State v. Tarantino

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE

STATE OF ARIZONA, Appellee,

v.

JAMES TARANTINO, SR., Appellant.

No. 1 CA-CR 14-0785
FILED 11-3-2015

Appeal from the Superior Court in Mohave County
No. S8015CR201301197
The Honorable Derek Carlisle, Judge

AFFIRMED

COUNSEL

Arizona Attorney General, Phoenix
By Myles A. Braccio
Counsel for Appellee

Deputy Legal Advocate Attorney, Kingman
By Jill L. Evans
Counsel for Appellant

STATE v. TARANTINO, SR.
Decision of the Court

MEMORANDUM DECISION

Judge Jon W. Thompson delivered the decision of the Court, in which
Presiding Judge Randall M. Howe and Judge Lawrence F. Winthrop joined.

T H O M P S O N, Judge:

¶1 James Tarantino, Sr. (defendant) appeals from his conviction
and sentence for felony criminal littering. For the following reasons, we
affirm.

FACTUAL AND PROCEDURAL HISTORY

¶2 One evening in September 2013, J.C. was out for a walk in
Kingman when he observed defendant driving a truck “heaped full” of
trash including construction debris and tree branches. The truck ran several
stop signs. Suspecting that defendant was heading for an area known to be
used for illegal dumping, J.C. and his father jumped in their truck and
headed to the dump site. When they arrived, defendant had almost
completely unloaded the truck. J.C. observed defendant throwing a large
piece of debris that “was white and had some wood on it” onto a heap of
trash and load a wheelbarrow onto the truck. The bed of the truck was
empty except for the wheelbarrow. J.C. called the police and waited with
his father for them to arrive. While J.C. and his father were waiting,
defendant’s truck broke down about thirty yards away. Defendant asked
J.C. and his father for a jump start and they refused. Eventually defendant
was able to start his truck and leave; J.C. and his father followed him to a
convenience store. They waited across the street until the police arrived.

¶3 The state charged defendant with one count of criminal
littering of more than three hundred pounds of litter, a class 6 felony. A
jury trial was held. At the close of the state’s case, defendant unsuccessfully
moved for a judgment of acquittal. The jury convicted defendant as
charged. The trial court suspended the imposition of sentencing and placed
defendant on probation for three years, with fifteen days in jail. Defendant
timely appealed. We have jurisdiction pursuant to Arizona Revised
Statutes (A.R.S.) sections 12-120.21(A)(1) (2003), 13-4031 (2010), and 13-
4033(A) (2010).

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STATE v. TARANTINO, SR.
Decision of the Court

DISCUSSSION

¶4 Defendant raises two issues on appeal: 1) whether there was
insufficient evidence to support the verdict, and 2) whether the jury
instructions and verdict form failed to instruct the jury that it had to find
the element of the weight of the litter beyond a reasonable doubt.

A. Defendant’s Motion for Judgment of Acquittal

¶5 We review the trial court’s denial of a motion for judgment of
acquittal de novo. State v. Bible, 175 Ariz. 549, 595, 858 P.2d 1152, 1198
(1993). We view the facts in the light most favorable to sustaining the
verdict. State v. Atwood, 171 Ariz. 576, 596, 832 P.2d 593, 613 (1992). We do
not reweigh the evidence, and will affirm if substantial evidence supports
the verdict. State v. Scott, 177 Ariz. 131, 138, 865 P.2d 792, 799 (1993).

¶6 Sufficient evidence supports the jury’s verdict that defendant
committed felony criminal littering of an amount in excess of three hundred
pounds in weight. J.C. observed the trash in defendant’s truck before he
dumped it. Defendant’s truck had plywood extending from the sides of the
truck’s bed to allow it to carry more, and the bed was piled high with trash,
including construction debris and tree branches. J.C. who had “remodeled
many homes” estimated that the trash dumped by defendant weighed
“[f]ive hundred pounds, upwards.”

