Opinion
No. 1 CA-CR 14-0067
06-04-2015
STATE OF ARIZONA, Appellee, v. TONY ANTWAJUE TUCKER, Appellant.
COUNSEL Arizona Attorney General's Office, Phoenix By Craig W. Soland Counsel for Appellee Maricopa County Office of the Legal Advocate, Phoenix By Colin F. Stearns Counsel for Appellant
NOTICE: NOT FOR OFFICIAL PUBLICATION. UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE. Appeal from the Superior Court in Maricopa County
No. CR2012-103511-001
The Honorable Pamela H. Svoboda, Judge
AFFIRMED AS MODIFIED
COUNSEL Arizona Attorney General's Office, Phoenix
By Craig W. Soland
Counsel for Appellee
Maricopa County Office of the Legal Advocate, Phoenix
By Colin F. Stearns
Counsel for Appellant
MEMORANDUM DECISION
Judge Peter B. Swann delivered the decision of the court, in which Presiding Judge Kent E. Cattani and Judge Lawrence F. Winthrop joined. SWANN, Judge:
¶1 Tony Antwajue Tucker ("Defendant") was convicted of attempted armed robbery under an indictment and jury instructions that identified a restaurant as the victim of the offense. We hold that though robbery-based offenses must be committed against human beings, not business entities, the defect in the indictment and instructions did not constitute fundamental error. We therefore affirm Defendant's convictions. We modify Defendant's sentence to correct a miscalculation of presentence incarceration.
FACTS AND PROCEDURAL HISTORY
¶2 Defendant was indicted for numerous offenses, including several offenses related to events that occurred at a McDonald's restaurant on November 7, 2011: namely, two counts of attempted armed robbery, three counts of aggravated assault, and one count of unlawful discharge of a firearm.
¶3 At trial, the state presented evidence that throughout Fall 2011, Defendant committed a string of armed robberies at fast-food restaurants. With respect to the events of November 7, 2011, the state presented evidence that Defendant entered the McDonald's restaurant and, in view of two employees, brandished a handgun, grabbed a customer by the neck, and fired the gun into the air. When the employees fled and the customer managed to escape, Defendant ran from the restaurant and drove away.
¶4 At the close of evidence, Defendant moved for a judgment of acquittal, arguing for the first time that he could not be convicted of Count 26 because it alleged attempted armed robbery against the McDonald's restaurant. Defendant argued that attempted armed robbery "requires an attempted taking against a person's will[, and t]here's been no evidence introduced that McDonald's is a person or has a will against which force can be asserted." The court rejected this argument and denied Defendant's motion, holding that the restaurant met the statutory definition of "person" because it was the restaurant's property that Defendant attempted to take. The state confirmed that it did not wish to amend the indictment to name a human victim. Without objection by Defendant, the court then instructed the jury that McDonald's was the alleged victim for Count 26 (and, consistent with the indictment, that the restaurant's customer was the alleged victim for the other count of attempted armed robbery).
¶5 The jury convicted Defendant on all counts, and he was sentenced to a lengthy prison term. He timely appeals.
DISCUSSION
¶6 Defendant contends that his conviction on Count 26 must be vacated "because attempted armed robbery of a business entity is not a cognizable offense under Arizona law." Though Defendant has styled this argument as a challenge to the sufficiency of the evidence, it is really a challenge to the sufficiency of the indictment. Under Ariz. R. Crim. P. 13.5(e) and 16.1(b)-(c), Defendant was required to assert this challenge before trial. He did not do so, and therefore waived any defects in the indictment absent fundamental error. State v. Hargrave, 225 Ariz. 1, 11, ¶ 28 (2010); State v. Sowards, 147 Ariz. 185, 189 (App. 1984). And because he did not object to the jury instructions, he waived any defects in the instructions absent fundamental error. Ariz. R. Crim. P. 21.3(c); State v. Dippre, 121 Ariz. 596, 598 (1979). Fundamental error is error that goes to the foundation of the case and deprives the defendant of a fair trial. State v. Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). To prevail on appeal, a defendant must establish both that fundamental error exists and that it caused him prejudice. Id. at ¶ 20.
