State v. Rivero

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, Appellee, v. VLADIMIR B. RIVERO, Appellant. ) ) ) ) ) ) ) ) ) ) No. DIVISION ONE FILED: 04-20-2010 PHILIP G. URRY,CLERK BY: GH 1 CA-CR 09-0154 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR 2007-008924-011 DT The Honorable Lisa Roberts, Judge Pro Tempore AFFIRMED Terry Goddard, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Craig W. Soland, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Christopher V. Johns, Deputy Public Defender Attorneys for Appellant Phoenix J O H N S E N, Judge ¶1 Vladimir Rivero appeals his conviction of trafficking in stolen property in the second degree, a Class 3 felony. He argues the superior court erred by instructing the jury on the definitions of intentionally and knowingly when have been convicted upon proof of mere recklessness. he could We affirm his conviction and resulting sentence. FACTUAL AND PROCEDURAL HISTORY ¶2 Rivero was charged with violating Arizona Revised Statutes ( A.R.S. ) section 13 2307(A) (2001), which states, A person who recklessly traffics in the property of another that has been stolen is guilty of trafficking in stolen property in the second degree. ¶3 on At trial, the State requested the jury be instructed the knowingly definitions and of three recklessly. mental Rivero states, objected, intentionally, arguing that instructing the jury on intentionally and knowingly would confuse the jury because the charge against him only required the State to prove he acted recklessly. ¶4 The superior court stated, Well what I find is that there is a possibility that the jurors will conclude that the mental state that was proven in this case is actually intentionally or knowingly, so I am going to give the included mental state instruction and because I m going to give that instruction, I believe there does need to be a definition of knowingly or intentionally otherwise the included mental state dash [sic] recklessly instruction will not have any meaning unless those two mental states are defined for the jurors. 2 ¶5 The agree that court then because the asked the included attorneys, mental Does states Counsel dash [sic] recklessly instruction is going to be given that the jurors need to have a definition of knowingly and intentionally? and defense counsel both answered affirmatively. defense stated: counsel object to the mental-state The State At no time did instruction that If the State is required to prove that the defendant acted recklessly, that requirement is satisfied if the State proves that the Defendant acted intentionally or knowingly. ¶6 Accordingly, the jury was instructed on the elements of the offense, No. 1, the Defendant recklessly trafficked in the property stolen. of another and No. 2, the property had been The court also gave three instructions that included definitions of intentionally or with intent to, knowingly and recklessly. The court instructed the jury that recklessly means with respect to a result or to a circumstance described by a statute defining an offense that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. ¶7 Rivero was convicted and sentenced to an aggravated term of 12 years imprisonment. He timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona 3 Constitution, and A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010) and -4033(A)(1) (2010). DISCUSSION ¶8 We review a superior court s decision to give a jury instruction for an abuse of discretion. State ex rel. Thomas v. Granville, 211 Ariz. 468, 471, ¶ 8, 123 P.3d 662, 665 (2005). We consider whether the jury was properly instructed reviewing the jury instructions as a whole. by State v. Dann, 220 Ariz. 351, 363, ¶ 51, 207 P.3d 604, 616 (2009). We will not reverse taken on this ground unless the whole, would mislead the jury. instructions, as a State v. Rutledge, 197 Ariz. 389, 393, ¶ 15, 4 P.3d 444, 448 (App. 2000). ¶9 Rivero argues the jury instructions had the practical effect of lowering the burden of proof for the prosecution because he could have been convicted upon a showing that he acted knowingly Rivero s rather objection than in recklessly. the superior As noted, court was however, that the instructions defining intentionally and knowingly would confuse the jury. The Arizona Supreme Court has held that raising one objection at trial does not preserve another objection on appeal. State v. Long, 119 Ariz. 327, 328, 580 P.2d 1181, 1182 (1978). Rivero s counsel, moreover, ultimately agreed to the instruction. 4 ¶10 When a defendant does not object instruction, we review for fundamental error. 220 Ariz. 49, Fundamental 50, error prove error. ¶ 2, review 202 P.3d requires 514, that a jury State v. Garcia, 515 the to (App. 2008). defendant first State v. Henderson, 210 Ariz. 561, 568, ¶ 23, 115 P.3d 601, 608 (2005). We hold that the superior court committed no error in the jury instructions. ¶11 A person acts recklessly when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. § 13-105(10)(c). Intentionally and knowingly, by A.R.S. contrast, refer to an intent or knowledge that an outcome will occur, not the risk that it will occur. A.R.S. § 13-105(10)(a), (b). Thus, proving that one acted recklessly is less burdensome than proving that one acted knowingly or intentionally. This conclusion is supported by A.R.S. § 13-202(C), which states, If acting recklessly suffices to establish an element, that element also is established knowingly. statute, if a person acts intentionally or The jury was instructed in accordance with this and, as noted, Rivero did not object to that instruction. ¶12 Citing State v. Noriega, 144 Ariz. 258, 697 P.2d 341 (App. 1985), however, Rivero argues that by instructing the jury on the definitions of knowingly and intentionally, the court 5 incorrectly stated the state s burden. In Noriega, we held a court misstated the law relating to A.R.S. § 13-2307 when it instructed the jury that [a] person who recklessly trafficks [sic] in the property of another that the defendant knows, or should have known has been stolen, is guilty of trafficking in stolen property in the second degree. 341 (emphasis in original). We Id. at 258, 697 P.2d at held this instruction was erroneous because it allowed the jury to convict based upon an objective standard of knowledge, which place[d] a lesser burden of proof upon the prosecution than does the recklessness test. Id. at 259, 697 P.2d at 342. ¶13 Rivero argues the Noriega court held that knowingly is an objective standard and therefore a lesser standard than recklessly. Not so. In Noriega we addressed a recklessness instruction that used the phrase should have known. instruction was given in this case. quoted at length a law review No such Indeed, the Noriega court article that explained that reducing the mental-state requirement for trafficking in stolen property from knowingly to recklessly makes it easier to prove conduct without creating an objective test that would be unfair to defendants. Id. (quoting G. Robert Blakey and Michael Goldsmith, Criminal Redistribution of Stolen Property: The Need for Law Reform, 74 Mich. L. Rev. 1511, 1559-61 (1976)). case makes clear that it is 6 a lesser burden to The prove recklessness than to prove that a defendant acted knowingly. See State v. Hurley, 197 Ariz. 400, 403, ¶ 14, 4 P.3d 455, 458 (2000) ( recklessly is a lesser-included mental state of knowingly ); see also State v. DiGiulio, 172 Ariz. 156, 161, 835 P.2d 488, trafficking 493 (App. requires the 1992) ( Even state to show though second degree that defendant acted recklessly, that culpable mental state was established by proof of a higher mental state, that he acted knowingly. ). ¶14 We discern no error because the jury instructions as a whole ensured the jury fully understood the law it was to apply. See Dann, 220 Ariz. at 363-64, ¶ 51, 207 P.3d at 616-17. CONCLUSION ¶15 For the foregoing reasons, we affirm the conviction and resulting sentence. /s/_______________________________ DIANE M. JOHNSEN, Judge CONCURRING: /s/________________________________ PATRICIA A. OROZCO, Presiding Judge /s/________________________________ JON W. THOMPSON, Judge 7

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