STATE OF ARIZONA v. NEAL JAMES ROLF
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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 FILED BY CLERK SEP 12 2012 COURT OF APPEALS DIVISION TWO IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Appellee, v. NEAL JAMES ROLF, Appellant. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2011-0324 DEPARTMENT A MEMORANDUM DECISION Not for Publication Rule 111, Rules of the Supreme Court APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20104214001 Honorable Terry L. Chandler, Judge AFFIRMED Lori J. Lefferts, Pima County Public Defender By Rebecca A. McLean Tucson Attorneys for Appellant H O W A R D, Chief Judge. ¶1 Appellant Neal Rolf was charged with first-degree murder of S. A jury found him guilty of manslaughter, and the trial court sentenced him to the presumptive prison term of 10.5 years. Appointed counsel has filed an appellate brief in compliance with Anders v. California, 386 U.S. 738 (1967), State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), and State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999), avowing she has reviewed the entire record and has not been able to find any issue to raise on appeal that is even arguably meritorious. Rolf has not filed a supplemental brief. Pursuant to Anders and its progeny, counsel has asked this court to search the record for fundamental error. ¶2 We have conducted the review counsel requested and have found no reversible error. Although the jury did not find sufficient evidence to support a guilty verdict on the charged offense of first-degree murder, it found Rolf guilty of the lesserincluded offense of manslaughter, a dangerous offense. The trial court had instructed the jury that the charged offense of first-degree murder included, inter alia, the lesser offense of manslaughter. Materially consistent with A.R.S. § 13-1103 and consistent with A.R.S. § 13-105(10)(c), the court instructed the jury, The crime of manslaughter requires proof that the defendant caused the death of another person, and the person was aware and showed a conscious disregard of a substantial and [un]justifiable risk of death. The risk must be such that disregarding it was a gross deviation from the standard of conduct that a reasonable person would observe in the situation. 1 1 Section 13-1103(A)(1) provides that a person commits manslaughter by [r]ecklessly causing the death of another person. During the settling of instructions the trial court acknowledged that recklessness is an element of manslaughter under this subsection of the statute, but the instruction, which the court read to the jury at the end of the trial, omitted the word recklessly. Any error, however, was clearly harmless because the instruction incorporated the definition of recklessly as provided in § 13105(10)(c). Similarly, although the transcript reflects the court used the word justifiable risk rather than unjustifiable in defining manslaughter, the written instruction used the word unjustifiable. The transcript further reflects that in reading the general definition of recklessly, the court used the word unjustifiable. Assuming the transcript accurately reflects what the court said, if there was error it was harmless. 2 ¶3 Viewed in the light most favorable to sustaining the verdict, the evidence established that Rolf believed the intoxicated victim had been in the army for thirteen years and had been trained for combat; that she had become agitated and enraged before the shooting, threatening Rolf verbally, performing karate-style kicks, punches, and chops, telling him she could kill him with her hands, and stating she was going to kill him. Rolf left the room at one point, returned with his shotgun, and shot the victim in the head at close range, killing her. From this evidence the jurors readily could find beyond a reasonable doubt that Rolf was guilty of manslaughter. ¶4 Having found no reversible error at trial or any error at sentencing that would require us to disturb the sentence the court imposed, we affirm the conviction and the sentence. /s/ Joseph W. Howard JOSEPH W. HOWARD, Chief Judge CONCURRING: /s/ Peter J. Eckerstrom PETER J. ECKERSTROM, Presiding Judge /s/ J. William Brammer, Jr. J. WILLIAM BRAMMER, JR., Judge 3
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