¶7 We hold that the indictment was technically defective with respect to Count 26. The indictment alleged that Defendant, "in the course of attempting to take property of another from MCDONALD'S person or immediate presence and against its will, used threats or force against MCDONALDS, with the intent to coerce surrender of the property or to prevent resistance to [Defendant]'s taking or retaining the property while [Defendant] or an accomplice was armed with a deadly weapon or simulated deadly weapon[.]" The indictment should have alleged an attempted taking from a McDonald's employee by use or threat of force against the employee or another human being. Robbery is a crime against a person -- not property. State v. Riley, 196 Ariz. 40, 46, ¶ 18 (App. 1999). Under A.R.S. § 13-1902(A), "[a] person commits robbery if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property." In some contexts, a business entity may qualify as a "person." A.R.S. § 13-105(30). But a business entity does not have a "will" that may be overcome by the use or threat of force; nor may it be the subject of force or threat of force. Accordingly, § 13-1902(A) requires a taking of property from a human being through use of force or threat of force against a human being -- though the property may be owned by a business entity. See State v. Soto-Fong, 187 Ariz. 186, 200 (1996) ("'A.R.S. § 13-1902 requires only that force be used "against any person," not necessarily only against the person dispossessed of the property.' Force was used to prevent all three of the [human] victims in this case from resisting the taking of property from the El Grande Market." (citation omitted)); see also State v. Prasertphong, 206 Ariz. 70, 91, ¶ 87 (2003) ("[R]obbery must be a taking by force or threat of force against a person, not a business."), vacated and remanded on other grounds, 541 U.S. 1039 (2004).
Because we so hold, we need not address Defendant's alternative argument that the jury could not convict him in the absence of evidence that the restaurant was owned by McDonald's Corporation.
In State v. Strong, this court held that only one robbery of a bank occurred even though more than one employee was threatened. 185 Ariz. 248, 252 (App. 1995). In Riley, however, a different panel of this court declined to follow Strong. See 196 Ariz. at 46, ¶ 18. See also id. at ¶ 19 ("In State v. Soto-Fong, 187 Ariz. 186, 928 P.2d 610 (1996), our supreme court found that the defendant's use of force to prevent three store employees from resisting his taking store property supported separate counts of armed robbery, attempted armed robbery, aggravated robbery, and attempted aggravated robbery, despite the alleged lack of evidence showing taking or attempted taking of property from the person or immediate presence of two of them.").
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¶8 The error in the indictment was not, however, fundamental error. A charging document is valid if it "apprises the defendant of the essential elements of the crime charged, is sufficiently definite to advise him of what he must be prepared to meet, and protects him from further prosecution for the same offense." State v. Van Vliet, 108 Ariz. 162, 163 (1972). The standard is whether "a person of common understanding [would] know what is intended. Simplicity rather than technicality is the goal to be achieved." Id. An error that defines a robbery-based offense in terms of a business entity instead of its employees does not change the nature of the offense. Id. at 164 (holding that amendment of information to allege that store manager rather than store was victim of armed robbery did not change nature of offense). Such error is harmless. Prasertphong, 206 Ariz. at 91-92, ¶¶ 87-89 (holding that indictment's allegation that robbery was of "each victim 'and/or Pizza Hut'" was harmless error).
¶9 Under Ariz. R. Crim. P. 13.5(b), the error in the indictment should have been deemed corrected. But because the state specifically declined amendment, the error in the indictment was carried over into the jury instructions. The jury was properly instructed regarding the elements of attempted armed robbery, but was informed that "McDonald's" was the "alleged victim" of this offense under Count 26. The error in the instructions was not fundamental. The jury found Defendant guilty of aggravated assault against both of the McDonald's employees, attempted armed robbery against the customer, and unlawful discharge of a firearm inside the restaurant. All of the verdicts were supported by sufficient evidence. On this record, the instructions' failure to specify that one of the McDonald's employees was the alleged victim of Count 26 was inconsequential. Defendant is not entitled to relief from his convictions.
¶10 Defendant next contends that his sentence should be modified because his presentence incarceration credit was incorrectly calculated. The state confesses error on this point, and we agree. Defendant was arrested on January 13, 2012, and booked the next day. He was sentenced on January 10, 2014. Under A.R.S. § 13-712(B) and State v. Cereceres, 166 Ariz. 14, 16 (App. 1990), Defendant was entitled to receive credit for 727 days of presentence incarceration, but the court credited him with only 641 days. This was fundamental error. See State v. Ritch, 160 Ariz. 495, 498 (App. 1989). We therefore modify Defendant's sentence to reflect 727 days of presentence incarceration credit. See A.R.S. § 13-4037; State v. Stevens, 173 Ariz. 494, 496 (App. 1992). The credit applies to the concurrent sentences for Counts 1 to 4 only, not to the consecutive sentences imposed for the remaining counts. See State v. Cuen, 158 Ariz. 86, 88 (App. 1988).
CONCLUSION
¶11 For the reasons set forth above, we affirm Defendant's convictions and affirm his sentence as modified.