                                                                      FILED BY CLERK
                            IN THE COURT OF APPEALS                      DEC -1 2009
                                STATE OF ARIZONA                          COURT OF APPEALS
                                  DIVISION TWO                              DIVISION TWO




THE STATE OF ARIZONA,                      )          2 CA-CR 2008-0294
                                           )          DEPARTMENT A
                               Appellee,   )
                                           )          OPINION
              v.                           )
                                           )
DANNY LOUIS MUSGROVE,                      )
                                           )
                              Appellant.   )
                                           )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR-20061370

                      Honorable Howard Fell, Judge Pro Tempore

                      AFFIRMED IN PART; VACATED IN PART



Terry Goddard, Arizona Attorney General
 By Kent E. Cattani and Jonathan Bass                                           Tucson
                                                                 Attorneys for Appellee

Harriette P. Levitt                                                             Tucson
                                                                 Attorney for Appellant


H O W A R D, Chief Judge.



¶1            After a jury trial, appellant Danny Musgrove was convicted of one count of

first-degree murder, one count of conspiracy to commit first-degree murder, and two
counts of endangerment.      The trial court sentenced him to concurrent terms of life

imprisonment for the murder and conspiracy to commit murder convictions and to two

consecutive terms of 2.25 years’ imprisonment for the endangerment convictions.

Musgrove raises numerous issues on appeal. For the reasons stated below, we affirm his

convictions and sentences for first-degree murder and endangerment, but vacate his

conviction and sentence for conspiracy to commit murder.

                                       Background

¶2            “We view the facts in the light most favorable to sustaining the

convictions.” State v. Robles, 213 Ariz. 268, ¶ 2, 141 P.3d 748, 750 (App. 2006).

Musgrove and the victim were involved in a physical fight. After the fight, Musgrove

went to the victim’s home, opened a side door, and shot the victim several times, killing

him. Musgrove was charged with and subsequently convicted of the victim’s murder and

other, related charges. This appeal followed.

                                  Fabricated Evidence

¶3            Musgrove seeks reversal of his convictions arguing that “tainted” and

“fabricated” evidence was introduced at trial, violating his right “to a fair trial and due

process under the law.” But he did not request any relief from the trial court based on

this allegation and has forfeited the right to seek relief on this basis absent fundamental,

prejudicial error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607

(2005) (objection not preserved at trial forfeited on appeal absent fundamental,

prejudicial error). He does not argue that fundamental error occurred here, and we find

none sua sponte. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140

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(App. 2008) (failure to allege fundamental error on appeal waives argument); State v.

Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) (court will not ignore

fundamental error it discovers). Musgrove has neither alleged nor shown fundamental,

prejudicial error.

                                Prosecutorial Misconduct

¶4            Musgrove next argues he should be granted a new trial due to alleged

prosecutorial misconduct relating to a specific line of questioning at trial. But he did not

move for a new trial below, nor did his objection based on relevance preserve a claim of

prosecutorial misconduct. See State v. Rutledge, 205 Ariz. 7, ¶ 30, 66 P.3d 50, 56 (2003)

(claim reviewed only for fundamental error when objection below not on grounds of

prosecutorial misconduct). Thus, he has forfeited his right to seek relief on appeal for all

but fundamental, prejudicial error. See Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d at

607. And, because Musgrove does not assert the error was fundamental, even after the

state noted that the claim had been forfeited, the issue is waived on appeal, see Moreno-

Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d at 140, although the court will not ignore

fundamental error if it sees it, Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d at 650.

                          Circumstantial Evidence Instruction

¶5            Musgrove next argues the trial court erred in refusing to give his requested

jury instruction on circumstantial evidence. We review a court’s denial of a requested

jury instruction for an abuse of discretion. State v. Cox, 214 Ariz. 518, ¶ 16, 155 P.3d

357, 360 (App.), aff’d, 214 Ariz. 353, 174 P.3d 265 (2007).



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¶6            “A party is entitled to an instruction on any theory reasonably supported by

the evidence.” State v. Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d 1006, 1009 (1998).

However, a court need not give an instruction that is covered adequately by other

instructions, State v. Hoskins, 199 Ariz. 127, ¶ 75, 14 P.3d 997, 1015 (2000), and should

reject a “proffered jury instruction that misstates the law or has the potential to mislead or

confuse the jury.” State v. Rivera, 177 Ariz. 476, 479, 868 P.2d 1059, 1062 (App. 1994).

“[T]he test is whether the instructions adequately set forth the law applicable to the case.”

Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d at 1009. In determining whether the court’s

instructions set forth the applicable law, we view them in their entirety. Id. at 61-62, 961

P.2d at 1009-10.

¶7            Musgrove does not contend that the circumstantial-evidence instruction

given to the jury was erroneous. Instead, he claims the trial court should have given his

proposed jury instruction because it “explained more clearly to the jury how to rely on

circumstantial evidence.” But, as the state notes, Musgrove’s requested instruction draws

a distinction between the weight assigned to circumstantial versus direct evidence by

implying that a greater degree of proof is required for the jury to rely on circumstantial as

opposed to direct evidence. In State v. Harvill, our supreme court held that “direct and

circumstantial evidence are [of] intrinsically similar [probative value]; therefore, there is

no logically sound reason for drawing a distinction as to the weight to be assigned each.”

106 Ariz. 386, 391, 476 P.2d 841, 846 (1970). Additionally, the instructions given by the

court set forth the applicable law. See Rodriguez, 192 Ariz. 58, ¶ 16, 961 P.2d at 1009

(trial court not required to give requested instruction when “its substance is adequately

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covered by other instructions). The court therefore was not required to give Musgrove’s

requested instruction and did not err in refusing to do so.

