State v. Tubbs

747 P.2d 1232, 155 Ariz. 533, 1987 Ariz. App. LEXIS 635
CourtCourt of Appeals of Arizona
DecidedDecember 22, 1987
Docket1 CA-CR 10681
StatusPublished
Cited by18 cases

This text of 747 P.2d 1232 (State v. Tubbs) 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. Tubbs, 747 P.2d 1232, 155 Ariz. 533, 1987 Ariz. App. LEXIS 635 (Ark. Ct. App. 1987).

Opinions

OPINION

GRANT, Judge.

Defendant was charged with Count I, sexual assault; Count II, burglary; Count III, burglary; and Count IV, criminal trespass. A jury found defendant guilty of all charges except Count I (sexual assault).

The court denied a subsequent motion for a new trial for Counts II and IV but [535]*535granted a new trial for Count III. Defendant then entered an Alford guilty plea to Count III in exchange for the state’s agreement to: dismiss all but one prior conviction on Counts II and IV; allege only one prior conviction as to Count III; and run all sentences concurrently. The trial court sentenced defendant to concurrent terms of five years on Count II and Count III and three years on Count IV. The defendant was given credit for 259 days presentence incarceration.

On appeal, defendant argues that: (1) the court erred when it failed to grant his motion for judgment of acquittal on Count II or for a new trial; (2) the trial court erred when it denied his motion for a mistrial following the jury selection; and (3) his Alford plea to Count III was not voluntary or intelligently made.

The facts necessary to sustain the conviction and sentence follow. In the evening of January 29, 1986, after locking her doors, the victim spent the evening watching television with her three children. At the time she locked the kitchen door, the curtains were straight and the window screen intact. The victim and her children fell asleep. She awoke around midnight, heard a noise, and discovered defendant in her living room. The victim recognized him as a previous social guest in her home, one who had dated a girl friend of the victim. After some conversation, defendant told the victim to go into another room, and once there, told her to undress. The victim testified she was forced by defendant to have sexual intercourse and perform fellatio. After the victim heard the defendant leave, she got up, took her children into the kitchen and locked the door. It was at this point, she noticed that the curtains were falling off and the window screen was torn. The victim telephoned the police from a neighbor’s and after the police arrived the victim went to the hospital and then she and her children went to her mother’s house.

Later that morning, a neighbor called the police after seeing someone trying to get into the victim’s house. The police arrived, saw someone in the house and noticed that one of the windows in the house was broken and, open. Defendant came out of the victim’s home only after being warned that if he didn’t come out, the police would send in a police dog.

SUFFICIENCY OF EVIDENCE TO SUPPORT CONVICTION ON COUNT II, BURGLARY

At the close of the state’s case, the defendant made a rule 20 motion for judgment of acquittal, which was denied. After the verdict of guilty, defendant renewed his motion and joined it with a rule 24.1 motion for new trial. The trial court must grant a rule 20 motion only if there is no substantial evidence to warrant a conviction. Rule 20, Arizona Rules of Criminal Procedure. In passing on a motion for judgment of acquittal the trial judge gives “full credence to the right of the jury to determine credibility, weigh the evidence and draw justifiable conclusions therefrom____” State v. Clifton, 134 Ariz. 345, 348, 656 P.2d 634, 637 (App.1982). However, when the court considers a motion for a new trial, its power is significantly expanded. This decision may very well be the last one made by the trial judge before the defendant loses his freedom. Id. Unlike a motion for a directed verdict, a motion for a new trial is discretionary and as such, in considering the motion for new trial, the trial court may weigh the evidence and consider the credibility of witnesses. Id. Because a motion for a new trial based on the claim that the verdict is contrary to the weight of the evidence involves weighing evidence and determining the credibility of witnesses, the trial court’s ruling on such a motion will not be reversed on appeal absent an abuse of discretion. State v. Neal, 143 Ariz. 93, 97, 692 P.2d 272, 276 (1984).

In the present case, the jurors concluded that defendant was guilty of burglary twice: once when he first entered the victim’s house and allegedly assaulted her; and a second time when he was discovered in the victim’s home later that morning.

Defendant, however, argues that the only evidence the state presented on his [536]*536intent to commit a felony, a necessary element of the first burglary conviction, was his sexual assault on the victim. Because the jury found defendant had not sexually assaulted the victim, he argues that no evidence existed to establish his felonious intent in entering and remaining in the house.

Defendant is incorrect. The mere fact that the jury found he did not commit the sexual assault does not mean that the jury was precluded from finding that he had the intent to engage in a sexual assault or some other felony while in the house. The indictment charged defendant with “the intent to commit a theft or a felony therein”; it did not limit the felony to a sexual assault.

The Arizona Supreme Court has held that the jurors may consider the circumstances surrounding the entry itself in determining the defendant’s intent upon entry:

The law in Arizona is that while the requisite intent may not be inferred from mere entry or theft alone, any additional factor may be sufficient to warrant such an inference. Here, if the jury believed (the witness’s) testimony, it could have found that the appellant had the specific intent necessary to commit burglary in the third degree from the fact that he broke the window.

State v. Malloy, 131 Ariz. 125, 130, 639 P.2d 315, 320 (1981) (citations omitted); see also State v. Rodriguez, 114 Ariz. 331, 333-34, 560 P.2d 1238, 1240-41 (1977) (jurors could infer intent from forced entry and unsatisfactory explanation for entry); and State v. Taylor, 25 Ariz.App. 497, 499, 544 P.2d 714, 716 (1976) (jurors could infer intent from unauthorized entry into premises gained by force); accord, State v. Talley, 112 Ariz. 268, 270, 540 P.2d 1249, 1251 (1975) (jurors could infer intent from late hour, unauthorized entry, unexplained activity and presence in the residence, and attempt to hide); State v. Hopkins, 108 Ariz. 210, 211, 495 P.2d 440, 441 (1972) (jurors could infer intent from entry through a window).

In the present case, the victim testified the defendant entered her home sometime after midnight, that she was asleep and did not give him permission to enter, and that he entered by ripping off the screen and coming through a window. The jury was instructed 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.

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State v. Tubbs
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Bluebook (online)
747 P.2d 1232, 155 Ariz. 533, 1987 Ariz. App. LEXIS 635, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-tubbs-arizctapp-1987.