State v. Brown
Annotate this Case
Download PDF
IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE ) ) ) ) ) ) ) ) ) ) STATE OF ARIZONA, Appellee, v. RICHARD D. BROWN, Appellant. No. 1 CA-CR 06-0415 DEPARTMENT B O P I N I O N FILED 6-7-07 Appeal from the Superior Court in Maricopa County Cause No. CR-2005-132212-001 DT The Honorable Margaret R. Mahoney, Judge AFFIRMED Terry Goddard, Attorney General By Randall M. Howe, Chief Counsel Criminal Appeals Section and Nicholas D. Acedo, Assistant Attorney General Attorneys for Appellee Phoenix Susan Sherwin, Office of the Legal Advocate By Thomas J. Dennis, Deputy Legal Advocate Attorneys for Appellant Phoenix T I M M E R, Judge ¶1 An eight-person jury convicted Richard D. Brown of first-degree burglary, aggravated assault, and threatening or intimidating. Brown argues the trial court committed fundamental error by failing to empanel a twelve-person jury because he faced a possible sentence in excess of thirty years imprisonment at the time the jury commenced deliberations. Ariz. Const. art. 2, § 23; Ariz. Rev. Stat. ( A.R.S. ) § 21102(A) (2002). To resolve this issue, we must decide whether Brown was subject to consecutive sentences for committing firstdegree burglary and aggravated assault. For the reasons that follow, we hold the court was required to impose concurrent sentences for these convictions. Consequently, Brown was not exposed to a sentence in excess of thirty years imprisonment at the time the jury commenced deliberations, and the trial court therefore properly empanelled the jury. BACKGROUND1 ¶2 Roberta W. was Brown s ex-girlfriend. She and Roosevelt T. were in Roberta s apartment on October 4, 2005, when Brown smashed baseball bat. through arcadia doors with a After a struggle, Brown left the Once outside, Brown threatened to kill Roosevelt for dating Roberta. ¶3 glass Brown attacked Roosevelt with the bat, leaving a welt on Roosevelt s face. apartment. the The police arrested Brown later the same night. The State charged Brown with one count of first-degree burglary, one count of aggravated assault, and one count of threatening or intimidating. An eight-person jury convicted Brown on all counts, and the court imposed concurrent sentences 1 We view the facts in a light most favorable to sustaining the jury s verdict. State v. Long, 207 Ariz. 140, 142, ¶ 2, 83 P.3d 618, 620 (App. 2004). 2 of 10.5 years years imprisonment imprisonment imprisonment for for first-degree for aggravated threatening or assault, burglary, and intimidating. 7.5 one year This timely trial court appeal followed. DISCUSSION ¶4 Brown s sole challenge is that the committed fundamental error by trying him before an eight-person jury because he faced a possible prison sentence in excess of thirty years.2 Ariz. Const. art. 2, § 23; A.R.S. § 21-102(A). Because Brown raises this claim for the first time on appeal, we review for fundamental error only. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005) (holding failure to object at trial waives issue absent fundamental error). parties agree the court committed fundamental error The by empanelling fewer than twelve jurors if at the time the jury commenced deliberations Brown faced a possible prison sentence in excess of thirty years. State v. Kuck, 212 Ariz. 232, 233- 34, ¶¶ 11-12, 129 P.3d 954, 955-56 (App. 2006) (holding crucial time for assessing potential 2 sentence for purposes of The parties disagree on the precise number of years Brown faced if the court had imposed consecutive sentences. The State contends Brown would have faced a 42.56-year sentence, while Brown claims he faced a 38.5-year sentence. We need not reconcile the difference. For purposes of this appeal, it suffices that Brown faced more than thirty years imprisonment if the court had imposed consecutive sentences for first-degree burglary and aggravated assault. 