State v. Rhone

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NOTICE: 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 DIVISION ONE FILED: 05/22/2012 RUTH A. WILLINGHAM, CLERK BY: sls IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. JEFFREY CRAIG RHONE, Appellant. ) ) ) ) ) ) ) ) ) ) No. 1 CA-CR 11-0011 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2010-005546-001 DT The Honorable Robert L. Gottsfield, Judge AFFIRMED Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals Section/ Capital Litigation Section and Michael T. O Toole, Assistant Attorney General Attorneys for Appellee Phoenix Bruce Peterson, Office of the Legal Advocate by Thomas J. Dennis, Deputy Legal Advocate Attorneys for Appellant Phoenix H A L L, Judge ¶1 Jeffrey Craig Rhone (defendant) appeals from his conviction and sentence of one count of taking the identity of another, a class 4 felony. For the following reasons, we affirm. FACTUAL1 AND PROCEDURAL BACKGROUND ¶2 In February 2011, defendant was indicted on one count of forgery2 and one count of taking the identity of another, both class 4 felonies. ¶3 At trial, Phoenix police officer A.B. testified that he had been on duty on the evening of December 9, 2009, when he received a purse-snatching call. While responding to the call, Officer A.B. saw an individual walk across the street and he drove his patrol car up to the individual. The individual, later determined to be defendant, stated that the purse-snatcher was running southbound. Defendant elaborated that he had been chasing the suspect and that the suspect may have taken his wallet.3 Officer A.B. asked defendant for identification and defendant handed him an identification card with the name of Nathan Taylor on it. the name warrants. Taylor and Officer A.B. conducted a records check on discovered he had several outstanding Officer A.B. then placed defendant under arrest. As 1 We review the evidence and inferences drawn from the evidence in a light most favorable to upholding the verdict. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 2 The court subsequently granted defendant s Rule 20 motion for count 1 and dismissed that count. 3 A suspect was later apprehended and detained in the pursesnatching incident. 2 Officer A.B. was attempting to verify the validity of the warrants, he learned that Taylor was deceased and that Taylor had a tattoo of the word pooch on his left forearm. Officer A.B. on asked forearm. defendant if he had a tattoo of pooch his Defendant responded affirmatively, but stated that he had had it removed. Officer A.B. informed defendant that he was going fingerprinted to have him to determine his identity. Defendant then stated that his name was Jeffrey Rhone and that he gave Officer A.B. Taylor s identification card because he thought he had a warrant out for his own arrest. Defendant later told Officer A.B. that he had found the identification card in an abandoned apartment and kept it because he thought Taylor resembled him. defendant did not Defendant stated that he knew Taylor, but state whether he had rested, the permission to use Taylor s identification card. ¶4 After the State court considered defendant s Rule 20 motion for acquittal for count 2, taking the identity of another. Defendant, the State, and discussed whether there was a corpus delicti issue. the court The court concluded that there was not an issue and allowed count 2 to go to the jury. ¶5 The jury found defendant guilty. Defendant subsequently renewed his motion for judgment of acquittal, or alternatively, a new trial, arguing that the verdict was contrary to the corpus delicti rule and that the 3 only evidence presented at trial was Officer A.B. s testimony that defendant found the identification card in an abandoned apartment, which was uncorroborated. ¶6 The State responded that there was substantial evidence, independent of defendant s statements, to prove that defendant was guilty of taking the identity of another. State argued that the evidence consisted of The defendant s possession of Taylor s identification card, the fact that Taylor was deceased at the time of defendant s arrest, and that there was no evidence Taylor gave permission to defendant to have his identification card. The trial court denied defendant s motion, finding that there was substantial evidence on all elements of the crime to innocence. . let . circumstantial . the jury decide sufficient evidence, was the issue independent presented of guilt evidence, to satisfy or including the corpus [delicti] that the crime charged had occurred. ¶7 Defendant 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) (2003), 13-4031, and -4033(A)(1) (2010). DISCUSSION ¶8 Defendant argues that the trial court erred in its ruling denying defendant s initial motion and renewed motion for judgment of acquittal because the 4 State failed to meet the requirements of the corpus delicti doctrine. This court reviews the trial court s denial of a motion for acquittal based on the corpus delicti doctrine for an abuse of discretion. State v. Morgan, 204 Ariz. 166, 170, ¶ 14, 61 P.3d 460, 464 (App. 