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 ...