                          Lesser Included Offense Instructions

¶8             Musgrove further argues the trial court erred in failing to instruct the jury

on the elements of the lesser included offense of the charge of first-degree murder. The

state contends the failure to give this instruction was invited error because, although

Musgrove initially had requested a lesser included offense instruction, he later withdrew

his request.    We will not reverse, even for an allegedly fundamental error, if the

defendant invited the error. State v. Fish, 222 Ariz. 109, ¶ 79, 213 P.3d 258, 281 (App.

2009). The invited-error doctrine exists to prevent a party from inserting error in the trial

court proceedings and then profiting from such error on appeal. State v. Logan, 200 Ariz.

564, ¶ 11, 30 P.3d 631, 633 (2001).

¶9             Here, Musgrove expressly informed the trial court that he did not want a

lesser included offense instruction, implicitly agreeing with the state that the evidence did

not support such an instruction.      Because he expressly waived any lesser included

instruction, even if the failure to give the instruction was error, such error was invited,

and we will not reverse for that reason. See Fish, 222 Ariz. 109, ¶ 80, 213 P.3d at 281.

                            Motion for Judgment of Acquittal

¶10            Musgrove finally argues that he was placed in double jeopardy as to count

two of the indictment, charging conspiracy to commit first-degree murder, when the trial

court granted a motion for judgment of acquittal on that count and then reversed itself.

He did not raise this issue below, so he has forfeited all but fundamental error review.

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See Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607. Double jeopardy violations,

however, are fundamental error, and we review de novo an assertion that a double

jeopardy violation occurred. State v. Price, 218 Ariz. 311, ¶ 4, 183 P.3d 1279, 1281

(App. 2008).

¶11             Following Musgrove’s motion pursuant to Rule 20, Ariz. R. Crim. P., for a

judgment of acquittal on all counts, the state submitted the issue on the evidence without

argument.     The trial court acquitted Musgrove on count two of the indictment, the

conspiracy charge, citing a lack of substantial evidence. When the state said it was

confused by the court’s ruling, the court said: “I DV’d the conspiracy.” When the state

then asked to be allowed to argue its position, the court said: “Go ahead. You have

already submitted it, and I am not going to change my mind.” But after the state

presented its argument, the court reversed its ruling, thereby allowing count two to go to

the jury.     The minute entry likewise reflects that the court entered a “judgment of

acquittal as to [c]ount [t]wo” and then reversed itself. The jury found Musgrove guilty on

this count.

¶12             In State v. Newfield, 161 Ariz. 470, 472, 778 P.2d 1366, 1368 (App. 1989),

this court held that the trial court did not err when it considered a motion for judgment of

acquittal, seemed to state that it would grant it, but was subsequently persuaded to deny

the motion after continuing discussion between the parties.        In contrast, in State v.

Millanes, 180 Ariz. 418, 421-23, 885 P.2d 106, 109-11 (App. 1994), we held that a trial

court’s reversal of a judgment of acquittal had placed the defendant in double jeopardy

because the transcript and the court’s minute entry left no question that an acquittal had

                                             6
been granted. Id. at 422, 885 P.2d at 110. In Millanes, this court distinguished Newfield

because there the trial court had merely considered Newfield’s motion before denying it,

rather than having granted an acquittal it later reversed. Id. We stated:

              Whether the state attempts to do it by bringing a second
              indictment, appealing the acquittal to a higher court, or, as
              occurred here, by directly seeking to have the trial court
              reverse its ruling of acquittal makes no difference. In any of
              these situations, there would have to be further fact-finding
              proceedings for the state to obtain a conviction. Regardless
              of the manner, “subjecting the defendant to post-acquittal
              factfinding proceedings going to guilt or innocence violates
              the Double Jeopardy Clause.”

Id. at 423, 885 P.2d at 111, quoting Smalis v. Pennsylvania, 476 U.S. 140, 145 (1986).

¶13           Here, the trial court clearly granted Musgrove’s motion for a judgment of

acquittal; the reporter’s transcript and the court’s minute entry both reflect this ruling.

For the state then to secure a conviction on the conspiracy charge there would have had to

be “further fact-finding proceedings.” Millanes, 180 Ariz. at 423, 885 P.2d at 111.

Millanes makes clear that a trial court’s reversing its own decision will not avert a double

jeopardy violation. See id.

¶14           The state contends Newfield is controlling and attempts to distinguish

Millanes by arguing that the break in proceedings there between the trial court’s

judgment of acquittal and its reversal of that judgment was a key factor in the appellate

court’s analysis. But granting a judgment of acquittal is an event with legal significance,

and double jeopardy attaches immediately. See Lemke v. Rayes, 213 Ariz. 232, ¶ 19, 141

P.3d 407, 414 (App. 2006). Although in Millanes, this court did mention the break in

proceedings when distinguishing Newfield, we relied most heavily on the Newfield

                                             7
court’s determination that the motion for judgment of acquittal only had been considered

but not actually decided before being denied. 180 Ariz. at 422, 885 P.2d at 110. Because

we find Millanes to be controlling, we hold that the trial court’s reversal of its judgment

of acquittal placed Musgrove in double jeopardy, and we, therefore, vacate his conviction

and sentence for conspiracy to commit first-degree murder.

                                       Conclusion

¶15           In light of the foregoing, we affirm Musgrove’s convictions and sentences

for first-degree murder and both counts of endangerment. We vacate his conviction and

sentence for conspiracy to commit first-degree murder.




                                             JOSEPH W. HOWARD, Chief Judge

CONCURRING:




PHILIP G. ESPINOSA, Presiding Judge




GARYE L. VÁSQUEZ, Judge




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