicated that further deliberations would be futile, see Lautzenheiser, 180 Ariz. at 10, much less that it was deadlocked, which generally is a precondition to finding improper coercive pressure to reach a verdict. See State v. McCutcheon, 150 Ariz. 317, 320 (1986) ("Influence and coercion has often been found where trial judges encourage a deadlocked jury to reach a verdict."). Instead, the jury initially requested assistance because it could not reach a unanimous decision regarding Count 2. In response, the court properly gave the impasse instruction as suggested by the comment to Rule 22.4, see State v. Sabala, 189 Ariz. 416, 419 n.2 (App. 1997), thereby informing the jury that the court was not trying to force a verdict. The jury then clarified that the disagreement amongst the jurors involved "the charge of theft vs. fraud." This clarification, in addition to the more detailed explanation of the jury's conflict that followed, indicated that the jury was not necessarily disagreeing about Defendant's guilt, but whether—at least in the opinion of one juror—he was appropriately charged with theft instead of fraud in Count 2. In light of the juror's apparent confusion regarding his or her duty to decide Defendant's guilt on the charged offenses, the court properly exercised its discretion and instructed the jury to focus on the elements in Count 2.
Rule 22.4 states:
If the jury advises the court that it has reached an impasse in its deliberations, the court may, in the presence of counsel, inquire of the jurors to determine whether and how court and counsel can assist them in their deliberative process. After receiving the jurors' response, if any, the judge may direct that further proceedings occur as appropriate.
¶11 Further, to the extent the deliberating jury did disagree about Defendant's guilt on Count 2 before eventually reaching a consensus, the holdout juror was not identified to the court or the parties. As a result, although the court was aware that "someone" was holding out, the pressure possibly experienced by the holdout juror in having to further deliberate was not so severe as that perceived by the holdout juror in other cases. See Rodriguez-Rosario, 219 Ariz. at 116, ¶ 13 ("Although the revelation of a numerical division creates the potential for harm, it does not amount to coercion per se."); Sabala, 189 Ariz. at 419 (noting "the inherent pressure associated with being a lone dissenter does not, without more, amount to coercion"). Importantly, the court's impasse instruction advised the unidentified holdout juror not to "change your belief concerning the weight or effect of the evidence solely because of the opinions of your fellow jurors or for the mere purpose of returning a verdict[,]" and twice informed the jurors that the court was not intending to coerce a verdict. Thus, the record does not support a conclusion that the court displaced the holdout juror's independent judgment. Also, the court's response to the final jury question contemplated that the jury might remain at an impasse after further deliberations, thus demonstrating the court did not encourage the jury to reach a verdict.
¶12 Finally, none of the circumstances indicating jury coercion are present here. See supra ¶ 9. And the twenty minutes spent by the jury deliberating after the court responded to the last question was not so short a time to evince the holdout juror was coerced into changing his or her mind. See Sabala, 189 Ariz. at 420 (finding thirty minutes of deliberations after purported coercive reinstruction of jury suggested "that the holdout juror changed position as a result of clarifying information, not that he or she surrendered 'honest convictions' due to overbearing pressure from the court"); cf. Lautzenheiser, 180 Ariz. at 9-10 (noting that, under circumstances indicating coercion, "it [was not] surprising that a guilty verdict was reached so quickly" when the jury reached its verdict twenty minutes after being ordered "to continue trying"). Considering the totality of circumstances, the court's responses to the deliberating jury's questions did not coerce the verdict on Count 2. Consequently, no fundamental error occurred in failing to sua sponte declare a mistrial.
II. Count 2: Sufficiency of Evidence
¶13 Defendant argues the trial court should have granted his motion for judgment of acquittal with respect to Count 2 because the State failed to present substantial evidence of Defendant's (1) unlawful control over Wal-Mart's property and (2) his intent to deprive Wal-Mart of its property.
