State v. Taylor

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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. DAVID WAYNE TAYLOR, Appellant. ) ) ) ) ) ) ) ) ) ) ) 1 CA-CR 09-0628 DIVISION ONE FILED: 02/17/11 RUTH WILLINGHAM, ACTING CLERK BY: DLL DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2007-176688-001 DT The Honorable Robert L. Gottsfield, Judge AFFIRMED Thomas C. Horne, Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Jeffrey L. Sparks, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender by Joel M. Glynn, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 David Wayne Taylor ( Defendant ) appeals conviction for possession of burglary tools. from his For the following reasons, we affirm. FACTS AND PROCEDURAL HISTORY 1 ¶2 While surveilling an East Phoenix apartment complex in an unmarked police vehicle on February 6, 2007, Officer Brill noticed Defendant driving a gray Dodge truck. the license stolen. plate and learned that the Officer Brill ran vehicle was recently He radioed for support and pursued Defendant with the assistance of other officers, who were driving both unmarked and marked police vehicles. ¶3 Defendant began driving aggressively, and stopped the vehicle in the parking lot of an apartment complex. passenger ran away from the truck. Both He and his were quickly apprehended. ¶4 Officer Brill found a black nylon zippered bag that contained crack cocaine inside the truck. He also noticed that the truck s ignition was damaged, and a non-factory key, which in his opinion resembled vehicle s ignition. a manipulation key, was in the When Officer Tennyson asked about the key, 1 We view the facts and all reasonable inferences therefrom in the light most favorable to sustaining the convictions. State v. Powers, 200 Ariz. 123, 124, ¶ 2, 23 P.3d 668, 669 (App. 2001). 2 Defendant replied when you re high on dope, you don t pay theft of means of attention to things like that. ¶5 Defendant was charged with transportation, possession of burglary tools, and possession of a narcotic drug. At trial, Defendant testified that he was unaware the truck was stolen and that he did not notice the damaged ignition. He believed that both the truck and the cocaine belonged to his passenger, who had allowed him to drive. He also testified that he fled because his passenger was a prostitute and had drugs. ¶6 The jury found Defendant guilty on all three counts. He then admitted to being on release at the time of the incident and having two prior historical felonies. He received concurrent sentences of 11.25 years for the theft of means of transportation, ten years for the possession of narcotics, and 3.75 years for possession of burglary tools. Defendant only challenges possession his burglary tools. Section 9, of conviction and sentence for of We have jurisdiction pursuant to Article 6, the Arizona Constitution and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1) (2003), 13-4031 and -4033(A)(4) (2010). 2 2 We cite the current version of a statute unless there has been a material revision. 3 DISCUSSION ¶7 Defendant argues that the instruction on possession of burglary tools was improper. instruction misstated elements of burglary. ¶8 only the Specifically, he argues that the law because it did not define the We disagree. Because he did not object to the instruction, we will review for fundamental error. State v. Henderson, Ariz. 561, 567, ¶ 19, 115 P.3d 601, 607 (2005). 210 Defendant, therefore, bears the burden of establishing that the trial court erred, that the error was fundamental, and that the error caused him prejudice. ¶9 Id. at 568, ¶ 22, 115 P.3d at 608. We review whether jury instructions accurately state the law de novo. 1325, 1327 State v. Orendain, 188 Ariz. 54, 56, 932 P.2d (1997). The instructions, viewed as whole, provide the jury with an accurate statement of the law. must State v. Rios, 217 Ariz. 249, 250, ¶ 5, 172 P.3d 844, 845 (App. 2007); State v. Cox, 217 Ariz. 353, 356, ¶ 15, 174 P.3d 265, 268 (2007); see State v. Bruggeman, 161 Ariz. 508, 510, 779 P.2d 823, 825 (App. 1989). ¶10 Section 13-1505 (2010) defines the offense possession of burglary tools as follows: A. A person commits possession of burglary tools by: 1. Possessing instrument any or 4 explosive, tool, other article of adapted or commonly used for committing any form of burglary as defined in sections 13-1506, 131507 and 13-1508 and intending to use or permit the use of such an item in the commission of a burglary. 2. B. Buying, selling, transferring, possessing or using a motor vehicle manipulation key or master key. Subsection A, paragraph 2 of this section does not apply to a person who either: . . . 2. ¶11 Transfers, possesses or uses no more than one manipulation key, unless the manipulation key is transferred, possessed or used with the intent to commit any theft or felony. 