                                IN THE
              ARIZONA COURT OF APPEALS
                              DIVISION TWO


                       THE STATE OF ARIZONA,
                              Appellee,

                                   v.

                     GREGORY CHARLES RHOME,
                            Appellant.

                       No. 2 CA-CR 2013-0346
                        Filed August 19, 2014


         Appeal from the Superior Court in Cochise County
                         No. CR201200582
             The Honorable John F. Kelliher Jr., Judge

                              VACATED


                               COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Amy M. Thorson, Assistant Attorney General, Tucson
Counsel for Appellee

Harriette P. Levitt, Tucson
Counsel for Appellant


                               OPINION

Judge Howard authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Vásquez concurred.
                          STATE v. RHOME
                         Opinion of the Court


H O W A R D, Judge:

¶1           Gregory Rhome was convicted by a jury of first-degree
failure to appear in connection with a felony. On appeal, he argues
the trial court made various erroneous rulings and that insufficient
evidence supported the jury’s verdict. Because we agree the
evidence was insufficient, we vacate Rhome’s conviction and
sentence.

                 Factual and Procedural Background

¶2           Rhome failed to appear for a scheduled hearing in
connection with a criminal charge in October 2012. He was charged
and convicted as noted above, and sentenced to an enhanced prison
term of eight years. We have jurisdiction over his appeal pursuant
to A.R.S. §§ 12-120.21(A)(1) and 13-4033(A)(1).

                     Sufficiency of the Evidence

¶3            Rhome first argues that insufficient evidence supported
the jury’s verdict because the state did not present any evidence that
the hearing at which he failed to appear was in connection with a
felony. When considering claims of insufficient evidence, we view
the facts in the light most favorable to sustaining the jury’s verdict
and resolve all reasonable inferences against Rhome. See State v.
Kasic, 228 Ariz. 228, ¶ 29, 265 P.3d 410, 416 (App. 2011).

¶4           Rhome failed to raise this specific argument at trial, and
we therefore review only for fundamental, prejudicial error. See
State v. Zinsmeyer, 222 Ariz. 612, ¶ 27, 218 P.3d 1069, 1080 (App.
2009) (sufficiency of evidence claim not raised below reviewed for
fundamental error), overruled on other grounds by State v. Bonfiglio, 231
Ariz. 371, 295 P.3d 948 (2013). But both the Arizona and United
States Constitutions guarantee every criminal defendant the right to
have “‘a jury find him guilty of all the elements of the crime with
which he is charged.’” State v. Martinez, 210 Ariz. 578, ¶ 7, 115 P.3d
618, 620 (2005), quoting United States v. Booker, 543 U.S. 220, 230
(2005); U.S. Const. amend. VI; Ariz. Const. art. II, § 24. And the state
has the “burden to prove all elements of the offense, beyond a


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                          STATE v. RHOME
                         Opinion of the Court

reasonable doubt.” State v. Sucharew, 205 Ariz. 16, ¶ 32, 66 P.3d 59,
69 (App. 2003). Thus, “‘convictions [must] rest upon a jury
determination that the defendant is guilty of every element of the
crime with which he is charged, beyond a reasonable doubt.’” State
v. Carreon, 210 Ariz. 54, ¶ 46, 107 P.3d 900, 910 (2005), quoting United
States v. Gaudin, 515 U.S. 506, 510 (1995) (alteration in Carreon).
Fundamental error therefore occurs when a person is convicted of
“‘a crime when the evidence does not support a conviction.’” State
v. Stroud, 209 Ariz. 410, n.2, 103 P.3d 912, 914 n.2 (2005), quoting State
v. Roberts, 138 Ariz. 230, 232, 673 P.2d 974, 976 (App. 1983).

¶5           Section 13-2507(A), A.R.S., pursuant to which Rhome
was convicted, states that “[a] person commits failure to appear in
the first degree if, having been required by law to appear in
connection with any felony, such person knowingly fails to appear
as required, regardless of the disposition of the charge requiring the
appearance.” Rhome argues that the state did not meet its burden of
proof because it did not present any evidence that he had been
facing a felony charge in the underlying criminal case.

¶6           At trial, the jury heard testimony from the judge and
Rhome’s attorney in the underlying criminal case; evidence also
included several transcripts and minute entries indicating that
Rhome was present when the hearing date was set, but failed to
appear at the hearing. None of these witnesses, transcripts, or
minute entries indicated, however, what the underlying criminal
charges were or that they were felonies. Based on the record before
us, “‘there is a complete absence of probative facts to support [the
jury’s] conclusion.’” Kasic, 228 Ariz. 228, ¶ 29, 265 P.3d at 416,
quoting State v. Carlisle, 198 Ariz. 203, ¶ 11, 8 P.3d 391, 394 (App.
2000) (alteration in Kasic).

¶7           The state contends that the issue of whether an offense
is a felony is a question of law and not an element of the offense,
citing State v. Smith, 126 Ariz. 534, 617 P.2d 42 (App. 1980). But
Smith concerns whether an out-of-state crime is a felony or
misdemeanor for impeachment purposes in Arizona, an issue “to be
decided by the trial court and not the jury.” Id. at 536, 617 P.2d at 44.
Section 13-2507(A), on the other hand, criminalizes the failure to
appear in connection with a felony, making the classification of the

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                          STATE v. RHOME
                         Opinion of the Court

charge an element of the offense that must be proven to a jury
beyond a reasonable doubt. See Carreon, 210 Ariz. 54, ¶ 46, 107 P.3d
at 910. Therefore, the state has failed to show that the charge’s
classification in this case is an issue of law for the court.

