State v. Snider

• Decision Date: 16 October 2013
• Docket Number: No. 2 CA–CR 2012–0032.,2 CA–CR 2012–0032.
• Citation: 671 Ariz. Adv. Rep. 4,233 Ariz. 243,311 P.3d 656
• Parties: The STATE of Arizona, Appellee, v. Daniel Andrew SNIDER, Appellant.
• Court: Arizona Court of Appeals

233 Ariz. 243

311 P.3d 656

671 Ariz. Adv. Rep. 4

The STATE of Arizona, Appellee,

v.Daniel Andrew SNIDER, Appellant.

No. 2 CA–CR 2012–0032.

Court of Appeals of Arizona, Division 2, Department A.

Oct. 16, 2013.

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz and Jonathan Bass, Tucson, Attorneys for Appellee.

Lori J. Lefferts, Pima County Public Defender By Rebecca A. McLean, Tucson, Attorneys for Appellant.

OPINION

VÁSQUEZ, Presiding Judge.

¶ 1 After a jury trial, appellant Daniel Snider was convicted of nine counts of first-degree burglary, ten counts of armed robbery, and one count each of aggravated assault and attempted armed robbery. The trial court sentenced ¹ him to a 7.5–year prison term on count two, burglary; fifteen years on count four, burglary; twenty years on count eleven, attempted armed robbery; and, life in prison with the possibility of release after twenty-five years on the eighteen remaining counts pursuant to A.R.S. § 13–706(A),² with all sentences to be served concurrently. On appeal, Snider contends there was insufficient evidence to support two of his armed robbery convictions. He also argues the court erred by imposing life sentences under § 13–706(A). For the reasons that follow, we affirm the convictions but remand for resentencing.

Factual Background and Procedural History

¶ 2 We view the evidence in the light most favorable to sustaining the convictions and resolve all reasonable inferences against Snider. See State v. Haight–Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App.2008). This case arises from a series of nine bank robberies that occurred in Pima County from October 18 to December 23, 2010. All of the robberies were committed in a similar manner. Snider walked into the bank wearing a dark hooded sweatshirt with a scarf or handkerchief covering his face. He displayed a handgun, handed the teller a grocery bag, and demanded all of the money in the cash drawer. Snider was apprehended shortly after the December 23 robbery and admitted committing the robberies during a police interview.³

¶ 3 Snider was charged in a single indictment with twenty-four counts of armed robbery, attempted armed robbery, aggravated assault, and first-degree burglary, all dangerous offenses pursuant to A.R.S. § 13–704. The state also alleged pursuant to § 13–706(A) that Snider was “subject to life imprisonment if convicted of three armed robberies and/or aggravated assaults and/or burglaries i[n] the first degree.” The jury found Snider guilty of twenty-one of the counts, and the trial court sentenced him 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), (4).

Discussion

Sufficiency of the Evidence

¶ 4 Snider argues there was insufficient evidence to support his convictions for the armed robberies alleged in count twenty and count twenty-two because neither victim “testified that the robber used or threatened” her with a weapon.⁴ The sufficiency of the evidence is a question of law we review de novo. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). We will reverse only if no substantial evidence supports the convictions. State v. Fimbres, 222 Ariz. 293, ¶ 4, 213 P.3d 1020, 1024 (App.2009). “Substantial evidence is proof that ‘reasonable persons could accept as adequate ... to support a conclusion of defendant's guilt beyond a reasonable doubt.’ ” State v. Bearup, 221 Ariz. 163, ¶ 16, 211 P.3d 684, 688 (2009), quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980) (alteration in Bearup ). Evidence sufficient to support a conviction can be direct or circumstantial. State v. Pena, 209 Ariz. 503, ¶ 7, 104 P.3d 873, 875 (App.2005).

¶ 5 A defendant commits armed robbery “if in the course of taking any property of another from his person or immediate presence and against his will, [the defendant] threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to [the defendant] taking or retaining property,” A.R.S. § 13–1902(A), and the defendant is “armed with a deadly weapon or a simulated deadly weapon,” A.R.S. § 13–1904(A)(1).

¶ 6 The evidence for the armed robbery alleged in count twenty established that on December 17, A.L., an employee at the Canyon Community Bank saw a man dressed in a black hooded sweatshirt with a handkerchief over his face enter the bank carrying a handgun. He placed the gun in his waistband, approached a teller, the victim in count twenty, K.M., and demanded money. K.M. testified that Snider had stated “he wouldn't hurt [her] as long as [she] did what he told [her] to do.”