3 Expressed differently, § 13-1505 creates a single offense possession of burglary tools with multiple means to satisfy the actus reus requirement. See State v. Manzandeo, 210 Ariz. 292, 294, ¶¶ 7-9, 110 P.3d 1026, 1028 (App. 2005) (discussing and a single offense that may be violated through various actions). A person, the difference therefore, commits between the separate offense of offenses possession of burglary tools by either: (1) possessing any article adapted 3 A manipulation key is a key, device or instrument, other than a key that is designed to operate a specific lock, that can be variably positioned and manipulated in a vehicle keyway to operate a lock or cylinder, including a wiggle key, jiggle key or rocker key. A.R.S. § 13-1501(8) (2010). 5 or commonly used for committing any form of burglary . . . and intending to use . . . such item in the commission of a burglary, or (2) buying, selling, transferring, possessing or using a motor vehicle manipulation key or master key. A.R.S. § 13-1505(A)(1)-(2). ¶12 Here, the Defendant was indicted for violating § 13- 1505(A)(2) possessing or using a motor vehicle manipulation key and the definition. 4 the final evidence introduced at trial concerned that Prior to closing arguments, the trial court read instructions to the jury. The court s oral instruction accurately described possession of burglary tools as defined by § 13-1505(A)(2). 5 Because § 13-1505(A)(1) was not implicated, the trial court was not required to instruct the jury on the definition of burglary. The court s 4 oral The State concedes that the evidence introduced at trial established that Defendant possessed only one manipulation key. The State, therefore, was required to prove that Defendant possessed the manipulation key with the intent to commit any theft or felony. A.R.S. § 13-1505(A)(2), (B)(2). 5 The oral instruction provided: The crime of burglary tools requires proof of the following: One, Possessing or using a motor vehicle manipulation key; two, with the intent to commit any theft. Manipulation Key means a key, device or instrument other than a key that is designed to operate a specific lock that can be variably positioned and manipulated in a vehicle key way to operate a lock or cylinder, including a wiggle key, jiggle key or rocker key. 6 instruction, therefore, correctly stated the law and did not constitute an error. ¶13 The written instruction that was provided to the jury, however, read: The crime of possession of burglary requires proof of the following: tools 1. 2. ¶14 Possessing any tool, instrument or other article adapted or commonly used for committing a burglary, such as a motor vehicle manipulation key; and Intending to use or permit the use of such an item in the commission of a burglary. During deliberation, the jury instruction on the definition of burglary. requested a written The trial court then realized that its written instruction for possession of burglary tools was incorrect and provided the jury with a corrected original written instruction that matched the prior oral instruction. 6 ¶15 Although the trial court s instruction misstated the law, the court corrected its error by providing the jury with an accurate instruction prior to the verdict. State v. Ramirez, 178 Ariz. 116, 126, 871 P.2d 237, 6 Although the trial court s oral or revised written instruction did not define theft, the jury was instructed on theft of means of transportation pursuant to A.R.S. § 13-1814 (2010), and the State, during closing arguments, indicated that if the jury found defendant guilty of using the manipulation key to steal the vehicle, then it satisfied the theft requirement of possession of burglary tools. See Bruggeman, 161 Ariz. at 510, 779 P.2d at 825 ( Closing arguments of counsel may be taken into account when assessing the adequacy of jury instructions. ). 7 247 (1994) (holding that the trial court has a duty to clarify jury confusion when the earlier instructions are inadequate); State v. Govan, 154 Ariz. 611, 613, 744 P.2d 712, 714 (App. 1987) ( [I]f it appears that a mistake or oversight needs to be corrected, the court may send the jury back for further deliberations with additional instructions before receiving its determination as a verdict. ). Additionally, the jury indicated, upon questioning from the trial court and before the verdict was read, that it understood the revised instruction. We presume that the jury followed the corrected instruction. State v. Newell, 212 Ariz. 389, 403, ¶ 68, 132 P.3d 833, 847 (2006). Defendant, therefore, has failed to prove fundamental error. CONCLUSION ¶16 Based on the foregoing, we affirm Defendant s conviction and sentence. /s/ __________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ _______________________________ PETER B. SWANN, Presiding Judge /s/ _______________________________ PATRICK IRVINE, Judge 8

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