STATE v. JONES, JR

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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. ) ) DONELL LEE JONES, JR., ) ) Appellant. ) ) ) __________________________________) DIVISION ONE FILED: 3/14/2013 RUTH A. WILLINGHAM, CLERK BY: mjt 1 CA-CR 12-0048 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2011-111925-001 The Honorable William L. Brotherton, Jr., Judge AFFIRMED Thomas C. Horne, Arizona Attorney General by Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division and Robert A. Walsh, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Margaret M. Green, Deputy Public Defender Attorneys for Appellant Phoenix P O R T L E Y, Judge ¶1 Donell Lee Jones appeals his conviction and sentence for aggravated robbery. For the reasons that follow, we affirm. FACTS 1 AND PROCEDURAL BACKGROUND ¶2 Jones, and a man seventeen-year-old victim. known as Menace, confronted the Jones threatened to kill the victim unless the victim gave him $600 in four days time. And, Menace wrapped one arm around the victim s neck, took his MP3 player, and said, We ll take this, too. Although Menace threatened to fight the victim, Jones vetoed the threat and told Menace that the MP3 player would do until the victim came up with the $600. ¶3 The victim did not resist the robbery out of fear. After the confrontation, he ran to his nearby group home and told the manager. The manager called the police and Jones was subsequently arrested and indicted for aggravated robbery while aided by an accomplice in violation of Arizona Revised Statutes ( A.R.S. ) section 13-1903 (West 2013) and related statutes. Jones went to trial, and was convicted by a jury as charged. He was subsequently sentenced to 6.5 years in prison. DISCUSSION ¶4 Aggravated robbery, as charged here, requires proof that the defendant, aided by an accomplice who is present, used threats or force with the intent to coerce surrender or prevent 1 We view the facts in the light most favorable to sustaining the verdict, and resolve all reasonable inferences against the defendant. State v. Rienhardt, 190 Ariz. 579, 588-89, 951 P.2d 454, 463-64 (1997). 2 resistance in the course of taking person or immediate presence. property from another s A.R.S. §§ 13-1903, -1902 (West 2013). Jones argues that the crime requires two people: 1) the taker, and 2) indictment the charged accomplice. him as He the argues taker, that and because the the evidence demonstrated that he was the accomplice, and not the taker, the court erred in denying his motion for judgment of acquittal. 2 We review novo and acquittal de the the denial sufficiency of of a motion the for evidence judgment to support of a conviction. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, (2011). 1191 Evidence is sufficient if reasonable persons could accept [it] sufficient to support a guilty verdict beyond a reasonable doubt. State v. Stroud, 209 Ariz. 410, 411-12, ¶ 6, 103 P.3d 912, 913-14 (2005). ¶5 Although the indictment referred to Jones as a principal, it also cited to the statutes governing accomplice liability, liability. and the court instructed the jury on accomplice Arizona law defines an accomplice as one who with 2 The indictment alleged that: Donell Lee Jones, on or about the 1st day of March, 2011, in the course of taking property of another from Richard C[] s person or immediate presence and against his will, used threats or force against Richard C[], with intent to coerce surrender of the property or to prevent resistance to Donell Lee Jones taking or retaining the property, while Donell Lee Jones was aided by one or more accomplices actually present in violation of A.R.S. §§ 13-1903, 13-1901, 13-1902, 13-301, 13-302, 13-303, 13-304, 13-701, 13702, and 13-801. 3 the intent to promote or facilitate the commission of an offense . . . [a]ids, counsels, agrees to aid or attempts to aid another person in planning or committing an offense. 301(2) (West 2013). A person is criminally A.R.S. § 13liable for the conduct of another if [t]he person is an accomplice of such other person in the commission of an offense including any offense that is a natural and probable or reasonably foreseeable consequence of accomplice. ¶6 the offense for which the person was an A.R.S. § 13-303(A)(3) (West 2013). It is well established that there is no distinction between a principal and an accomplice: An accomplice may be either the principal or an accessory to the crime. McNair, 141 Ariz. 475, 480, 687 P.2d 1230, State v. 1235 (1984) (reasoning that each of the codefendants could be considered an accomplice of statute). the other for purposes of the armed robbery In fact, we have stated that [u]nder Arizona law, an accused is a principal regardless of whether he directly commits the illegal act or aids or abets in its commission. McInelly, 1985). 146 Ariz. 161, 162-63, 704 P.2d 291, State v. 292-93 (App. As a result, it is not necessary to set out in the information the facts showing whether the defendant was an accessory before the fact or a principal in the crime charged, since under our statutes all persons, whether they directly commit the act constituting the offense or aid and abet in the 4 commission, are principals. 178, 87 P.2d 112, 114 Browning v. State, 53 Ariz. 174, (1939), superseded by statute, as recognized in State v. Lewis, 107 Ariz. 163, 164, 483 P.2d 1402, 1403 (1971). Similarly, it is a nearly universal rule . . . that one who is indicted as a principal may be found guilty on evidence that he or she aided and abetted the commission of the crime. State v. Burney, 82 P.3d 164, 168-69 (Or. Ct. App. 2003) (summarizing cases); see McInelly, 146 Ariz. at 162-63, 704 P.2d at 292-93 (rejecting defendant s argument that jury could not be allowed to convict him as an accomplice when he had been charged as a principal). ¶7 Jones cites no authority for his argument that his conviction cannot stand on an accomplice theory of liability notwithstanding Arizona law. The plain language of the aggravated robbery statute simply requires the presence of two people, each aiding the other in the robbery. See A.R.S. § 13- 1903; State v. Herrera, 176 Ariz. 21, 27-29, 859 P.2d 131, 13739 (1993) (affirming aggravated robbery conviction of defendant who restrained victim while his accomplice took property); State v. Schurz, 176 Ariz. 46, 52, 859 P.2d 156, 162 (1993) ( If an accomplice is present, the robbery is aggravated robbery. ). It is immaterial whether Jones was the taker or the accomplice because, in either case, he would be considered a principal 5 under Arizona law. See McInelly, 146 Ariz. at 162-63, 704 P.2d at 292-93; Herrera, 176 Ariz. at 27-29, 859 P.2d at 137-39. ¶8 Moreover, the conviction. there was substantial evidence to support The jury heard that Jones threatened the victim and the fact that the MP3 player would do until the victim delivered $600 in four days. Jones intended that Menace The jury was free to infer that rob the victim, and that Jones s threats coupled with his presence assisted Menace in committing the robbery A.R.S. §§ by preventing 13-301(2), any resistance -303(A)(3). Because from the the victim. evidence was sufficient to prove that Jones committed the aggravated robbery, the court did not err by denying Jones s motion for judgment of acquittal. CONCLUSION ¶9 For the foregoing reasons, we affirm Jones s conviction and sentence. /s/ _____________________________ MAURICE PORTLEY, Judge CONCURRING: /s/ ___________________________________ MARGARET H. DOWNIE, Presiding Judge /s/ ___________________________________ PHILIP HALL, Judge 6 7

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