State v. Brown, 2 CA-CR 2016-0018
| Decision Date | 12 January 2017 |
| Docket Number | No. 2 CA-CR 2016-0018,2 CA-CR 2016-0018 |
| Parties | THE STATE OF ARIZONA, Appellee, v. DAVID WAYNE BROWN, Appellant. |
| Court | Arizona Court of Appeals |
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24.
Appeal from the superior Court in Pima County
The Honorable Howard Fell, Judge Pro Tempore
AFFIRMED
Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee
Steven R. Sonenberg, Pima County Public Defender
By David J. Euchner, Assistant Public Defender, Tucson
Counsel for Appellant
Judge Vásquez authored the decision of the Court, in which Presiding Judge Howard and Chief Judge Eckerstrom concurred.
¶1 After a jury trial, David Brown was convicted of three counts of armed robbery. The trial court sentenced him to concurrent prison terms of 9.25 years. On appeal, Brown argues the state presented insufficient evidence to support his convictions. He also contends the court erred by giving a jury instruction that commented on the evidence. For the following reasons, we affirm.
¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to upholding Brown's convictions. See State v. Almaguer, 232 Ariz. 190, ¶ 2, 303 P.3d 84, 86 (App. 2013). One night in April 2013, Brown walked into a convenience store in east Tucson and asked the clerk, D.S., for cigarettes. As D.S. rang up the cigarettes, Brown demanded money from the cash register. D.S. noticed a bulge in Brown's pocket, which Brown was grabbing at as he told D.S. that he had a gun. After Brown threatened to shoot, D.S. gave Brown the cigarettes and approximately $100 cash.
¶3 The next night, Brown walked into another eastside convenience store, asked for cigarettes, and then demanded money. Brown told the clerk, K.L., that he had a gun, and he "put[] his hand in his pocket to indicate" as much. K.L. complied, and Brown left with the cigarettes and less than $30 cash.
¶4 The following night, Brown walked into another eastside convenience store, asked for a couple packs of cigarettes, and then told the clerk, Z.T., to "open up the register." Brown threatened to shoot, and Z.T. noticed a "gun shaped" bulge in Brown's waist area that he kept grabbing. After Z.T. pretended topress a panic button to alert the police, Brown grabbed the cigarettes off the counter, along with some nearby candy, and left the store.
¶5 A grand jury indicted Brown for three counts of armed robbery. He was convicted as charged and sentenced as described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
¶6 Brown argues the state presented insufficient evidence to support his armed robbery convictions. We review de novo the sufficiency of the evidence. State v. Snider, 233 Ariz. 243, ¶ 4, 311 P.3d 656, 658 (App. 2013). "[T]he relevant question is whether, after viewing the evidence in the light most favorable to the prosecution, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt." State v. West, 226 Ariz. 559, ¶ 16, 250 P.3d 1188, 1191 (2011), quoting State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). We will reverse only if no substantial evidence supports the conviction. State v. Rivera, 226 Ariz. 325, ¶ 3, 247 P.3d 560, 562 (App. 2011). "Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant's guilt beyond a reasonable doubt." Id., quoting State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996). Substantial evidence may be direct or circumstantial. State v. Fischer, 219 Ariz. 408, ¶ 42, 199 P.3d 663, 674 (App. 2008).
¶8 As he did below, Brown maintains that his armed robbery convictions must be reduced to simple robbery convictions because the state failed to present substantial evidence of a deadly weapon or simulated deadly weapon. According to Brown, the issue is "whether a hand under clothing can be a 'simulated deadly weapon'" for purposes of § 13-1904(A). The parties agree that State v. Garza Rodriguez, 164 Ariz. 107, 791 P.2d 633 (1990), and State v. Bousley, 171 Ariz. 166, 829 P.2d 1212 (1992), are the key cases on this issue.
