Opinion
No. 2 CA-CR 2018-0239
09-05-2019
The STATE of Arizona, Appellee, v. Gayland Jerod BURCH, Appellant.
Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By Tanja K. Kelly, Assistant Attorney General, Tucson, Counsel for Appellee Vanessa C. Moss, Tucson, Counsel for Appellant
Mark Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief Counsel, By Tanja K. Kelly, Assistant Attorney General, Tucson, Counsel for Appellee
Vanessa C. Moss, Tucson, Counsel for Appellant
Presiding Judge Eppich authored the opinion of the Court, in which Judge Eckerstrom and Judge Espinosa concurred.
EPPICH, Presiding Judge:
¶1 Gayland Burch appeals his convictions for burglary, two counts of kidnapping, two counts of armed robbery, two counts of aggravated robbery, and two counts of aggravated assault with a deadly or dangerous instrument. He contends the trial court erred in denying his request to instruct the jury on facilitation as a lesser-included offense for all charges. While Burch arguably was entitled to a facilitation instruction on the aggravated robbery counts, we conclude any error was harmless. We therefore affirm.
Factual and Procedural Background
¶2 We view the facts in the light most favorable to sustaining the verdicts. See State v. Allen , 235 Ariz. 72, ¶ 2, 326 P.3d 339 (App. 2014). In May 2016, V.W. and T.S. were inside their apartment in Tucson when V.W. saw several men approaching the door. When V.W. opened it, Burch and three other men forced their way in. V.W. was thrown to the floor and kicked in the head several times. After he stabbed one of the men with a knife, they bound his face and hands with duct tape, forced him into a bathtub, and turned on the water. Burch held a gun to V.W.’s face, and one or more of the men punched him. T.S., who was in the bathroom, was pulled out by two of the men, thrown on the living room floor, and bound with duct tape. After a neighbor knocked on the door, the four men fled, taking a gun, purse, wallet, cellphone, and two video game consoles.
¶3 A grand jury indicted Burch and after a four-day trial, a jury convicted him on all counts, as noted above. Burch was sentenced to concurrent terms of imprisonment, the longest of which was seven years. We have jurisdiction over Burch’s appeal pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
Discussion
¶4 At trial, Burch requested a jury instruction on facilitation as a lesser-included offense, which the court denied, concluding that facilitation was not a lesser-included offense of the charged offenses. Burch argues the court abused its discretion in refusing to give this instruction. He contends that because the state presented and argued its case on an accomplice liability theory and obtained an accomplice instruction, he was entitled to a facilitation instruction. He reasons every accomplice necessarily commits facilitation because facilitation and accomplice liability only differ in that facilitation requires a lesser mens rea . He acknowledges Arizona appellate cases have held otherwise, but argues that the existing law on the issue is "inherently contradictory" and should change.
¶5 Our supreme court has decided this issue in State v. Gooch , 139 Ariz. 365, 678 P.2d 946 (1984), and State v. Scott , 177 Ariz. 131, 865 P.2d 792 (1993), and we are bound by its rulings. See Austin v. Austin , 237 Ariz. 201, ¶ 21, 348 P.3d 897 (App. 2015). In both cases, the court upheld trial court rulings denying facilitation instructions; like here, the defendants argued that because they had been prosecuted under an accomplice liability theory, they were entitled to facilitation as a lesser-included offense. Scott , 177 Ariz. at 139-41, 865 P.2d at 800-02 ; Gooch , 139 Ariz. at 366-67, 678 P.2d at 947-48. These cases hold that if it is possible to commit the charged offense without committing facilitation, a defendant is generally not entitled to a facilitation instruction just because the state seeks conviction on an accomplice liability theory. Scott , 177 Ariz. at 139-41, 865 P.2d at 800-02 ; Gooch , 139 Ariz. at 366-67, 678 P.2d at 947-48. ¶6 Here, it is possible to commit the offenses of which Burch was convicted except for aggravated robbery without committing facilitation; facilitation requires criminal involvement of another person, whereas these offenses do not. See A.R.S. §§ 13-1004, 13-1204(A)(2), 13-1304, 13-1508, 13-1904. And while our supreme court has left open the possibility that a defendant would be entitled to a facilitation instruction if the charging document sets out facts that describe facilitation, see Scott , 177 Ariz. at 140-41, 865 P.2d at 801-02, Burch concedes that no such facts were laid out in the charging document here. Therefore, Burch was not entitled to a facilitation instruction on any of the offenses other than aggravated robbery.