3 determining jury number is start of jury deliberations);3 State v. Maldonado, 206 Ariz. 339, 342, ¶ 10, 78 P.3d 1060, 1063 (App. 2003) ( [T]he improper denial of a twelve-person jury . . . is fundamental error. ). ¶5 The determinative issue before us is whether Brown s commission of constituted a concurrent multiple sentences. never first-degree burglary single thereby sentences acts, act, pursuant thereby to permitting aggravated mandating A.R.S. § assault imposition 13-116 imposition of (2001), of or consecutive If a single act, as the State contends, Brown was exposed to thirty or more years twelve-person jury was not required. were and multiple acts, as Brown imprisonment, and a If, however, these crimes contends, he was exposed to consecutive sentences of more than thirty years imprisonment, and a twelve-person jury was required. ¶6 Section 13-116, A.R.S., provides that [a]n act or omission which is made punishable in different ways by different sections of the laws may be punished under both, but in no event may sentences be other than concurrent. The application of this statute is a matter of law that we review de novo. 3 State Of course, a prudent trial court judge will consider the appropriate number of jurors at the start of trial rather than at the time of deliberations in order to avoid error if too few jurors exist at the time the case is submitted for deliberation. 4 v. Urquidez, 213 Ariz. 50, 52, ¶ 6, 138 P.3d 1177, 1179 (App. 2006). ¶7 Section 13-116, A.R.S., does not bar consecutive sentences for separate offenses or even for the same offense committed multiple times. See State v. Williams, 182 Ariz. 548, 562-64, 898 P.2d 497, 511-13 (App. 1995). So long as each of the acts involved can be considered a separate crime, the offenses can be punished consecutively. at 512-13. Id. at 563-64, 898 P.2d To determine whether Brown s conduct constituted a single act, we apply the test set out in State v. Gordon, 161 Ariz. 308, 315, 778 P.2d 1204, 1211 (1989). State v. Carreon, 210 Ariz. 54, 74, ¶ 102, 107 P.3d 900, 920 (2005). ¶8 In Gordon, the supreme court set forth factors to consider in determining whether the charged offenses constitute a single act under A.R.S. § 13-116. at 1211. 161 Ariz. at 315, 778 P.2d Preliminarily, the court must determine which offense is the ultimate crime, meaning the [crime] that is at the essence of the factual nexus and that will often be the most serious of the charges. the ultimate crime aggravated assault. not the felony, most and Id. for Brown and the State agree that purposes We agree. serious A.R.S. § 13-116 is Although aggravated assault is offense first-degree of because burglary 5 is it a is a class class two three felony, aggravated assault is nonetheless the ultimate crime because it was at the essence of the factual nexus. ¶9 Id. Once the ultimate crime is determined, the first step under Gordon is to subtract[] from the factual transaction the evidence necessary to convict on the ultimate charge. the remaining crime, then evidence consecutive A.R.S. § 13-116. satisfies the sentences Id. elements may be of Id. If the other permissible under Here, the evidence from the factual transaction necessary to convict Brown of aggravated assault was that (1) Brown used a deadly weapon or dangerous instrument (2) to intentionally, knowingly, or recklessly (3) cause physical injury to Roosevelt. A.R.S. § 13-1204 (2001). When that evidence is subtracted, evidence remains that Brown (1) entered or remained unlawfully in Roberta s apartment (2) with the intent to commit aggravated assault, which satisfies two of the elements the State was required to prove to obtain a conviction for first-degree Evidence does burglary. not A.R.S. remain, however, § to 13-1508(A) establish the (2001). third element necessary to prove first-degree burglary under the facts of this case that Brown knowingly possessed a deadly weapon or dangerous instrument assault. Id. Roosevelt with in Once a bat, the we no course subtract evidence 6 of committing evidence remains that to aggravated Brown prove hit Brown knowingly possessed a deadly weapon or dangerous instrument when assaulting Roosevelt. ¶10 Brown Ariz. 533, cites 538, ¶ our 19, decision 968 in 606, P.2d State 611 v. Cornish, (App. 192 1998), as establishing that burglary is factually separate from a crime of violence that forced entry. is committed within the residence But Cornish is distinguishable. after a The defendant in that case pled guilty to second-degree burglary and attempted aggravated assault after he forcibly entered a residence and strangled a victim until she fell unconscious. 