State v. Rios

• Decision Date: 17 July 2007
• Docket Number: No. 1 CA-CR 05-1091.,1 CA-CR 05-1091.
• Parties: STATE of Arizona, Appellee, v. Rafael RIOS, Jr., Appellant.
• Court: Arizona Court of Appeals

172 P.3d 844

217 Ariz. 249

STATE of Arizona, Appellee, v. Rafael RIOS, Jr., Appellant.

No. 1 CA-CR 05-1091.

Court of Appeals of Arizona, Division 1, Department E.

July 17, 2007.

Terry Goddard, Attorney General, by Randall M. Howe, Chief Counsel, Criminal Appeals Section, and Robert A. Walsh, Assistant Attorney General, Phoenix, Attorneys for Appellee.

James Haas, Maricopa County Public Defender, by Charles R. Krull, Deputy Public Defender, Phoenix, Attorneys for Appellant.

OPINION

BROWN, Judge.

¶ 1 Rafael Rios, Jr. challenges his felony murder conviction, arguing that the trial court committed reversible error by instructing the jury that Rios could be convicted as an accomplice even if he was not present at the scene of the crime. Rios further contends that the court erred in refusing to instruct the jury that he could be liable for felony murder only if he was "both an accomplice and a participant" in the underlying attempted armed robbery. For the reasons set forth below, we affirm.

BACKGROUND

¶ 2 The evidence at trial showed that Rios and some friends decided to rob a marijuana dealer. Rios arranged to meet the dealer for the ostensible purpose of buying two pounds of marijuana. Rios told his friends what to do. Rios approached the dealer's truck at the designated meeting place and time, and explained that he had been able to come up with only a portion of the purchase price. When the dealer informed Rios that he would not sell the marijuana for less than the agreed-upon price, Rios walked away from the truck. Rios' friends approached the truck and demanded that the dealer and his companion exit the truck. When the dealer acted like he was reaching for a firearm, one friend pulled out a gun and shot and killed the dealer. Rios was not with his friend by the truck at the time, but he was seen nearby immediately afterward.

¶ 3 A jury convicted Rios of two counts of attempted armed robbery and one count of first-degree felony murder. Rios filed a timely appeal, challenging only his conviction for felony murder, which was based on a theory of accomplice liability for the attempted armed robberies.

DISCUSSION

¶ 4 Rios argues that the trial court committed reversible error by erroneously instructing the jury on the requirements for felony murder based on the theory of accomplice liability. Rios asked the trial court to instruct the jury that "[t]he defendant may not be convicted of felony murder unless he was both an accomplice and a participant in the underlying felony," in reliance on language in Evanchyk v. Stewart, 202 Ariz. 476, 480, ¶ 14, 47 P.3d 1114, 1118 (2002). The trial court denied the request, ruling that accomplice liability was all that was necessary for a felony murder conviction. Rios also objected to a proposed instruction that "[a] person absent from the scene of a crime is criminally accountable for the conduct of another if the absent defendant is an accomplice and the absent defendant has the culpable mental state required for the commission of the offense." The trial court overruled this objection as well, noting that the instruction was a correct statement of the law.

¶ 5 We review jury instructions in their entirety to determine if they accurately reflect the law. State v. Hoskins, 199 Ariz. 127, 145, ¶ 75, 14 P.3d 997, 1015 (2000). "A party is entitled to an instruction on any theory of the case reasonably supported by the evidence." State v. Shumway, 137 Ariz. 585, 588, 672 P.2d 929, 932 (1983). The instructions, however, must not mislead the jury on the governing law. State v. Noriega, 187 Ariz. 282, 284, 928 P.2d 706, 708 (App. 1996). Because Rios' argument requires us to interpret and apply the felony murder and accomplice liability statutes, we apply a de novo standard of review. State v. Cabanas-Salgado, 208 Ariz. 195, 196, ¶ 11, 92 P.3d 421, 422 (App.2003).

¶ 6 Arizona law proscribes only those offenses targeted by the legislature or other legislative body and identified as crimes in the governing statutes and ordinances. Ariz. Rev.Stat. ("A.R.S.") § 13-103(A) (Supp.2006) (abolishing all common law offenses and providing that "[n]o conduct . . . constitutes an offense . . . unless it is an offense . . . under this title or under another statute or ordinance."); see Vo v.Super. Ct., 172 Ariz. 195, 198, 836 P.2d 408, 411 (App.1992) ("Arizona is a `code state' as far as its criminal law is concerned."). Courts may not add elements to those that the legislature has identified in the statute defining the crime. See State v. Miranda, 200 Ariz. 67, 69, ¶ 5, 22 P.3d 506, 508 (2001).

