State v. Clark

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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. BENJAMIN RUDY CLARK, Appellant. ) ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 09-0537 DIVISION ONE FILED: 10-21-2010 RUTH WILLINGHAM, ACTING CLERK BY: GH DEPARTMENT C MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2008-163601-001 DT The Honorable F. Pendleton Gaines, Judge AFFIRMED Terry Goddard, Attorney General Phoenix by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Sherri Tolar Rollison, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender by Eleanor S. Terpstra, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 Defendant, Benjamin shoplifting conviction. Rudy Clark, challenges his For the following reasons we affirm. FACTUAL AND PROCEDURAL BACKGROUND 1 ¶2 Defendant and his girlfriend were running errands on October 9, 2008. nearby pet store. While she was shopping, Defendant went into a The storeowner greeted Defendant, and later saw him near the store exit holding an African Grey parrot. The storeowner questioned Defendant about the bird, and Defendant claimed ownership of the bird. An employee counted the store s African Grey parrots and noticed one was missing. ¶3 Defendant, who had left the store, was located at the back of the shopping center. relinquished the bird. the police were called. After being confronted, Defendant The bird was returned to the store, and Defendant was subsequently arrested in a nearby apartment complex. ¶4 felony. Defendant was charged with shoplifting, a class six On the first day of the two-day trial, the trial court read and provided the jury with the preliminary instructions, which included witness credibility. After the presentation of evidence, but before closing arguments, there was a hearing to 1 We view the evidence in the light most favorable to sustaining the verdict and resolve all inferences against Defendant. State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997). 2 discuss the final jury instructions. During the hearing, the court stated: I repeat in the final jury instructions only those that have constitutional reference to them . . . . I don t repeat the boiler plate about circumstantial evidence, credibility of the witnesses. Those are in the preliminaries. I tell them they are preliminaries, to consider the preliminaries with the finals. ¶5 There was no objection. Subsequently, the court instructed the jury: You should consider and follow those instructions together with the preliminary instructions you were given at the beginning of the trial. If an earlier instruction is repeated here, that is done for clarity or emphasis only. ¶6 The jury returned a guilty verdict. After he was sentenced, Defendant appealed, and we have jurisdiction pursuant to Article Arizona 6, Section Revised 9, Statutes of the Arizona ( A.R.S. ) Constitution, sections and 12-120.21(A)(1) (2003), 13-4031 and -4033 (2010). DISCUSSION ¶7 Defendant contends that the trial court erred by failing to reinstruct the jury on witness credibility during the final jury court s instructions. practice as Because required by 3 he did Arizona not object Rule of to the Criminal Procedure 21.3(c), 2 we will only review for fundamental error. State v. Henderson, 210 Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). Defendant bears the burden of establishing that the trial court erred, that the error was fundamental, and that the error caused him prejudice. ¶8 Our supreme Id. at 568, ¶ 22, 115 P.3d at 608. court has stated that preliminary instructions cannot be a substitute for final instructions, and judges must instruct juries on basic legal principles, including burden of proof and reasonable doubt, following the evidence and before the commencement of deliberations. State v. Johnson, 173 Ariz. 274, 276, 842 P.2d 1287, 1289 (1992). ¶9 706, In State v. Alvarez, 205 Ariz. 110, 112, ¶ 3, 67 P.3d 708 (App. 2003), however, we held that there was no fundamental error when the trial court failed to reinstruct the jury on certain preliminary instructions. Although the court instructed the jury on the burden of proof, the elements of the offenses, and reasonable doubt, the court did not repeat the preliminary instructions concerning direct and circumstantial evidence, objections, witness credibility, and expert opinion. Id. at ¶ 2. We found that the defendant waived any arguable error by not objecting to the trial court s omission of those 2 No party may assign as error on appeal the court s giving or failing to give any instruction . . . unless the party objects thereto before the jury retires to consider its verdict . . . . Ariz. R. Crim. P. 21.3(c). 4 instructions and that the resulting error, approach the level of fundamental error. ¶10 Defendant distinguishable. argues, if any, did not Id. at ¶ 3. however, that Alvarez is Specifically, he argues that the trial court minimized the importance of the omitted instruction when it told the jury repeated in this here, case that is that done [i]f for an earlier clarity or instruction emphasis is only. Although reinstructing the jury on all relevant instructions, including witness credibility, is the better practice and removes the appellate argument, the statement does not give rise to fundamental error. In fact, the court also informed the jury that it was to consider the preliminary instructions and that it was responsible for determining the facts of the case. Because we presume that the jury followed the instructions, State v. LeBlanc, 186 Ariz. 437, 439, 924 P.2d 441, 443 (1996), it is unlikely that the jury was misled. See State v. Johnson, 205 Ariz. 413, 417, ¶ 10, 72 P.3d 343, 347 (2003) ( We will reverse a conviction when the instructions, taken as a whole, may have misled the jury. ). ¶11 Consequently, we find no fundamental error. Because there is no fundamental error, we need not address Defendant s arguments on prejudice. Ariz. at 569, ¶ 26, 115 P.3d at 608. 5 See Henderson, 210 CONCLUSION ¶12 Based on the foregoing, we affirm Defendant s conviction and sentence. /s/ ________________________________ MAURICE PORTLEY, Presiding Judge CONCURRING: /s/ ____________________________ MARGARET H. DOWNIE, Judge /s/ ____________________________ PATRICIA A. OROZCO, Judge 6

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