Not for Publication – Rule 111(c), Rules of the Arizona Supreme Court
Appeal from the Superior Court in Mohave County No. S8015CR201101029 The Honorable Derek C. Carlisle, Judge, Pro Tempore.
Arizona Attorney General's Office, Phoenix By Eliza C. Ybarra Counsel for Appellee.
Mohave County Legal Advocate, Kingman By Jill L. Evans Counsel for Appellant.
Presiding Judge Diane M. Johnsen delivered the decision of the Court, in which Judge Kent E. Cattani and Judge John C. Gemmill joined.
¶1 Russell Eugene Shields appeals his conviction and sentence for second degree murder. Shields argues the evidence was insufficient to support his conviction. He further argues the superior court erred when it did not properly respond to a question from the jury, when it refused to order the production of a recording of a witness's "free talk, " when it violated Shields's right to confrontation and when it failed to find sentence disparity as a mitigating circumstance for sentencing purposes. For the reasons that follow, we affirm Shields's convictions and the resulting sentences.
FACTS AND PROCEDURAL BACKGROUND
¶2 The State charged Shields with first degree murder, Class 1 felony; abandonment of a body, a Class 5 felony; tampering with physical evidence, a Class 6 felony; hindering prosecution, a Class 3 felony; and misconduct involving weapons, a Class 4 felony. The State alleged alternate theories of premeditated and felony murder and further alleged both principal and accomplice liability. The jury acquitted Shields of first degree murder but found him guilty of the lesser-included offense of second degree murder. It also found him guilty of the remaining counts as charged. The superior court sentenced Shields to an aggravated term of 24 years' imprisonment for second degree murder and concurrent, shorter sentences of imprisonment for the remaining counts. Shields filed a timely notice of appeal.
¶3 Shields appeals his conviction and sentence for second degree murder, a Class 1 felony. We have jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and Arizona Revised Statutes ("A.R.S.") sections 12-120.21(A)(1) (2015), 13-4031 (2015) and -4033(A)(1), (4) (2015).
A. Sufficiency of the Evidence.
¶4 Shields argues the evidence was insufficient to support his conviction for second degree murder whether as a principal or an accomplice. Shields contends the evidence was insufficient because his former codefendant, Langan, provided the only direct evidence against Shields and Langan was not credible.
¶5 As Shields was charged and as the jury was instructed, a person commits second degree murder if the person, without premeditation: (1) intentionally causes the death of another person; or (2) causes the death of another person knowing his or her conduct will cause death or serious physical injury; or (3) causes the death of another person by recklessly engaging in conduct that creates a grave risk of death and the person does so under circumstances that manifest extreme indifference to human life. See A.R.S. § 13-1104(A)(1)-(3) (2015). Further, a person is criminally liable for the conduct of another if the person is an "accomplice" in the commission of the offense, including "any offense that is a natural and probable or reasonably foreseeable consequence of the offense for which the person was an accomplice." A.R.S. § 13-303(A)(3) (2015). An "accomplice" is a person "who with the intent to promote or facilitate the commission of an offense: . . . [s]olicits or commands another person to commit the offense; or . . . [a]ids, counsels, agrees to aid or attempts to aid another person in planning or committing an offense .... [or] [p]rovides means or opportunity to another person to commit the offense." A.R.S. § 13-301(1)-(3) (2015).
¶6 "Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction." State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (quoting State v. Scott, 113 Ariz. 423, 424-25 (1976)). "To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Arredondo, 155 Ariz. 314, 316 (1987).
¶7 "We construe the evidence in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant." State v. Greene, 192 Ariz. 431, 436, ¶ 12 (1998). In our review of the record, we resolve any conflict in the evidence in favor of sustaining the verdict. State v. Guerra, 161 Ariz. 289, 293 (1989). We do not weigh the evidence, however; that is the function of the jury. See id.
¶8 According to the evidence, Shields was a drug dealer who owed his suppliers $8, 000 and was unable to pay his mortgage and risked losing his home. A ledger in Shields's home contained the victim's name alongside a notation of $800. The night of the murder, Shields, Langan, Ellis and others went bowling. Shields had to borrow money from Ellis so he and his girlfriend could bowl. The group later ...