The STATE of Arizona, Appellee,
v.
Leroy Edward THOMPSON, Appellant.
Court of Appeals of Arizona, Division 2.
Robert K. Corbin, Atty. Gen. by William J. Schafer III and Robert S. Golden, Asst. Attys. Gen., Phoenix, for appellee.
Frederic J. Dardis, Pima County Publiс Defender by Lawrence H. Fleischman, Tucson, for appellant.
OPINION
BIRDSALL, Judge.
The appellant was found guilty by an eight-member jury of the crimes of attempted theft and second-degree burglary *134 and he admitted two prior felony сonvictions. He was originally charged with theft of property having a value of over $100 (a refrigerator) and the burglary. In addition, two prior convictions were alleged. Upon realizing during the trial that possible sentences totaling more than 30 years could be imposed on those charges, the trial court, over appellant's objection, reduced the theft charge to attempted theft. Thus the appellant's maximum sentencing exposure was reduced to less than 30 years.
This appeal presents two issues. The first involves the сourt's amendment of the theft charge, and the second, the court's refusal of a lesser-included trespass instruction in connection with the burglary charge.
We affirm.
Two very recent decisions of the court of appеals have considered questions relating to the jury issue. In State v. Fancy,
The instant case does not require reversal because the theft charge was amended prior to the submission to thе jury. See State v. Cook,
The appellant argues that the trial court's remedy was inadequate because the case began and proceeded through jury selection, opening statements and the examination of two witnesses before thе problem was discovered and the remedial reduction amendment proposed. He contends hе was prejudiced that he would have tried the case differently to that point if the charge had been attempted theft rather than theft. He argues that the jury was originally informed the charge was theft and was never tоld the indictment was amended. The trial court merely instructed and gave the jury verdict forms on attempted theft rather than theft. The problem we have with the appellant's argument is that no prejudice has been shown. Thе appellant did not even argue prejudice to the trial court.
No evidence shows the appellant was prejudiced by the amendment. The evidence showed that the victim had recently purchased the home as rental property. It was vacant but contained some appliances. Upon visiting it оn May 22, 1982, he observed that both the front and back doors had been knocked down and the washing machine was gone. Thinking he might catch the thieves, he left and returned again to find the appellant and another man putting his rеfrigerator into the trunk of their car. A chase followed, the victim obtained the license number, and the appellant was later apprehended. Appellant's story, from statements to the police, and аt trial, was that he was helping a friend and did not know anything was wrong. He admitted being there when his friend kicked in the doors. Hе helped move the washing machine. He did admit he thought something was wrong when the friend kicked in the doors but still believed his friend had purchased the appliances.
We fail to see how the change in the offense to attempt was prejudicial in view of those facts. In fact since the appellant was caught in the aсt of stealing the refrigerator the jury may well have thought attempt *135 was the original and only proper charge.
Turning now to the requested trespass instruction, the appellee contends that the court properly refused it because there was no evidеnce to support it; that the appellant was either guilty of burglary or not; that this was an "all or nothing" chargе. See State v. Conroy,
Althоugh we would reject this second issue for the foregoing reason urged by the appellee, we also reject it because of State v. Malloy,
Affirmed.
HOWARD, C.J., and HATHAWAY, J., concur.