State v. McKenna
| Decision Date | 04 September 2009 |
| Docket Number | No. 2 CA-CR 2008-0104.,2 CA-CR 2008-0104. |
| Citation | 222 Ariz. 396,214 P.3d 1037 |
| Parties | The STATE of Arizona, Appellee, v. Fabian Alexander McKENNA, Appellant. |
| Court | Arizona Court of Appeals |
Terry Goddard, Arizona Attorney General By Kent E. Cattani, Joseph L. Parkhurst, and Laura P. Chiasson. Tucson, Attorneys for Appellee.
Robert J. Hirsh, Pima County Public Defender By David J. Euchner and Rose Weston, Tucson, Attorneys for Appellant.
¶ 1 After a jury trial, appellant Fabian McKenna was convicted of theft of a means of transportation and first-degree felony murder. He was sentenced to a term of natural life in prison for the murder conviction and to a consecutive, 11.25-year term for the theft. He appeals his convictions and sentences on a number of grounds. For the reasons set forth below, we affirm.
¶ 2 We view the facts in the light most favorable to upholding the convictions. State v. McCurdy, 216 Ariz. 567, ¶ 2, 169 P.3d 931, 934 (App.2007). In March 2007, McKenna went to the home of J. and his wife, C., around 11:00 p.m. Wearing a bandana over his face and carrying a gun, he entered an enclosed storage area and proceeded to the home's sliding-glass back door. J. and C. were preparing for bed when they heard a loud noise outside the kitchen. On entering the kitchen, they saw McKenna standing on the other side of the glass door. He tapped on the glass with the gun and motioned for them to open the door.
¶ 3 J. immediately began yelling at McKenna to leave, and C. went to another room to call 911. With the phone in hand, C. returned to the kitchen, where she saw McKenna continue to hit the door while her husband shouted at him. McKenna then raised the gun towards the couple, and J. told C. to run. As she ran down the hall, she heard a shot. She then heard J. beg, "[P]lease don't kill me," and heard a second shot. C. returned to the room and saw J. fall to the floor, gasping for air. McKenna was gone. J. died before emergency personnel arrived.
¶ 4 As he fled, McKenna left a trail of blood from the back door to the driveway. He was arrested three weeks later, after police matched his DNA1 to the blood left at the crime scene. He was charged with first-degree murder and, having fled the murder scene in a vehicle he had stolen earlier that day, theft of a means of transportation. The state sought a felony murder conviction based on its theory that McKenna killed J. in the course of either a burglary or attempted burglary or an armed robbery or attempted armed robbery. McKenna was found guilty, convicted, and sentenced as outlined above and this appeal followed.
¶ 5 McKenna contends his conviction for felony murder must be reversed because it was supported by insufficient evidence. In reviewing evidence presented at trial to determine whether substantial evidence supported the jury's verdict, we view the facts in the light most favorable to sustaining the verdict and resolve all reasonable inferences against McKenna.2 See State v Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d 912, 913-14 (2005). "A judgment of acquittal is appropriate when `no substantial evidence [exists] to warrant a conviction.'" State v. Nunez, 167 Ariz. 272, 278, 806 P.2d 861, 867 (1991), quoting State v. Clabourne, 142 Ariz. 335, 345, 690 P.2d 54, 64 (1984) (alteration in Nunez). Evidence is "substantial" when it is more than a mere scintilla and is proof that reasonable persons could accept as convincing beyond a reasonable doubt. Id.
¶ 6 To find McKenna guilty of felony murder, the jury was required to find that he had committed one of the predicate felonies enumerated in A.R.S. § 13-1105(A)(2) and that, "in the course of and in furtherance of the offense or immediate flight from the offense, [he had] ... cause[d] the death of any person." On appeal, McKenna does not dispute that he caused J.'s death but argues the state presented insufficient evidence that he committed any of the alleged predicate felonies: burglary, attempted burglary, armed robbery, or attempted armed robbery.
¶ 7 McKenna's challenge to the sufficiency of the evidence to support a conviction for either first-degree burglary or attempted first-degree burglary lacks merit. First-degree burglary is a specific-intent crime, requiring the state to prove McKenna had "enter[ed] or remain[ed] unlawfully in or on a residential structure with the intent to commit any theft or felony therein" while knowingly possessing a deadly weapon. A.R.S. §§ 13-1507(A), 13-1508(A). McKenna does not dispute that he entered or unlawfully remained in or on a residential structure or that he did so while armed with a deadly weapon. But he claims he did not commit or intend to commit a theft while at the victims' home. As he acknowledges, however, a burglary conviction can be premised on the intent to commit any felony, not just a theft. See § 13-1507(A).