¶ 7 In construing a statute, "the court first considers the statute's language because it is the best and most reliable evidence of the legislative intent." State v. Jenkins, 193 Ariz. 115, 119, ¶ 11, 970 P.2d 947, 951 (App. 1998) (internal quotes and citation omitted). "We will refrain from construing a statute to require something not within the plain intent of the legislature as expressed by the language of the statute." State v. Affordable Bail Bonds, 198 Ariz. 34, 37, ¶ 13, 6 P.3d 339, 342 (App.2000).

¶ 8 We hold the trial court did not err in refusing to instruct the jury that Rios could not be convicted of felony murder unless he was a "participant" in the attempted armed robbery, and in instructing the jury that Rios could be convicted as an accomplice even if he was not present at the scene of a crime. Under A.R.S. § 13-1105(A)(2) (2001),¹ a person commits felony murder if "[a]cting either alone or with one or more other persons the person commits or attempts to commit . . . robbery under § . . . 13-1904 . . . and in the course of and in furtherance of the offense or immediate flight from the offense, the person or another person causes the death of any person." The only intent required for felony murder is the intent required to commit the underlying felony. A.R.S. § 13-1105(B) (2001).

¶ 9 Pursuant to A.R.S. § 13-303(A)(3) (2001), "[a] person is criminally accountable for the conduct of another if . . . [t]he person is an accomplice of such other person in the commission of an offense." The term "accomplice" is defined, in pertinent part, as follows:

"[A]ccomplice" means a person . . . who with the intent to promote or facilitate the commission of an offense:

1. Solicits or commands another person to commit the offense; or

2. Aids, counsels, agrees to aid or attempts to aid another person in planning or committing the offense.

3. Provides means or opportunity to another person to commit the offense.

A.R.S. § 13-301 (2001). To obtain a conviction for felony murder on the theory of accomplice liability, therefore, "[t]he state need only prove that defendant, either as a principal or as an accomplice, committed or attempted to commit robbery and that someone was killed in the course of and in furtherance of the robbery." State v. Murray, 184 Ariz. 9, 32, 906 P.2d 542, 565 (1995) (citing in part A.R.S. § 13-303(A)). The trial court gave an instruction that tracked the language of the felony murder statute and covered all essential elements of felony murder identified by the governing statute. See A.R.S. § 13-1105(A)(2). The trial court also gave an instruction that tracked the accomplice liability statute. See A.R.S. §§ 13-301, 303(A)(3). Finally, the court properly instructed on the elements of attempt and of armed robbery. See A.R.S. §§ 13-1001(A) (attempt), -1902(A) (robbery), and -1904(A)(1)-(2) (armed robbery) (2001). This was all that was required under the express language of the governing statutes. See Affordable Bail Bonds, 198 Ariz. at 37, ¶ 13, 6 P.3d at 342.

¶ 10 The State was not required to also prove that Rios "was present at the scene" of, or a "participant" in, the attempted armed robbery, and the trial court was not required to instruct accordingly, because neither of these are elements of the charged offenses. One does not need to be present at the scene of a crime in order to be convicted as an accomplice: one can solicit another to commit the crime, provide the means to commit an offense, or command others to commit the crime, all from a location remote from the scene of the crime. See, e.g., State v. Dickens, 187 Ariz. 1, 7-8, 27, 926 P.2d 468, 474-75, 494 (1996) (affirming felony murder convictions of defendant who waited across the highway in a vehicle while another person robbed the victims at gunpoint and then killed them); State v. Axley, 132 Ariz. 383, 385, 394, 646 P.2d 268, 270, 279 (1982) (affirming felony murder conviction of defendant on evidence that defendant waited in the getaway car while his codefendant shot and killed attendant at laundromat in course of attempted robbery). Nor do the governing statutes impose an additional undefined requirement of "participation" in the underlying felony for a conviction of felony murder. See A.R.S. §§ 13-301, -303, -1105(A)(2). By statute, one who engages in any of the conduct outlined in the accomplice liability statutes, with the requisite mental state, is considered as liable as if he had personally committed the offense. See A.R.S. §§ 13-301, -303. To instruct the jury as Rios requested would have misled the jury on the elements of accomplice liability for felony murder, and the court correctly refused to so instruct. See Noriega, 187 Ariz. at 284, 928 P.2d at 708.

¶ 11 We reject Rios' argument that our supreme court has ruled that a defendant must be both an accomplice and a "participant" in the underlying felony to be convicted of felony murder, and thus, by implication, must be "present" at the scene of the underlying felony offense. Rios relies primarily on the following language in Evanchyk v. Stewart: "[n]or can the defendant be convicted of felony murder committed by a codefendant unless he was both an accomplice and a participant in the underlying felony." 202 Ariz. at 480, ¶ 14, 47 P.3d at 1118 (citing State v. Phillips, 202 Ariz. 427, 437, ¶ 46, 46 P.3d 1048, 1058 (2002)). In Evanchyk, our...