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

Not for Publication Rule 111, Rules of the Supreme Court

MEMORANDUM DECISION

ESPINOSA, Judge.

¶1 After a jury trial, Kenneth Brown was convicted of second-degree burglary and theft by control of property with a value less than $1,000. Based on two prior felony convictions, he was sentenced to a presumptive term of 11.25 years' imprisonment for the burglary and time served for the theft and ordered to pay restitution of $1,000. See A.R.S. § 13-703(J). On appeal, he contends one jury instruction erroneously commented on the evidence and there was insufficient evidence to support the amount of restitution. For the following reasons, we affirm in part and vacate in part.

Factual Background and Procedural History

¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the jury's verdicts, State v. Tucker, 231 Ariz. 125, ¶ 2, 290 P.3d 1248, 1253 (App. 2012), and the trial court's restitution order, State v. Lewis, 222 Ariz. 321, ¶ 2, 214 P.3d 409, 411 (App. 2009). In May 2011, Brown, his codefendant Jeremy Adams, and a third man used tin shears to cut the side of A.H.'s mobile home, kicked through the sheetrock and wood framing, entered the structure through the large hole, and removed a small safe containing stamps, keys, paperwork, and around $620 in cash. Brown and Adams left the home on bicycles, "snaking through the neighborhood" with the safe balanced on the handlebars of Brown's bicycle. The third man fled on foot. Brown and Adams rode to another mobile home park and went inside a residence. A neighbor called 9-1-1, and a sheriff's deputy responded, found the safe and a bicycle in the yard, and arrested both men. Adams pled guilty to second-degree burglary and was sentenced to 6.5 years' imprisonment. Brown was tried, convicted, and sentenced as described above. We have jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Discussion

Jury Instruction

¶3 Brown argues the trial court abused its discretion by instructing the jury:

Brown maintains, as he did below, that the first sentence of the instruction was a prohibited comment on the evidence, given his theory that Adams had been solely responsible for the burglary and robbery. See Ariz. Const. art. VI, § 27. We review a trial court's decision to give a jury instruction for an abuse of discretion, State v. Dann, 220 Ariz. 351, ¶ 51, 207 P.3d 604, 616-17 (2009), and review the legal adequacy of an instruction de novo, State v. Martinez, 218 Ariz. 421, ¶ 49, 189 P.3d 348, 359 (2008).

¶4 Brown first claims the trial court erred because it mistakenly believed it was instructing the jury in accordance with the applicable Revised Arizona Jury Instruction (RAJI), "Absence of Other Participant," which reads:

State Bar of Arizona, Revised Arizona Jury Instructions (Criminal) Std. 12, at 22 (2012) (expressly based upon the holding of State v. Cannon, 148 Ariz. 72, 79-80, 713 P.2d 273, 280-81 (1985)). Brown argues the trial court erred by including the first sentence of the instruction it gave1 because that sentence does not appear in the standard RAJI instruction. But the RAJI instructions are not mandatory, see State v. Logan, 200 Ariz. 564, ¶ 12, 30 P.3d 631, 633 (2001), and Brown cites no authority for his assertion that a court abuses its discretion by deviating from a RAJI instruction, absent an error of law. Furthermore, as Brown acknowledges, our supreme court has approved phrases similar to the one Brown challenges, in the identical context of a defendant asserting a defense of third-party culpability. See State v. Walton, 159 Ariz. 571, 583, 769 P.2d 1017, 1029 (1989) (approving "[i]t is no defense" language where defense argued someone else had committed crime), aff'd, 497 U.S. 639 (1990), overruled on other grounds by Ring v. Arizona, 536 U.S. 584 (2002); Cannon, 148 Ariz. at 79-80, 713 P.2d at 280-81 (same).

