Opinion
No. 1 CA-CR 11-0900
11-13-2012
STATE OF ARIZONA, Appellee, v. JAMIE LAMONT TERRY, Appellant.
Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Myles Braccio, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Jeffrey L. Force, Deputy Public Defender Attorney for Appellant Phoenix
NOTE: 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(Not for Publication - Rule 111, Rules of the Arizona Supreme Court)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 Maricopa County
Cause No. CR2011-129966-001
The Honorable Phemonia L. Miller, Judge Pro Tempore
AFFIRMED
Thomas C. Horne, Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
Myles Braccio, Assistant Attorney General
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Jeffrey L. Force, Deputy Public Defender
Attorney for Appellant
Phoenix JOHNSEN, Judge ¶1 Jamie Lamont Terry appeals his conviction of criminal trespass in the first degree. For the following reasons, we affirm the conviction and the resulting sentence.
FACTS AND PROCEDURAL BACKGROUND
¶2 Arriving at his apartment late one night after work, C.F. found Terry speaking with C.F.'s girlfriend, who was living with C.F. at the time. Although Terry left shortly thereafter, he returned twice that night, both times without invitation. The first time, C.F. heard Terry yelling outside the apartment. C.F. went outside to investigate and saw that Terry had picked up a plastic planter from near the pool area of the apartment complex. Terry walked toward C.F.'s apartment as if to throw the planter through a window in the front door. A concrete slab, a few stairs and a gate separated C.F.'s apartment from the common area of the complex. C.F. proceeded to the common area, where he took the planter out of Terry's hands before Terry reached the gate. C.F. told Terry not to return and Terry left. ¶3 Terry returned again 45 minutes to an hour later. Without invitation or permission, Terry entered C.F.'s apartment through the unlocked front door. After C.F. told Terry he was not welcome, the two began fighting. C.F. finally grabbed Terry by the throat and dragged him out of the apartment. ¶4 The State indicted Terry on one count of criminal trespass in the first degree, a Class 6 felony, alleging he entered or remained unlawfully in C.F.'s apartment in violation of Arizona Revised Statutes ("A.R.S.") section 13-1504(A)(1) (West 2012). The jury returned a guilty verdict on the charge of criminal trespass in the first degree. ¶5 Terry timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and A.R.S. §§ 12-120.21(A)(1) (West 2012), 13-4031 (West 2012) and 13-4033 (West 2012).
Upon review, we view the facts in the light most favorable to sustaining the jury's verdict and resolve all inferences against the defendant. State v. Fontes, 195 Ariz. 229, 230, ¶ 2, 986 P.2d 897, 898 (App. 1998). To protect the victim's privacy, we do not use his name. See State v. Maldonado, 206 Ariz. 339, 341, ¶ 2, n.1, 78 P.3d 1060, 1062 (App. 2003).
Absent material revisions after the date of an alleged offense, we cite a statute's current version.
--------
DISCUSSION
¶6 Terry argues the superior court improperly instructed the jury as to the elements of criminal trespass, thereby violating his right to a unanimous verdict and raising concerns of a duplicitous charge, double jeopardy and inadequate notice. ¶7 Terry did not object to the jury instruction in the superior court and therefore we review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Terry must show that any error was fundamental and that he suffered prejudice as a result. Id. at 567-68, ¶ 20, 115 P.3d at 607-08. Fundamental error is error that "goes to the foundation of his case, takes away a right that is essential to his defense, and is of such magnitude that he could not have received a fair trial." Id. at 568, ¶ 24, 115 P.3d at 608. ¶8 Article 2, Section 23, of the Arizona Constitution, requires unanimous verdicts in criminal cases. When the State introduces evidence of two criminal acts to prove a single count, it raises the potential of a non-unanimous jury verdict. State v. Klokic, 219 Ariz. 241, 249, ¶ 38, 196 P.3d 844, 852 (App. 2008). A violation of the right to a unanimous verdict constitutes fundamental, reversible error in the absence of a curative measure. State v. Paredes-Solano, 223 Ariz. 284, 291-92, ¶ 22, 222 P.3d 900, 907-08 (App. 2009) (quotation omitted). The potential for a non-unanimous jury verdict can be "cured when the basis for the jury's verdict is clear, when the state elects for the jury which act constitutes the crime, or when the trial court instructs the jury that it must agree unanimously on the specific act constituting the crime." Id. at 290, ¶ 17, 222 P.3d at 906 (citing State v. Schroeder, 167 Ariz. 47, 53, 804 P.2d 776, 782 (App. 1990)). ¶9 Arizona law defines criminal trespass in this manner:
A. A person commits criminal trespass in the first degree by knowingly:A.R.S. § 13-1504(A)(1)-(2). Criminal trespass under subsection (1) is a Class 6 felony; under subsection (2), a Class 1 misdemeanor. A.R.S. § 13-1504(B). The superior court instructed the jury in this case that a conviction for criminal trespass requires proof that a defendant "[k]nowingly entered or remained unlawfully in or on a residential structure or in a fenced residential yard." As Terry argues, this instruction potentially allowed the jury to return a guilty verdict under either subsection. ¶10 Terry argues the jury heard evidence that he trespassed two times: Once when he approached the apartment to break the window with the planter and the second time when he entered the unlocked door to the apartment without permission or invitation. He argues the jury could have convicted him under A.R.S. § 13-1504(A)(2) for the first act or under § 13-1504(A)(1) for the second. He complains that the court erred by giving the instruction it did without requiring the jury to agree unanimously that he was guilty of violating one provision or the other. ¶11 The record does not support Terry's characterization of the evidence. Even if we accept that the concrete slab inside the gate in front of C.F.'s door was a "fenced residential yard," there was no evidence that when Terry approached with the planter, he entered inside the gate that separated C.F.'s apartment from the common area. C.F. was the only witness to testify to the events, and he told the jury he took the planter out of Terry's hand before Terry reached the gate, and that Terry left thereafter. Therefore, the only evidence the jury heard of trespass within the meaning of the statute was that Terry entered C.F.'s apartment through the unlocked door on his third visit to the apartment that night. Moreover, the prosecutor did not argue to the jury that it could find Terry guilty of violating § 13-1504(A)(2). ¶12 Without evidence of two separate acts and in the absence of argument by the prosecution, the basis for the jury's verdict is clear and no possibility of a non-unanimous verdict existed. For the same reason, we must reject Terry's arguments of a duplicitous charge, double jeopardy violation and inadequate notice.
1. Entering or remaining unlawfully in or on a residential structure.
2. Entering or remaining unlawfully in a fenced residential yard.
CONCLUSION
¶13 We affirm Terry's conviction and resulting sentence.
______________________
DIANE M. JOHNSEN, Judge
CONCURRING: ______________________
PATRICIA K. NORRIS, Presiding Judge
______________________
JON W. THOMPSON, Judge