from the Superior Court in Pima County, No. CR20163938004,
The Honorable Howard Fell, Judge Pro Tempore. AFFIRMED
Brnovich, Arizona Attorney General, Joseph T. Maziarz, Chief
Counsel, By Tanja K. Kelly, Assistant Attorney General,
Tucson, Counsel for Appellee
C. Moss, Tucson, Counsel for Appellant
Judge Eppich authored the opinion of the Court, in which
Judge Eckerstrom and Judge Espinosa concurred.
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
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.
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 Burchs
appeal pursuant to A.R.S. § § 13-4031 and 13-4033(A)(1).
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.
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. SeeAustin 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 ...