¶5 Brown further contends the first sentence of the instruction erroneously omitted the word "also," which appeared in the instruction approved by the supreme court in Cannon: "It is no defense to the crime charged against the defendant in this case that one or more other persons not now on trial may also have participated or cooperated in the crime thus charged." 148 Ariz. at 79, 713 P.2d at 280 (emphasis added). Brown asserts that without the word "also," the first sentence of the instruction implied that the jury could not acquit him even were it to believe Adams had been solely responsible for the crimes. See id. at 79-80, 713 P.2d at 280-81. Although Brown did not specifically refer to the omission of the word "also" in his argument before the trial court, he repeatedly asserted that his objection was to the first sentence of the court's instruction, which he contended constituted an improper comment on the evidence. This objection furnished the trial court a sufficient opportunity to provide a remedy. See State v. Petrak, 198 Ariz. 260, ¶ 27, 8 P.3d 1174, 1182 (App. 2000) (failure to use word "duplicity" in trial objection did not forfeit duplicitous-indictment argument on appeal). We therefore disagree with the state that Brown forfeited appellate review for all but fundamental, prejudicial error, and will consider his argument in light of his constitutional objection.2 See State v. Henderson, 210 Ariz. 561, ¶¶ 18-22, 115 P.3d 601, 607-08 (2005).

¶6 "Judges shall not charge juries with respect to matters of fact, nor comment thereon, but shall declare the law." Ariz. Const. art. VI, § 27. A trial court violates this prohibition when it expresses an opinion about what the evidence proves or otherwise interferes with the jury's independent evaluation of the evidence. State v. Roque, 213 Ariz. 193, ¶ 66, 141 P.3d 368, 388 (2006). But here, Brown does not argue the trial court "express[ed] its opinion to the jury as to what the evidence show[ed], or . . . misinform[ed] the jury that a fact [was] proven when the fact remain[ed] a subject of dispute." State v. Wolter, 197 Ariz. 190, ¶ 14, 3 P.3d 1110, 1113 (App. 2000). Instead, he asserts the court's instruction constituted a "misstatement of law" that effectively directed the jury to disregard evidence that he "was never there" during the burglary and that Adams had been solely responsible for the crimes.

¶7 "Challenges to jury instructions are evaluated in light of all of the instructions given." Cannon, 148 Ariz. at 80, 713 P.2d at 281. The jury was charged, "The only matter before you for your decision is whether the State has proved the defendant's guilt beyond a reasonable doubt." This correct statement of law directed the jury to determine whether Brown was guilty without speculating on the culpability of another, absent person. See id. The entirety of the court's instruction, though it differed slightly from that approved in Cannon by omitting the word "also," did not "`interfere with the jury's independent evaluation of . . . evidence'" favoring Brown's innocence. Roque, 213 Ariz. 193, ¶ 66, 141 P.3d at 388, quoting State v. Rodriguez, 192 Ariz. 58, ¶ 29, 961 P.2d 1006, 1011 (1998). We therefore find no error.

Restitution

¶8 Brown contends there was insufficient evidence to support the $1,000 restitution award to A.H. to compensate him for damage to his mobile home and his safe. He does not dispute that A.H. was entitled to restitution, or that the damage qualified as recoverable economic loss, but asserts the state failed to establish the amount of restitution by a preponderance of the evidence.

¶9 Before sentencing, Brown's attorney responded to the state's request for $1,000 in restitution, arguing,

The court subsequently ordered Brown to pay the requested $1,000 restitution, jointly and severally with Adam, as compensation for the damage to A.H.'s safe and mobile home. Brown made no further objection to the award.

¶10 "If a person is convicted of an offense, the court shall require the convicted person to make restitution to the person who is the victim of the crime or to the immediate family of the victim if the victim has died, in the full amount of the economic loss as determined by the court and in the manner as determined by the court . . . ." A.R.S. § 13-603(C). The court "is obligated to determine, by sufficient evidence, the amount of restitution owed by a defendant, unless he or she agrees to pay a specific amount." State v. Nuckols, 229 Ariz. 266, ¶ 5, 274 P.3d 536, 538 (App. 2012). "The state has the burden of proving a restitution claim by a preponderance of the evidence." Lewis, 222 Ariz. 321, ¶ 7, 214 P.3d at 412. Although a defendant has a due process right to challenge the information on which the amount of a restitution order is based, this right may be waived by a failure to request an evidentiary hearing or otherwise object to the amount imposed at sentencing. State v. Steffy, 173 Ariz. 90, 93, 839 P.2d 1135, 1138 (App. 1992).