¶7 Aggravated robbery, on the other hand, is defined as a robbery aided by one or more accomplices. See A.R.S. § 13-1903(A) ("A person commits aggravated robbery if in the course of committing robbery ... such person is aided by one or more accomplices actually present."). By definition, such an accomplice must commit aggravated robbery himself. See A.R.S. § 13-303(A)(3) (accomplice criminally liable for offense). It follows that any person who commits an aggravated robbery must himself be an accomplice to one or more persons who have also committed that offense. Because a facilitator differs from an accomplice only in that the accomplice acts with intent while the facilitator acts with knowledge, see State v. Garcia , 176 Ariz. 231, 233, 860 P.2d 498, 500 (App. 1993), it is not possible to commit aggravated robbery without committing facilitation of robbery, see A.R.S. § 13-202(C) ("If acting knowingly suffices to establish an element [of an offense], that element is also established if a person acts intentionally."). Facilitation of robbery is therefore a lesser-included offense of aggravated robbery. See Gooch , 139 Ariz. at 366-67, 678 P.2d at 947-48 (offense is lesser-included offense if it is not possible to commit the major charged offense without committing the lesser offense).
Compare A.R.S. § 13-301 (accomplice is "a person, ... who with the intent to promote or facilitate the commission of an offense[,] ... [p]rovides means or opportunity to another person to commit the offense") with A.R.S. § 13-1004(A) ("A person commits facilitation if, acting with knowledge that another person is committing or intends to commit an offense, the person knowingly provides the other person with means or opportunity for the commission of the offense.").
¶8 A defendant is not necessarily entitled to a lesser-included offense instruction, however. The defendant is so entitled only "[i]f the facts of the case as presented at trial are such that a jury could reasonably find that only the elements of a lesser offense have been proved." State v. Hulsey , 243 Ariz. 367, ¶ 55, 408 P.3d 408 (2018). Put differently, a defendant is entitled to a lesser-included instruction if "the jury could rationally fail to find the distinguishing element of the greater offense." State v. Detrich , 178 Ariz. 380, 383, 873 P.2d 1302, 1305 (1994) (quoting State v. Noriega , 142 Ariz. 474, 481, 690 P.2d 775, 782 (1990) ).
¶9 Here, a juror conceivably could have rationally found that Burch lacked intent to commit aggravated robbery. The victims testified that while Burch had pointed a gun at them during the incident, he was taking instruction from others who were in charge. T.S. testified that Burch had been a "tag along," stating "[i]t just kind of seemed like [Burch] was just playing the role that he was told to play." It was others, not Burch, who demanded money; T.S. testified she did not recall Burch saying anything at all. There was no evidence presented about Burch’s particular role in taking items from the apartment. A rational juror arguably could conclude that Burch engaged in the crime to please others involved or because he feared them, rather than with specific intent to take property from the victims—an element of robbery, which the state must prove to prove an aggravated robbery. See A.R.S. § 13-1902 (robbery requires "intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property"); § 13-1903(A) (aggravated robbery requires robbery). Therefore, Burch arguably was entitled to a facilitation instruction as a lesser-included offense of aggravated robbery.
¶10 Generally, when a defendant requests and does not receive a lesser-included offense instruction to which he is entitled and then is convicted of the principal offense, we vacate the conviction. See State v. Kamai , 184 Ariz. 620, 621, 911 P.2d 626, 627 (App. 1995) (vacating conviction and remanding for new trial where defendant was entitled to lesser-included instruction). However, where "we can say, beyond a reasonable doubt, that the error did not contribute to or affect the verdict," we conclude that error is harmless and will sustain a conviction. State v. Bible , 175 Ariz. 549, 588, 858 P.2d 1152, 1191 (1993).
¶11 The unique circumstances here present such a situation. For each of the counts of aggravated robbery, Burch was convicted of corresponding counts of armed robbery—counts on which Burch was not entitled to a facilitation instruction, as explained above. To convict Burch on the armed robbery counts, the jury had to find beyond a reasonable doubt all the elements of robbery, including intent to rob each victim. See §§ 13-1902(A), 13-1904(A) (armed robbery requires robbery). So even if a juror theoretically could have rationally found that Burch lacked intent to rob the victims, all the jurors here actually found, on counts untainted by the error, that Burch had that intent. We therefore conclude beyond a reasonable doubt that any error by the trial court in failing to provide a facilitation instruction for the aggravated robbery counts did not affect the verdicts on those counts.
While "[w]ell-settled Arizona law permits inconsistent verdicts," Gusler v. Wilkinson ex rel. Cty. of Maricopa , 199 Ariz. 391, ¶ 25, 18 P.3d 702 (2001), we need not countenance the possibility that a jury would find intent to rob the victims for the armed robbery counts, but fail to find that exact same intent for the aggravated robbery counts. Cf. State v. Hansen , 237 Ariz. 61, ¶ 23, 345 P.3d 116 (App. 2015) (ruling "ambiguous verdict[s] finding the defendant guilty and not guilty of the same offense" impermissible).
Disposition
¶12 For the foregoing reasons, we affirm Burch’s convictions and sentences.