State v. O'Brien

Annotate this Case

Download PDF

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) ) ) ) ) ) ) ) ) Appellee, v. MICHAEL CORDELL O BRIEN, Appellant. 1 CA-CR 10-0541 DEPARTMENT B DIVISION ONE FILED: 06/07/2011 RUTH A. WILLINGHAM, CLERK BY: DLL MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Mohave County Cause No. CR 2009-00928 The Honorable Steven F. Conn, Judge AFFIRMED Thomas C. Horne, Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Phoenix Jill L. Evans, Mohave County Appellate Defender Attorney for Appellant Kingman N O R R I S, Judge ¶1 In September 2009, a grand jury indicted Michael Cordell O Brien on one count of first-degree burglary, one count of robbery, one count of kidnapping by domestic violence, one count of endangerment by domestic violence, and two counts of aggravated August 27, assault 2009. by domestic After three violence for days trial of his conduct on after the and superior court instructed on the charged offenses as well as certain lesser-included offenses, such as theft and second- degree burglary, a jury found O Brien guilty of robbery, a class four felony in violation of Arizona Revised Statutes ( A.R.S. ) section 13-1902 (2010),1 and second-degree burglary (a lesserincluded offense of first-degree burglary), a class three felony in violation of A.R.S. § 13-1507 (2010).2 O Brien argues the evidence was insufficient to support his convictions for robbery and second-degree burglary. As we explain, we disagree. DISCUSSION I. Robbery ¶2 O Brien first argues the State failed to present sufficient evidence he acted with intent to deprive the gun owner of his gun to support his robbery conviction. Although the robbery statute, A.R.S. § 13-1902(A), does not on its face require proof of intent to deprive, O Brien reasons such proof was required because (1) the court instructed the jury on theft 1 Although the Arizona Legislature amended certain statutes cited in this decision after the date of O Brien s offenses, the revisions are immaterial. Thus, we cite to the current version of these statutes. 2 The jury also found O Brien guilty of one count of assault by domestic violence and one count of endangerment by domestic violence, but O Brien does not challenge these convictions on appeal. 2 as a lesser-included offense of robbery, (2) theft requires proof of intent to deprive, A.R.S. § 13-1802(A)(1) (2010), and (3) by definition, a greater offense cannot be committed without necessarily committing the lesser offense. State v. Wall, 212 Ariz. 1, 3, ¶ 14, 126 P.3d 148, 150 (2006) (quoting State v. Dugan, 125 Ariz. 194, 195, 608 P.2d 771, 772 (1980)). Thus, he argues we must set aside his robbery conviction because the evidence demonstrated he only intended to disarm the owner, not deprive the owner of his gun. ¶3 the We reject this argument; but even if we were to accept argument and read intent to deprive 3 into the robbery statute, the State presented substantial evidence O Brien acted with the requisite intent. 778 P.2d 1185, 1189 State v. Guerra, 161 Ariz. 289, 293, (1989) (when reviewing challenges to sufficiency of the evidence, reviewing court does not reweigh evidence; rather, views it in light most favorable to sustaining jury s verdict, resolving all reasonable inferences against defendant); State v. Alvarado, 219 Ariz. 540, 542, ¶ 7, 200 P.3d 3 Section 13-1801(A)(4) (2010) states deprive means: to withhold the property interest of another either permanently or for so long a time period that a substantial portion of its economic value or usefulness or enjoyment is lost, to withhold with the intent to restore it only on payment of any reward or other compensation or to transfer or dispose of it so that it is unlikely to be recovered. 3 1037, 1039 (App. 2008) ( Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction. ); State v. Sharma, 216 Ariz. 292, 294, ¶ 7, 165 P.3d 693, 695 (App. 2007) (appellate court review of sufficiency of evidence limited to whether substantial evidence supports verdict). ¶4 of At trial, O Brien admitted he snatched the gun out the hands of the gun owner. The gun owner and three eyewitnesses testified O Brien had then taken the gun into the room where his children were sleeping, had picked up his infant daughter with one hand while holding the gun in his other hand, and had carried his daughter and the gun outside the home. only witness threw the Although who clip followed and O Brien the O Brien gun disputed outside after testified outside testimony, this going it The O Brien the home. nevertheless constituted sufficient evidence he had withheld the owner s gun for a time period such that the owner lost a substantial portion of its . . . usefulness or enjoyment, as the gun owner was unable to use the gun to protect himself and his home. A.R.S. § 13-1801(A)(4) (2010). ¶5 Although sufficiency record of reflects O Brien the the evidence State does not for directly his robbery presented 4 challenge the conviction, the sufficient evidence to demonstrate he committed each element of A.R.S. § 13-1902(A).4 O Brien acknowledged he (1) snatched the gun (2) out of the gun owner s hand (3) against the owner s will after the owner pointed the gun at him. The owner and the only other witness to the confrontation testified O Brien (4) wrestl[ed] with and pushed the owner to grab the gun. Moreover, O Brien testified he shrugged [the owner] off of [his] shoulder when the owner tried to retrieve his gun, suggesting O Brien (5) had used force against the owner as a means of gaining control of the gun. See A.R.S. § 13-1901(1) (2010). Although O Brien disputed much of this evidence, credibility determinations are for the jury. State v. Dickens, 187 Ariz. 1, 21, 926 P.2d 468, 488 (1996). 4 The court s robbery instruction was as follows: In order to determine that the Defendant committed the crime of Robbery, you must find that: 1. The Defendant took property of another person; AND 2. The Defendant took the property from the other s person or immediate presence; AND 3. The Defendant did so against the other person s will; AND 4. In the course of doing so, the Defendant threatened or used force against any person; AND 5. The Defendant threatened or used force with the intent either to coerce the surrender of the property or to prevent resistance to his taking or retaining the property. 5 Thus, for the foregoing reasons, we affirm O Brien s robbery conviction. II. Second-Degree Burglary ¶6 O Brien also challenges the sufficiency of the evidence to support his burglary conviction, arguing the State did not prove he committed the predicate felony of robbery because it did not demonstrate he intended to deprive the owner of his gun. Because sufficient evidence supports the robbery verdict, see supra ¶¶ 4-5, we reject this argument and affirm O Brien s burglary conviction. CONCLUSION ¶7 For the foregoing reasons, we affirm O Brien s robbery and burglary convictions and sentences. __/s/_____________________________ PATRICIA K. NORRIS, Judge CONCURRING: __/s/__________________________________ PETER B. SWANN, Presiding Judge _/s/___________________________________ DANIEL A. BARKER, Judge 6

Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.

This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.