¶ 7 As to count twenty-two, the evidence similarly established that on December 23, Snider entered the Chase Bank shortly before closing, wearing a black hooded sweatshirt, sunglasses, and a scarf covering the lower part of his face. C.A. testified that Snider had first approached her teller window and said he wanted all of the money from her cash drawer.⁵ As C.A. was preparing to get money from an automated cash dispenser, K.S., the victim in count twenty-two, “walk[ed] around the corner from the back.” Both tellers then dispensed the money and handed it to Snider. When asked if Snider had a weapon, C.A. stated: “Yes.... [H]e raised his hoodie ... and took the gun out and showed it to us.” K.S. testified she had not seen Snider lift up his shirt because she “was really nervous” and was focused on “grabbing the money[and] putting it in the bag.” A Marana police officer confronted Snider when he walked out of the bank holding a gun. The officer yelled “drop it” as Snider raised the gun, and the officer “fired several rounds at him.” Snider “fled [on foot] into the desert area to the north of the bank” and was apprehended a short time later as he was lying injured under a tree. During a subsequent interview with a police detective, Snider admitted committing the robberies, including the ones alleged in counts twenty and twenty-two.

¶ 8 On appeal, Snider contends his convictions on counts twenty and twenty-two must be reversed because neither victim “testified that the robber used or threatened them with a deadly weapon.” However, § 13–1904(A)(1) does not require the use or threatened use of the weapon, only that a defendant is “armed with a deadly weapon” during the commission of the crime. See State v. Garza Rodriguez, 164 Ariz. 107, 111, 791 P.2d 633, 637 (1990) (“The weapon ... need not be displayed by the accused nor seen by the victim to satisfy ... the armed robbery statute.”). There was ample evidence, as noted above, that Snider possessed a handgun during the armed robberies alleged in counts twenty and twenty-two.

¶ 9 And, to the extent Snider argues the use or threatened use of force must be directed at the victim, we reject this argument as well. ⁶ A threat “against any person” during the commission of robbery is sufficient to support a conviction. A.R.S. § 13–1902(A); see also State v. McGuire, 131 Ariz. 93, 96, 638 P.2d 1339, 1342 (1981). “ ‘Threat’ means a verbal or physical menace of imminent physical injury to a person,” A.R.S. § 13–1901(4), and “ ‘[f]orce’ means any physical act directed against a person as a means of gaining control of property,” A.R.S. § 13–1901(1).

¶ 10 The state presented substantial evidence from which the jury could infer that Snider had used or threatened to use force during the commission of the offenses alleged in counts twenty and twenty-two. As noted above, during both armed robberies, he displayed a handgun, wore a hooded sweatshirt with a scarf or handkerchief over his face, and demanded money from the victims. K.M. testified she had been “[t]errified” when Snider walked into the bank and Snider told her that he would not hurt her if she cooperated. K.S. similarly testified that she had been “scared” during that encounter. We therefore conclude the state presented sufficient evidence to support the armed robbery convictions in counts twenty and twenty-two. See State v. Stevens, 184 Ariz. 411, 413, 909 P.2d 478, 480 (App.1995) (even absent overt threat, jury reasonably could conclude defendant's fear-invoking behavior was directed at coercing surrender of property); State v. Yarbrough, 131 Ariz. 70, 73, 638 P.2d 737, 740 (App.1981) (threat established where defendant entered store wearing stocking over his head, “went behind the counter, squatted down, and with a bag in his right hand demanded that the victim put all the money in the bag”).

¶ 11 Snider also argues for the first time in his reply brief that the allegations of dangerousness for counts twenty and twenty-two must be dismissed “[b]ecause the victim[s] did not see a gun, and a gun was not discharged, used, or threateningly exhibited.” Snider has waived this argument by not raising it in his opening brief. See State v. Larson, 222 Ariz. 341, ¶ 23, 214 P.3d 429, 434 (App.2009). And, in any event, it is without merit. A dangerous offense involves “the discharge, use or threatening exhibition of a deadly weapon.” A.R.S. § 13–105(13). Although the victims here did not see a firearm, other witnesses testified that Snider had displayed a handgun before demanding money during the commission of these robberies. See State v. Bice, 127 Ariz. 312, 315, 620 P.2d 227, 230 (App.1980) (affirming jury verdict finding assaults of dangerous nature even though gun not on defendant's person, but on dashboard in holster, and victim did not actually see weapon). This was sufficient evidence of Snider's “use or threatening exhibition of a deadly weapon” while committing the offenses. A.R.S. § 13–105(13). A threat can “be expressed by words, gestures, or actions,” State v. Flynt, 199 Ariz. 92, ¶ 6, 13 P.3d 1209, 1211 (App.2000), and “[n]o precise words are necessary,” Bush v. State, 19 Ariz. 195, 200, 168 P. 508, 510 (1917).

Imposition of Life Sentences

¶ 12 Snider next argues the life terms of imprisonment, imposed by the trial court on counts...