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State v. Dutra

Court of Appeals of Arizona, First Division

July 31, 2018


          Appeal from the Superior Court in Maricopa County No. CR2016-005832-001 The Honorable Christine E. Mulleneaux, Judge Pro Tempore

          Arizona Attorney General's Office, Phoenix By Michelle Hogan Counsel for Appellee

          Janelle A. Mc Eachern, Attorney at Law, Chandler By Janelle A. Mc Eachern Counsel for Appellant

          Judge Diane M. Johnsen delivered the opinion of the Court, in which Presiding Judge Lawrence F. Winthrop and Judge Maria Elena Cruz joined.


          JOHNSEN, JUDGE

         ¶1 We address in this case a kidnapping conviction based on a restraint of no more than 30 seconds and compelled movement of a mere five steps. Based on the broad language of the statute and case authorities construing it, we affirm.


         ¶2 Matthew Aaron Dutra entered a sandwich shop and walked to the end of the counter, where he stood face-to-face with a 16-year-old employee stationed across the counter at the cash register. Brandishing a stun gun, he activated its electric arc and demanded that the employee give him "the money." In response, the employee took three steps back from the counter, but stopped short of a doorway that led into a closed employee-only area directly behind her. Then, in response to Dutra's command and use of the stun gun, she took two steps forward and reached for the cash register. With the register open, Dutra grabbed for some of the bills in the drawer, and the employee handed him the rest. A security video showed that Dutra left the store within 30 seconds of confronting the employee.

         ¶3 A man sitting in his car in front of the restaurant saw Dutra as he fled on foot. The man lost sight of Dutra as he ran toward the street, but then he heard screeching tires. Police received separate reports of an armed robbery and a hit-and-run accident. Officers found Dutra injured, lying in the street not far from the restaurant. He was wearing clothing resembling that worn by the figure in the security video, and police found a stun gun nearby him on the street. At the hospital, authorities discovered cash in Dutra's pocket in the same denominations taken from the restaurant.

         ¶4 A grand jury indicted Dutra on charges of armed robbery, a Class 2 felony; aggravated assault, a Class 3 felony; and kidnapping, a Class 2 felony. At the close of the State's case-in-chief, Dutra moved for a directed verdict on the kidnapping charge, arguing the State had presented no evidence he restrained the victim as required by the kidnapping statute. The State countered that Dutra used a threat of force and commands to restrain the victim by confining her behind the counter and then compelling her to move forward and open the cash drawer. The court denied the motion, stating:

I do find that [the victim] was - that she in this particular situation that she was interfered with substantially. Her person - her personal liberty. She wasn't free to move.

         ¶5 The jury convicted Dutra of each of the charged offenses. Because armed robbery, kidnapping and aggravated assault involving the threatening exhibition of a dangerous instrument are violent or aggravated felonies within the meaning of Arizona Revised Statutes ("A.R.S.") section 13-706(F) (2018), and because Dutra had two prior convictions for felonies within the same category and committed on different occasions within the prior 15 years, the court imposed three concurrent mandatory sentences of life in prison with no possibility of release for 35 years. See A.R.S. § 13-706(B), (F)(2) (enumerating aggravated offenses).[1]

         ¶6 Dutra timely appealed, and his counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969), after searching the record on appeal and finding no arguable, non-frivolous question of law. See Smith v. Robbins, 528 U.S. 259 (2000); Anders, 386 U.S. at 744; State v. Clark, 196 Ariz. 530 (App. 1999). Dutra was given the opportunity to file a supplemental brief but did not do so. Counsel then asked this court to search the record for fundamental error.

         ¶7 After reviewing the entire record, we requested supplemental briefing under Penson v. Ohio,488 U.S. 75 (1988), about whether the evidence supported Dutra's kidnapping conviction. We have jurisdiction under Article 6, Section 9, of the Arizona Constitution, and A.R.S. ...

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