¶14 A judgment of acquittal is only appropriate if there is "no substantial evidence to warrant a conviction." Ariz. R. Crim. P. 20(a); State v. Fulminante, 193 Ariz. 485, 493, ¶ 24 (1999). We review de novo the superior court's denial of a Rule 20 motion. State v. West, 226 Ariz. 559, 562, ¶ 15 (2011). We will not reverse the superior court's denial of a motion for a judgment of acquittal or a jury's guilty verdict "unless there is a complete absence of probative facts" supporting the jury's conclusion. State v. Johnson, 215 Ariz. 28, 29, ¶ 2 (App. 2007).
The parties incorrectly assert that the applicable standard of review is abuse of discretion. Admittedly, there are a number of court of appeals decisions stating that standard of review. However, our supreme court has expressly noted that a trial court has no discretion in ruling on a motion for judgment of acquittal. State v. Landrigan, 176 Ariz. 1, 4 (1993). --------
¶15 As charged in Count 2, the State was required to prove Defendant committed theft by knowingly controlling Wal-Mart's property without lawful authority and with the intent to deprive Wal-Mart of such property. See A.R.S. § 13-1802.A.1.
¶16 Substantial evidence supports Defendant's conviction on Count 2. The record establishes that Detectives M. and W. observed Defendant carrying a backpack and enter the Staples store with his wife. When the couple exited a short time later, a security alarm sounded. The Detectives followed Defendant and his wife into the neighboring Wal-Mart and watched Defendant at the customer service counter pull items from his backpack and exchange them for a Wal-Mart gift card. The exchanged items matched the description of video games reported missing from the Staples store. Defendant then used the gift card to purchase products from Wal-Mart.
¶17 By using the gift card, which was funded in "exchange" for the value of video games stolen from Staples to "buy" Wal-Mart's products, Defendant knowingly controlled the candy, potato chips, and saw without lawful authority and intended to deprive Wal-Mart of the goods. Contrary to Defendant's assertion, Wal-Mart did not "receive[] exact value for what was given in exchange" because the video games Defendant "returned" did not belong to Wal-Mart. Consequently, substantial evidence supports Defendant's conviction on Count 2, and the court did not err in denying the motion for judgment of acquittal.
III. Jury Instruction Regarding Count 1
¶18 Defendant argues the court fundamentally erred in instructing the jury on the elements of Count 1 because the instruction failed to require that the jury find Defendant intended to deprive Staples of merchandise. In making this argument, Defendant relies on State v. Veloz, 236 Ariz. 532 (App. 2015), for the proposition that, although the statute criminalizing organized retail theft does not contain intent to deprive as an element of the offense, intent to deprive must be established to sustain a conviction.
¶19 Consistent with A.R.S. § 13-1819.A.1, the court instructed the jury: "[T]he crime of organized retail theft requires proof that the defendant[,] with the intent to resell or trade the merchandise for money, or other value, acting alone or in conjunction with another person, removed merchandise from a retail establishment without paying the purchase price." See A.R.S. § 13-1819.A.1.
¶20 In Veloz, this court addressed the mens rea required to commit organized retail theft committed pursuant to A.R.S. § 13-1819.A.2, which states: "A person commits organized retail theft if the person acting alone or in conjunction with another person . . .[u]ses an artifice, instrument, container, device or other article to facilitate the removal of merchandise from a retail establishment without paying the purchase price." Noting that the statute does not expressly establish a culpable state of mind, we nonetheless determined the statute requires intent to deprive. Veloz, 236 Ariz. at 535-36, ¶¶ 6-11.
¶21 Here, on the other hand, the plain language of § 13-1819.A.1 does expressly impose a mens rea requirement, namely, an intent to resell or trade the removed and unpaid-for merchandise. As a result, Veloz is not persuasive authority for judicially imposing an intent to deprive element on § 13-1819.A.1. Because the court correctly instructed the jury that to find Defendant guilty on Count 2 the jurors must agree that he intended to resell or trade the video games taken from Staples, no error, fundamental or otherwise, occurred. See State v. Lavers, 168 Ariz. 376, 385 (1991) ("Before we may engage in a fundamental error analysis, . . . we must first find that the trial court committed some error.").
CONCLUSION
¶22 Defendant's convictions and sentences are affirmed.