¶8            The state further asks that we take judicial notice that
the underlying criminal charges were felonies.              Rule 201(b),
Ariz. R. Evid., provides that a court may take judicial notice of any
fact that “is generally known within the trial court’s territorial
jurisdiction; or . . . can be accurately and readily determined from
sources whose accuracy cannot reasonably be questioned.” And a
court may properly take judicial notice of its own records. See id.; see
also In re Sabino R., 198 Ariz. 424, ¶ 4, 10 P.3d 1211, 1212 (App. 2000).
But if a trial court does take judicial notice of a fact in a criminal
case, “the court must instruct the jury that it may or may not accept
the noticed fact as conclusive.” Ariz. R. Evid. 201(f).

¶9            Accordingly, a fact may not be removed from the jury’s
consideration simply because the trial court took judicial notice of
that fact. See id.; see also United States v. Chapel, 41 F.3d 1338, 1342
(9th Cir. 1994) (trial court does not “usurp the jury’s fact-finding role
by taking judicial notice” if court instructs jury that it is not required
to accept fact as conclusive); United States v. Mentz, 840 F.2d 315, 318-
20 (6th Cir. 1988) (error to instruct jury to conclusively accept
judicially noticed fact that bank was insured at time of robbery, an
essential element of the offense, as it “had the effect of relieving the
government of its burden of proving, beyond the jury’s reasonable
doubt, that the accused committed the crimes charged”). 1 We
therefore reject the state’s request that we take judicial notice of the
classification of the charges.


      1The  portion of Rule 201(f) pertaining to criminal cases was
added in 2011 to conform the Arizona rule to the Federal rule. Ariz.
Sup. Ct. Order R-10-0035, 9-10 (Sept. 8, 2011); see also Fed. R. Evid.
201(f). Therefore, we find these federal authorities persuasive. See
State v. Campoy, 220 Ariz. 539, ¶ 108, 207 P.3d 792, 799 (App. 2009)
(Arizona courts look to federal case law when interpreting Arizona
rule based on its federal counterpart).


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                          STATE v. RHOME
                         Opinion of the Court

¶10           The state maintains this court may nonetheless take
judicial notice of an element of the offense, relying on Sabino R., 198
Ariz. 424, ¶ 4, 10 P.3d at 1212. In that case, a juvenile “was
adjudicated delinquent for aggravated assault and underage
consumption of alcohol.” Id. ¶ 1. During trial, the state failed to
produce evidence that the juvenile was underage. Id. ¶ 2. On
appeal, this court took judicial notice of the fact that the juvenile was
underage because “[t]he juvenile court could have taken judicial
notice of its files, which contain Sabino’s birth-date, and thus have
found him to be under age 21.” Id. ¶ 5.

¶11            But Sabino R. involved a juvenile delinquency
proceeding, in which the judge, and not a jury, acts as the trier of
fact. See Ariz. R. P. Juv. Ct. 6. Thus, taking judicial notice of the
defendant’s age on appeal did not take away the jury’s fact-finding
responsibility. See Martinez, 210 Ariz. 578, ¶ 7, 115 P.3d at 620.
Consequently, Sabino R. does not support the state’s argument that
this court may take judicial notice of an element of a criminal offense
for the first time on appeal.

¶12           Furthermore, were this court to judicially notice the
felonious nature of Rhome’s underlying charges, it would effectively
deny him the right to have a jury determine his guilt based on proof
as to all the elements of the offense. Thus, taking judicial notice of
an element of the offense for which no evidence was presented at
trial would violate Rhome’s constitutional rights and be contrary to
the rules of criminal procedure. See Chapel, 41 F.3d at 1342; see also
Mentz, 840 F.2d at 318-20; Martinez, 210 Ariz. 578, ¶ 7, 115 P.3d at
620; Ariz. R. Evid. 201(f).

¶13          The state also points out that the bench warrant in the
underlying case initially was published to the jury in its entirety and
that it showed the charges against Rhome. The charges, however,
were redacted before the bench warrant was sent into the jury room.
The trial court redacted the charges without explanation presumably
because it concluded they constituted inadmissible evidence,2 and


      Rhome requested the redaction and the prosecutor
      2

immediately agreed, stating “I didn’t realize they were in there or I

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                        STATE v. RHOME
                       Opinion of the Court

the jury therefore was not allowed to consider them. See State v.
May, 210 Ariz. 452, ¶¶ 22-23, 112 P.3d 39, 45 (App. 2005)
(inadmissible evidence may not establish element of the offense).
Additionally, the trial record, and therefore the record on appeal,
contains only the redacted version of the bench warrant.
Accordingly, this court cannot tell what was excised from the
warrant and thus what evidence initially was presented to the jury
during trial. Because this court cannot confirm that the record
contains evidence that the charges were felonies, we cannot agree
with the state’s contention.

                            Disposition

¶14          Having determined that fundamental error occurred
because insufficient evidence supported the jury’s verdict, we vacate
Rhome’s conviction and sentence.3 See Kasic, 228 Ariz. 228, ¶ 31, 265
P.3d at 416.




would have redacted it myself.” And the state does not argue on
appeal that evidence of the exact charges was otherwise admissible.
      3Because we are vacating Rhome’s conviction and sentence,
we need not address the other issues he has raised on appeal.


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