968 P.2d at 607. Id. at 534, ¶ 2, Second-degree burglary, unlike first-degree burglary, does not require proof that a defendant knowingly possess[ed] explosives, a deadly weapon or a dangerous instrument in the course of committing any theft or any felony. Compare A.R.S. § 13-1507(A) (2001) with § 13-1508(A). Rather, second-degree burglary only requires proof that a person . . . enter[ed] or remain[ed] unlawfully in or on a residential structure with the intent to commit any theft or any felony therein. A.R.S. § 13-1507(A). subtracted evidence of the Consequently, when the court strangulation, it was left with evidence of second-degree burglary, making the offenses separate ones. As set forth previously, see supra ¶ 9, it is not possible to subtract evidence of Brown s aggravated assault and 7 still prove first-degree burglary.4 Thus, the first prong of the Gordon analysis supports a conclusion that Brown committed a single criminal act for purposes of A.R.S. § 13-116. ¶11 Under the second prong of Gordon, whether, given the entire transaction, it we consider was factually impossible to commit the ultimate crime without also committing the secondary crime. If so, then the likelihood will increase that the defendant committed a single act under A.R.S. § 13116. Gordon, 161 Ariz. at 315, 778 P.2d at 1211. The State argues that because Roosevelt was in Roberta s apartment at the time of the attack, it would have been factually impossible for Brown to burglary. commit the assault without also committing the Brown does not rebut the State s argument, other than to make the bare assertion that the State s position should be rejected. ¶12 We derive guidance from this court s decision in State v. Alexander, 175 Ariz. 535, 858 P.2d 680 (App. 1993). In Alexander, the defendant was convicted as an accomplice to a burglary when his co-conspirators broke into a man s home and 4 The trial court neither instructed the jury on second-degree burglary as a lesser-included offense of first-degree burglary nor provided a form of verdict for that offense. Consequently, at the time the jury commenced its deliberations, it did not have the option of convicting Brown of second-degree burglary. Ariz. R. Crim. P. 23.3 ( The defendant may not be found guilty of any offense for which no form of verdict has been submitted to the jury. ). 8 robbed him. Id. at 536, 858 P.2d at 681. The defendant appealed his sentence, claiming he could not be ordered to pay multiple felony assessments because the burglary and robbery convictions were based on a single act under A.R.S. § 13-116. Id. at 537, 858 P.2d at 682. with the defendant based on the second prong of the Gordon analysis. Id. at 537-38, 858 P.2d at 682-83. The court agreed The court reasoned that robbery was the ultimate crime, and because the man was in his home when the robbery occurred, the robbery could not be committed without also burglarizing the home. ¶13 The facts in this case warrant the same conclusion as in Alexander. committing apartment. Id. at 538, 858 P.2d at 683. Brown could not assault Roosevelt without also burglary because Gordon s Roosevelt second prong was inside therefore Roberta s supports a conclusion that Brown committed a single act for purposes of A.R.S. § 13-116. ¶14 Finally, Gordon s third prong requires us to consider whether the defendant s conduct in committing the lesser crime caused the victim to suffer an additional risk of harm beyond that inherent in the ultimate crime. If so, then ordinarily the court should find that the defendant committed multiple acts and should receive consecutive sentences. 315, 778 P.2d at 1211. Gordon, 161 Ariz. at Because the initial two prongs of the Gordon test lead us to conclude that Brown committed a single 9 act for purposes of A.R.S. consider the third prong. § 13-116, however, we need not State v. Boldrey, 176 Ariz. 378, 382- 83, 861 P.2d 663, 667-68 (App. 1993) (concluding it unnecessary to reach third prong if first two prongs suggest defendant committed separate acts); see also Carreon, 210 Ariz. at 74-75, ¶¶ 105-106, 107 P.3d at 920-21 (refraining from third-prong analysis after initial two prongs revealed defendant committed separate crimes making consecutive sentences permissible). ¶15 for In summary, we hold that Brown committed a single act purposes burglary of and A.R.S. § aggravated 13-116 assault, by committing thereby first-degree requiring court to impose concurrent sentences on him. the trial Therefore, because the maximum possible sentence Brown could have received for his convictions was less than thirty years imprisonment, he was not entitled to a twelve-person jury. The trial court did not commit error by empanelling an eight-person jury. CONCLUSION ¶16 For the foregoing reasons, we affirm Brown s convictions and sentences. _______________________________________ Ann A. Scott Timmer, Judge CONCURRING: _____________________________ Donn Kessler, Presiding Judge _____________________________ Sheldon H. Weisberg, Judge 10
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.