¶7 Kingman police officer Jesse Kennedy observed the piles of
trash that J.C. pointed out to police. He testified that one pile appeared to
contain construction materials, including multiple pieces of plywood and
insulation. There was a separate pile of tree branches. Officer Kennedy
attempted to pick up one piece of plywood and estimated that just that one
piece of wood weighed approximately one hundred pounds. Officer
Kennedy, who had previously worked in construction, estimated that the
debris weighed between four and five hundred pounds.

¶8 “Lay witnesses may give opinion testimony, even as to the
ultimate issue, when it is ‘rationally based on the perception of the witness
and . . . helpful to a clear understanding of the witness’ testimony or the
determination of a fact in issue.’” State v. Doerr, 193 Ariz. 56, 63, ¶ 20, 969
P.2d 1168, 1175 (1998) (quoting Ariz. R. Evid. 701)); see also Morris K. Udall
et al., Arizona Practice Law of Evidence § 21 (3rd ed. 1991) (explaining that lay
witness opinion is competent on subjects including “weights, measures,
time, and distance”). Here, a reasonable juror could conclude, based on the
testimony of Officer Kennedy and J.C., that the trash dumped by defendant
weighed more than three hundred pounds. Accordingly, we find no error

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STATE v. TARANTINO, SR.
Decision of the Court

in the trial court’s denial of defendant’s motion for judgment of acquittal or
in the jury’s verdict.

B. Final Jury Instructions and Verdict Form

¶9 Defendant next argues that the final jury instructions and
verdict form failed to properly instruct the jury that it had to find the
element of the weight of the litter beyond a reasonable doubt. At trial,
defendant argued that the final jury instruction for criminal littering
omitted the requisite weight amount. “We review for an abuse of discretion
whether the trial court erred in giving or refusing to give requested jury
instructions,” but review de novo whether the jurors were properly
instructed. State v. Dann, 220 Ariz. 351, 363-64, ¶ 51, 207 P.3d 604, 616-17
(2009) (citations and internal quotes omitted). We will consider the jury
instructions as a whole “to determine whether the jury received the
information necessary to arrive at a legally correct decision.” Id.

¶10 Although not addressed in the final closing jury instructions,
the trial court verbally instructed the jurors that if they found defendant
guilty of criminal littering they would need to find, beyond a reasonable
doubt, whether the trash weighed more than three hundred pounds:

THE COURT: The first verdict form says: [We,
the jury, . . . do find] [t]he defendant guilty of
the crime of criminal littering. This is the
verdict form the presiding juror would sign if
all eight of you agreed that the State had proved
beyond a reasonable doubt the defendant
committed the crime of criminal littering.

If you make that decision, then you have to
make . . . another decision. And that says: We
further find (check only one) the litter weighed
more than 300 pounds, the litter weighed more
than 100 pounds but less than 300 pounds, the
litter weighed 100 pounds or less.

So if you decide that the State had proved beyond a
reasonable doubt the defendant committed the crime
of criminal littering, then you also have to decide
whether the State has proved beyond a reasonable
doubt that the litter weighed more than 300 pounds,
that it weighed more than 100 pounds but less
than 300 pounds or that it weighed 100 pounds

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STATE v. TARANTINO, SR.
Decision of the Court

or less, and you would check the appropriate
line with respect to that verdict form.
(Emphasis added).

The verdict form ultimately used by the jurors stated that the jury found
that 1) defendant was guilty of criminal littering and 2) that the litter
weighed more than three hundred pounds. Further, the final written jury
instructions correctly instructed the jurors on the meaning of reasonable
doubt. Because the trial court instructed the jury that it had to find the
weight of the litter beyond a reasonable doubt, and the jurors had all of the
information they needed to arrive at a legally correct decision, we find no
error.

CONCLUSION

¶11 For the foregoing reasons, we affirm defendant’s conviction
and sentence.

:ama

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