2002); see also State v. Chappell, 225 Ariz. 229, 234, ¶ 8, 236 P.3d 1176, 1181 (2010) (we review trial court s ruling on sufficiency of the evidence of corpus delicti for abuse of discretion). ¶9 as We initially note that the State requested we address a matter of first impression whether doctrine is valid under Arizona law. so. the corpus delicti We, however, decline to do First, it is not necessary to address that issue in order to resolve the case before us. Second, the Arizona Supreme Court recently decided a case involving corpus delicti in 2010, Chappell, 225 Ariz. 229, 236 P.3d 1176, and court s unquestioning application of the doctrine supports the continued vitality of it. ¶10 that Id. at 234, ¶¶ 8-10, 236 P.3d at 1181. The purpose of the corpus delicti rule is to ensure a defendant s conviction is not based uncorroborated confession or incriminating statement. upon an See id. at 234, ¶ 9, 236 P.3d at 1181; see also State v. Morris, 215 Ariz. 324, 333, ¶ 34, 160 P.3d 203, 212 (2007). Corpus delicti may be established through an independent corroboration of the defendant s statements or by circumstantial evidence. Chappell, 225 Ariz. at 234, ¶ 9, 236 P.3d at 1181; Morgan, 204 Ariz. at 5 170, ¶ 15, 61 P.3d at 464 (defendant may not be convicted of crime based proof of on corpus uncorroborated delicti, or confession body of without the independent crime ). Corpus delicti requires that a reasonable inference that the crime charged was actually committed by some person. State v. Flores, 202 Ariz. 221, 224, ¶ 16, 42 P.3d 1186, 1189 (App. 2002) (citation omitted). ¶11 One commits taking the identity of another if: the person knowingly takes, purchases, manufactures, records, possesses or uses any personal identifying information or entity indentifying information of another person or entity, including a real or fictitious person or entity, without the consent of that other person or entity, with the intent to obtain or use the other person s or entity s identity for any unlawful purpose or to cause loss to a person or entity whether or not the person or entity actually suffers any economic loss as a result of the offense, or with the intent to obtain or continue employment. Ariz. Rev. Stat. § 13-2008(A) (2010). ¶12 Defendant argues that the consent element of this crime was not met because the only evidence in the record that defendant did not have Taylor s consent to use his identification card was defendant s statement to the police that he found the identification to Flores, card 202 in Ariz. an abandoned 221, 42 P.3d apartment. Defendant cites 1186, as support. In Flores, the defendant was arrested after police discovered he had an outstanding misdemeanor warrant, and, while conducting an unchallenged search incident to arrest, the police 6 found two unpackaged rocks of crack cocaine and $1.53 on the defendant. Id. at 222, 42 P.3d at 1187. The defendant explained to police that he did not intend to smoke the cocaine, but was holding it for another individual, and that individual was going to instruct the defendant where to deliver it. Id. The defendant was charged with transportation of narcotic drugs for sale and possession of narcotic drugs for sale. Id. The trial court concluded that there was no showing of the element of sale and suppressed the defendant s statements under the corpus delicti rule. Id. This court upheld the trial court s ruling, holding that there was no reasonable inference for the sale element because the crack cocaine was not packaged or in separate baggies; the defendant was carrying a negligible amount of money on him; and no evidence was presented individual described by the defendant existed. that the Id. at 224-25, 42 P.2d at 1189-90. ¶13 The State argues that Flores is distinguishable from this case. We agree. In Flores, the only evidence supporting a reasonable inference of a sale was the statements made by the defendant supporting himself. the identification However, taking card of itself, in this another s case, identity defendant s the evidence included presentation of the the identification card to Officer A.B., defendant s own attempt to portray himself as Taylor, and the fact that Taylor was deceased 7 prior to defendant s arrest. Further, because a deceased person cannot consent posthumously provide to another individual to possess and use his or her identification card, the lack of consent element has been adequately proven.4 We therefore hold that the trial court did not err. CONCLUSION ¶14 For the foregoing reasons, we affirm. _/s/______________________________ PHILIP HALL, Judge CONCURRING: _/s/___________________________________ PATRICIA A. OROZCO, Presiding Judge _/s/___________________________________ JOHN C. GEMMILL, Judge 4 A Utah statute provides that a dead person may consent to another person using their identity through the written consent of their heirs or personal representatives. See Jeppson v. United Television, Inc., 580 P.2d 1087, 1088 (Utah 1978) (citing section 76-9-405). A.R.S. § 13-2008, however, does not include this provision. 8

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