DocketNumber: No. 5938
Citation Numbers: 138 Ariz. 365, 678 P.2d 946
Judges: Cameron, Determination, Feldman, Gordon, Hays, Holohan, Matter
Filed Date: 3/1/1984
Status: Precedential
Modified Date: 6/26/2022
Appellant, David Lee Gooch, was convicted after trial by a jury of negligent homicide, and was sentenced to the presumptive term of six years imprisonment. We affirm.
The essential facts are that appellant loaned a loaded gun to his co-defendant, Wussler, after appellant learned that Wussler wanted to shoot someone. Shortly before the shooting, appellant drove Wussler to a location near the victim’s apartment, but did not attend the shooting. Wussler fatally shot the victim with the gun loaned by appellant. Our decision affirming Wussler’s conviction and sentence includes additional facts related to the killing. See State v. Wussler, 139 Ariz. 428, 679 P.2d 74 (1984).
Appellant raises one issue on appeal: whether the trial court committed reversible error by refusing to instruct the jury about the crime of facilitation. See A.R.S. § 13-1004. Appellant argues that facilitation is a lesser included offense of the greater offense, second-degree murder
The facilitation instruction would have been proper if facilitation
Once the offense is found to be an included one, the court must then consider whether the evidence supports the requested instruction.
In the case at bench, second-degree murder by statute and as charged could indeed have been committed without thereby committing facilitation. We find no error in the trial court’s refusal to instruct on facilitation.
Even though appellant could have been prosecuted for facilitation, that possibility does not affect the decision of whether the instruction is proper. See State v. Politte, 136 Ariz. 117, 121, 664 P.2d 661, 665 (App.1982) (“The appellant is not entitled to an instruction on another offense [facilitation] even though he might have been charged with and convicted of that offense.”)
We have reviewed the record for error under A.R.S. § 13-4035 and found none. The judgments of conviction and sentence are affirmed.
. Appellant was charged originally with first-degree murder, but at the close of the state’s case the trial court granted appellant’s motion for directed verdict as to the first-degree murder charge. The court instructed the jury on the lesser-included offenses of second-degree murder, manslaughter, and negligent homicide.
. § 13-1004. Facilitation; classification
A. A person, other than a peace officer acting in his official capacity within the scope of his authority and in the line of duty, commits facilitation if, acting with knowledge that another person is committing or intends to commit an offense, such person knowingly provides such other person with means or opportunity for the commission of the offense and which in fact aids such person to commit the offense.
B. Facilitation is a:
1. Class 5 felony if the offense facilitated is a class 1 felony.
2. Class 6 felony if the offense facilitated is a class 2 or class 3 felony.
3. Class 1 misdemeanor if the offense facilitated is a class 4 or class 5 felony.
4. Class 3 misdemeanor if the offense facilitated is a class 6 felony or a misdemeanor.
. In Luttrell v. Commonwealth, 554 S.W.2d 75 (Ky.1977) criminal facilitation was held to be a lesser included offense of the substantive offense charged. The decision was based on a construction of the Kentucky statute defining lesser included offenses. The Kentucky statute concerning lesser included offenses is much more expansive than the Arizona definition of lesser included offenses.