¶ 8 C.'s undisputed testimony at trial was that McKenna had stood outside the victims' glass door, wearing a mask, holding a gun, and gesturing to be let in. He had "raised his hand up with the gun" pointed toward J. and C., and she testified that she was "screaming and just frantic." Clearly, any reasonable jury would conclude that, by threatening the couple with the gun, McKenna not only demonstrated an intent to commit, but actually committed, aggravated assault against each of the victims by using a deadly weapon to place them in "reasonable apprehension of immediate physical injury." A.R.S. §§ 13-1203(A)(2), 13-1204(A)(2). The evidence was thus overwhelming that McKenna committed first-degree burglary with the intent to commit aggravated assault. Because the state presented sufficient evidence to support a conviction for burglary and McKenna does not dispute that he caused J.'s death in the course of this event, the evidence supports the jury's guilty verdict for felony murder on this basis.
¶ 9 McKenna argues the state presented insufficient evidence to support a robbery conviction3 and the trial court committed fundamental error by instructing the jury on robbery as well as burglary. He maintains that by instructing the jury on robbery, the court subjected him to the possibility of a guilty verdict for felony murder that was potentially based on an underlying crime for which there was insufficient evidence to support a guilty verdict. We will not uphold a felony murder conviction when the evidence is insufficient to support a verdict of guilty on the foundational felony. See State v. Johnson, 215 Ariz. 28, ¶ 25, 156 P.3d 445, 451 (App.2007) (). However, a defendant is not entitled to a unanimous verdict on the precise manner in which a first-degree felony murder is committed. State v. Lopez, 163 Ariz. 108, 111-12, 786 P.2d 959, 962-63 (1990).
¶ 10 Assuming arguendo McKenna is correct that the state presented insufficient evidence of robbery, this case presents an issue not clearly governed by existing Arizona law. It is not akin to Johnson, where established case law required reversal because the state had failed to prove the one predicate felony alleged. 215 Ariz. 28, ¶ 25, 156 P.3d at 451. Nor is it clearly resolved by Lopez, which stands for the proposition that, when the state charges multiple predicate felonies in the alternative, the jury verdict need not be unanimous as to which one supported the defendant's felony murder conviction. 163 Ariz. at 111-12, 786 P.2d at 962-63. Neither party has cited any controlling authority, nor have we found any, establishing whether a felony murder conviction may be affirmed when the evidence may have been insufficient to support one of two or more alternatively charged predicate felonies.4 Decisions from other jurisdictions considering this precise issue do not reflect a consensus. Compare People v. Johnson, 6 Cal.4th 1, 23 Cal. Rptr.2d 593, 859 P.2d 673, 695-96 (1993) (), overruled in part on other grounds in People v. Rogers, 39 Cal.4th 826, 48 Cal. Rptr.3d 1, 141 P.3d 135 (2006) with State v. Maupin, 63 Wash.App. 887, 822 P.2d 355, 358-59 (1992) ().
¶ 11 Under the facts present here, we find that the California approach yields the most just and sensible result. McKenna's claim of insufficient evidence rests solely on his argument that the state did not sufficiently prove he had intended to take property from the victims. But he does not meaningfully dispute C.'s testimony about the factual events that occurred on the night of the shooting. As previously discussed, McKenna's actions gave rise to overwhelming evidence that he committed a burglary, one of the charged predicate offenses. His only dispute, therefore, is his claim that the state failed to prove that a further specific intent to rob the victims motivated the undisputed conduct that already constituted burglary, a felony sufficient to support a felony murder conviction. See § 13-1105(A)(2). However, whether the jury believed McKenna intended to take property from the victims is immaterial because the evidence unequivocally showed he killed J. in the course of committing a burglary; the alleged absence of proof of his further intent to rob the victims in no way affects his legal culpability for J.'s death. Cf. Drew v. State, 76 S.W.3d 436, 457 (Tex.App. 2002) (). Rather, had the jury believed McKenna committed a robbery,5 it would have merely ascribed to him the further intent to...
To continue reading
Request your trial
-
State v. Kasic
...view the facts in the light most favorable to sustaining the jury verdicts and resolve all reasonable inferences against Kasic. State v. McKenna, 222 Ariz. 396, ¶ 5, 214 P.3d 1037, 1040 (App.2009). Evidence sufficient to support a conviction can be direct or circumstantial. State v. Pena, 2......