State v. Aguirre

633 P.2d 1047, 130 Ariz. 54, 1981 Ariz. App. LEXIS 498
CourtCourt of Appeals of Arizona
DecidedJune 8, 1981
Docket2 CA-CR 2160
StatusPublished
Cited by32 cases

This text of 633 P.2d 1047 (State v. Aguirre) is published on Counsel Stack Legal Research, covering Court of Appeals of Arizona primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Aguirre, 633 P.2d 1047, 130 Ariz. 54, 1981 Ariz. App. LEXIS 498 (Ark. Ct. App. 1981).

Opinion

OPINION

BIRDSALL, Judge.

Appellant was convicted of burglary in the second degree, kidnapping, sexual conduct with a minor, and child molestation with two prior felony convictions, the charges reflected in the indictment. On appeal, he raises three issues as error:

*56 1) The denial of his motion to suppress evidence;

2) The denial of his motion to preclude impeachment with prior felony convictions; and

3) A verdict of guilty of child molestation after the jury had been returned for further deliberation.

Appellant contends that failure to suppress evidence seized from his person was error because the frisk and the subsequent arrest were unlawful for lack of probable cause. He concedes that the officer acted reasonably by initially detaining him because (1) there was a crime reported, (2) he was in the vicinity of the reported crime and (3) he was observed sliding under a truck. He contends that the “frisk” that followed was not justified under the circumstances because the officer did not have reason to believe appellant was armed. We note that the officer had to coax appellant out from under the truck which showed his lack of cooperation. Appellant was known to the officer as a felon although the officer did not know whether the prior crimes were violent. The officer, at this stage, did not know whether a weapon was involved or the details of the crime reported, except that it was believed to be a burglary. A frisk for weapons is reasonable if a reasonably prudent person in the same circumstances would be warranted in believing that his safety was in danger. Terry v. Ohio, 392 U.S. 1, 88 S.Ct. 1868, 20 L.Ed.2d 889 (1968). The weapons search was reasonable for the protection of the officer, who had reason to believe that a burglary had occurred, while he conducted his investigation even though appellant was not behaving in a threatening manner. Cf. State v. Nichols, 26 Ariz.App. 455, 549 P.2d 235 (1976) (police officer acted reasonably when he frisked the defendant because he believed a burglary was in progress).

Appellant next contends that the frisk did not provide probable cause to search his pockets. We disagree. The officer testified that he felt a bulge in appellant’s pocket which might have been a weapon. Searching the pocket to ascertain whether there was a weapon was justified. See State v. Lamb, 116 Ariz. 134, 568 P.2d 1032 (1977).

Appellant was then handcuffed and placed in a patrol car. He contends that he was then under arrest without a warrant or probable cause. We disagree. Appellant was being detained until the officer could get more information about the reported crime. When an officer is engaged in an investigation, he may detain a person under circumstances which would not justify an arrest. State v. Taras, 19 Ariz.App. 7, 504 P.2d 548 (1973). The reasons which support appellant’s initial detention continued to apply as the officer sought more information about the reported crime. See id. Whether handcuffing appellant and placing him in the police car was reasonable force must be evaluated in light of the circumstances. See id. One officer was to stay alone with appellant who had acted evasively and hidden earlier. The officers had reason to believe appellant might try to escape, Cf. id. (Suspect who tried to avoid police was reasonably detained by use of handcuffs and confinement to a patrol car.) Within five minutes, the officer obtained additional information that a burglary had been committed, that a bracelet like the one found on appellant was taken, that the perpetrator was dressed like appellant and in which direction the perpetrator had run. All the information obtained constituted probable cause to arrest. See State v. Sardo, 112 Ariz. 509, 543 P.3d 1138 (1975).

The officers did remove the bracelet from appellant’s pocket before getting this additional information. However, this would have occurred, in any event, after the completed arrest and was incident to the lawful search for a weapon. Since the bracelet would have come into police custody in the normal course of the police investigation, as did the rest of the pocket’s contents, it was admissible. See State v. Lamb, supra.

*57 Impeachment by Prior Convictions

Appellant contends that the court’s failure to exclude evidence of his prior felony convictions was error. He claims that the probative value of the convictions does not outweigh the prejudicial effect. In the alternative, he argues that the state failed to meet its burden of proof under rule 609, 17A A.R.S. Rules of Evidence. We disagree with both contentions.

Appellant’s argument that the court failed to make a determination that the probative value of the prior convictions outweighs the prejudicial effect is directly contradicted by the record. This finding was expressly made and recorded in a minute entry. The finding was entered after a hearing on the record on appellant’s motion to preclude his impeachment by prior felony convictions. The fact that the court’s finding does not also appear in the transcript is irrelevant. The court complied with the recommendations made in State v. Cross, 123 Ariz. 494, 600 P.2d 1126 (App.1979). The court is not required to also explain the basis for its decision so long as it is supported by the facts before the court. Cf. State v. Ellerson, 125 Ariz. 249, 609 P.2d 64 (1980) (held that although the court made no express findings, its actions and the record indicated that the court had considered the necessary factors).

The state identified the felony convictions by their cause number, the type of offense, and the conviction date. Both alleged felonies occurred in Gila County, within the court’s jurisdiction. Appellant was convicted of robbery and of receiving stolen goods. Any felony, even if it does not involve false statement or dishonesty, has probative value on the issue of the defendant’s credibility. State v. Dixon, 126 Ariz. 613, 617 P.2d 779 (App.1980). Appellant’s credibiity was important since his testimony was in direct conflict with the victim’s and the arresting officers’ testimony. In such circumstances, the jury should have before it all information which might re-fleet on appellant’s truthfulness. See id. We hold that the trial court did not abuse its discretion in determining that the state had met its burden.

Child Molestation Verdict

Appellant’s final contention is that the court erred by returning the jury for further deliberation upon their verdicts of guilty of child molestation and sexual abuse.

The jury was given the following instructions about sexual abuse:

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Bluebook (online)
633 P.2d 1047, 130 Ariz. 54, 1981 Ariz. App. LEXIS 498, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-aguirre-arizctapp-1981.