¶9 In Garza Rodriguez, the defendant was charged with two counts of armed robbery. 164 Ariz. at 108, 791 P.2d at 634. In the first incident, the defendant approached the counter at a gas station and, "keeping her right hand out of sight, told the cashier to give her all of his money." Id. After the defendant said she was serious and would "shoot the smile off" the cashier's face, he gave her about $40. Id. In the second incident, at a nearby convenience store, the defendant "approached the clerk and told him to give her his money." Id. The defendant stated she had a gun, and the clerk testified that the defendant was "moving her hands back and forth under the serape she was wearing." Id. The clerk gave the defendant about $30, and she left. Id. The jury found the defendant guilty of armed robbery for the first incident and simple robbery for the second. Id.
¶10 On appeal, the defendant argued the state had presented insufficient evidence to support the armed robbery conviction for the first incident. Id. Our supreme court agreed, reducing the conviction to simple robbery. Id. at 112-13, 791 P.2d at 638-39. In relevant part, the court explained that "a weapon, whether it be an actual deadly weapon, a dangerous instrument, or asimulated deadly weapon, must actually be present and used in a threatening manner to satisfy the 'threatens to use' element of the armed robbery statute." Id. at 112, 791 P.2d at 638. The court observed, "Although the first victim testified that [the] defendant implied the existence of a gun by saying she would 'shoot the smile off his face,' he never saw a weapon." Id.
¶11 Two years later, in Bousley, our supreme court clarified its reasoning in Garza Rodriguez. There, two defendants—Bousley and Ellison—each entered plea agreements on two counts of armed robbery. Bousley, 171 Ariz. at 166-67, 829 P.2d at 1212-13. According to the factual bases for Bousley's pleas, he entered a convenience store, "held his hand under his clothing in such a way that he appeared to have a handgun in his pocket," and demanded money. Id. at 167, 829 P.2d at 1213. The clerk locked the register, and Bousley grabbed cigarettes as he left. Id. That same day, Bousley entered another convenience store, "positioned his hand under his clothing in a way that made it appear as if he had a handgun under his shirt," and demanded money from the clerk. Id. After Bousley threatened to "blast" the clerk, she opened the register. Id. Bousley took $100 and left in a car driven by Ellison. Id. According to the factual bases for Ellison's pleas, Ellison and Bousley entered a gas station, demanded money from the clerk, and took $74 from the register. Id. "During the course of the robbery, both Ellison and Bousley held their hands under their clothing in such a way that they appeared to have handguns in their pockets." Id. The factual basis for Ellison's second conviction matched that of Bousley's. Id.
¶12 On appeal, the supreme court evaluated "whether [the] defendants' conduct satisfie[d] the elements of § 13-1904." Bousley, 171 Ariz. at 168, 829 P.2d at 1214. The court recognized its prior holding in Garza Rodriguez but pointed out that "[t]he crucial fact" in that case was that "nothing resembling a weapon was actually present; the defendant simply implied that she had a gun when she threatened to 'shoot the smile off' the cashier's face." Bousley, 171 Ariz. at 168, 829 P.2d at 1214. The court noted, in contrast, the defendants in Bousley had done more—"they positioned their hands under their clothing in such a way that they appeared to have deadly weapons." Id. Thus, the court concluded that "simulateddeadly weapons were actually present" and affirmed the defendants' convictions. Id.
¶13 Brown attempts to distinguish this case from Bousley. He argues that, because Bousley involved plea agreements, "[t]he only proposition [that case] stands for is that it is theoretically possible for a hand under clothing to be a simulated deadly weapon." He further asserts that Garza Rodriguez "shows that this theoretical possibility is speculative in a jury trial setting."
¶14 Brown is correct that the factual basis needed to support a guilty plea is different from the state's burden of proof in a criminal trial. See State v. Salinas, 181 Ariz. 104, 106, 887 P.2d 985, 987 (1994) (), quoting State v. Wallace, 151 Ariz. 362, 365, 728 P.2d 232, 235 (1986); see also State v. Edmisten, 220 Ariz. 517, ¶ 6, 207 P.3d 770, 773 (App. 2009) (). However, Brown's reliance on this concept is misplaced because Bousley did not address, much less base its holding on, this...
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