¶11 The state asserts that Brown failed to object to the restitution award in the trial court, thereby waiving review for all but fundamental, prejudicial error. Brown counters he preserved his argument by questioning the value of the safe, and when he acknowledged responsibility for damages to the mobile home, it "triggered the State's burden to prove that damage, which it failed to do." However, although Brown argued no restitution was owed for the safe's contents, which he and Adam had been unable to remove from the safe, he did not argue the evidence was insufficient to support restitution for the damage done to the mobile home, nor did he request an evidentiary hearing to require the state to prove those damages. Because he did not make the specific argument he now urges, he forfeited review for all but fundamental, prejudicial error. See Lewis, 222 Ariz. 321, ¶ 13, 214 P.3d at 413; see also State v. Wideman, 165 Ariz. 364, 366-68, 798 P.2d 1373, 1375-77 (App. 1990) (defendant's objection to specific restitution items on ground they were inappropriate for restitution failed to preserve his appellate argument that trial court erred in awarding total restitution in excess of estimates provided by state at time defendant entered plea agreement). Brown has not argued or established fundamental error; that argument is therefore waived.3 See Lewis, 222 Ariz. 321, ¶ 13, 214 P.3d at 414; see also State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008).

¶12 Brown alternatively argues the trial court committed fundamental error and violated his Sixth Amendment right to a jury trial by ordering restitution without a jury finding, in contravention of the Blakely and Apprendi line of cases, citing Southern Union Co. v. United States, ___ U.S. ___, ___, 132 S.Ct. 2344, 2348-50 (2012) (jury must determine facts establishing criminal fine). See Apprendi v. New Jersey, 530 U.S. 466, 490 (2000) ("Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt."); see also Blakely v. Washington, 542 U.S. 296, 303 (2004) (statutory maximum for Apprendi purposes is maximum sentence judge may impose solely on basis of facts reflected in jury verdict or admitted by defendant). Brown acknowledges that the Blakely/Apprendi doctrine does not presently apply to restitution awards, but argues for its expansion on the ground that restitution has been characterized as "criminal punishment."

¶13 Contrary to Brown's suggestion, the purpose of the restitution awarded to A.H. was not punitive, see Steffy, 173 Ariz. at 94, 839 P.2d at 1139, but was "to make the victim whole," State v. Guilliams, 208 Ariz. 48, ¶ 12, 90 P.3d 785, 789 (App. 2004). Brown correctly points out that the Supreme Court stated in Pasquantino v. United States, 544 U.S. 349, 365 (2005), that "[t]he purpose of awarding restitution in this action" was "to mete out appropriate criminal punishment for [fraudulent] conduct." Despite the Court's linking restitution and criminal punishment, however, we do not believe the Court stated a rule that the purpose of restitution is to punish criminal offenders. Rather, in context, the statement merely clarifies that the restitution order was part of a criminal prosecution rather than an attempt to avoid the common-law revenue rule, which "bar[s] courts from enforcing the tax laws of foreign sovereigns." Id. at 352. Despite Brown's prediction that it "appears to be simply a question of time until the Blakely/Apprendi doctrine will be extended to cover restitution," we will not expand the reach of the doctrine absent some authority or compelling reason to do so. See State v. Keith, 211 Ariz. 436, ¶ 3, 122 P.3d 229, 230 (App. 2005) (appellate court will not anticipate how Supreme Court may rule in the future).

¶14 Although Brown has not raised the issue on appeal, we do, however, find fundamental error associated with the criminal restitution order (CRO). See A.R.S. § 13-18054; see also State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. entry, the trial court ordered that "all fees, assessments and restitution [be] reduced to a Criminal Restitution Order, with no interest, penalties or collection fees to accrue while [Brown] is in the Department of Corrections." But the imposition of a CRO before the expiration of Brown's sentence "`constitute[d] an illegal sentence, which is necessarily fundamental, reversible error.'" State v. Lopez, ___ Ariz. ___, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009). This is so even though the trial court ordered that the imposition of interest be delayed until after Brown's release. See id. ¶ 5.

Disposition

¶15 For the foregoing reasons, we vacate the CRO. Brown's convictions and sentences, including the restitution award, are otherwise affirmed.

GARYE L. VÁSQUEZ, Presiding Judge and VIRGINIA C. KELLY, Judge, concurring.