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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.

Page 369

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

         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:

Page 370

         [¶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. 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 ...


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