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State v. Burch

Court of Appeals of Arizona, Second Division

September 5, 2019

The State of Arizona, Appellee,
v.
Gayland Jerod Burch, Appellant.

          Appeal from the Superior Court in Pima County No. CR20163938004 The Honorable Howard Fell, Judge Pro Tempore.

          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.

          OPINION

          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 (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 (1984), and State v. Scott, 177 Ariz. 131 (1993), and we are bound by its rulings. See Austin v. Austin, 237 Ariz. 201, ¶ 21 (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; Gooch, 139 Ariz. at 366-67. 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; Gooch, 139 Ariz. at 366-67.

         ¶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, 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 (App. 1993), [1] it is not possible to commit aggravated robbery without committing facilitation of robbery, see A.R.S. ยง 13-202(C) ("If acting knowingly suffices to establish an element [of an offense], that element is also established if a person acts ...


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