State of Arizona v. Cynthia D. Johnson , 215 Ariz. 28 ( 2007 )


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  •                                                                           FILED BY CLERK
    IN THE COURT OF APPEALS                       APR 30 2007
    STATE OF ARIZONA
    COURT OF APPEALS
    DIVISION TWO                               DIVISION TWO
    THE STATE OF ARIZONA,                          )
    )           2 CA-CR 2005-0219
    Appellee,    )           DEPARTMENT B
    )
    v.                      )           OPINION
    )
    CYNTHIA D. JOHNSON,                            )
    )
    Appellant.   )
    )
    APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY
    Cause No. CR200400309
    Honorable Gilberto V. Figueroa, Judge
    AFFIRMED IN PART AND REVERSED IN PART
    Terry Goddard, Arizona Attorney General
    By Randall M. Howe and Joseph T. Maziarz                                          Phoenix
    Attorneys for Appellee
    Harriette P. Levitt                                                                 Tucson
    Attorney for Appellant
    E S P I N O S A, Judge.
    ¶1            Twelve jurors found appellant Cynthia Johnson guilty of first-degree felony
    murder and conspiracy to commit kidnapping. At the state’s request, the trial court dismissed
    a third count charging Johnson with first-degree burglary. After denying Johnson’s motion
    for new trial, filed pursuant to Rule 24.1, Ariz. R. Crim. P., 17 A.R.S., the trial court
    sentenced her to life in prison for the murder conviction and to a concurrent, presumptive,
    10.5-year term for the conspiracy conviction. In the single issue raised on appeal, Johnson
    contends there was insufficient evidence to sustain the jury’s verdict on the felony murder
    charge. Because we find the evidence does not show Johnson was an accomplice to the
    predicate offense charged, we must reverse her conviction for felony murder.
    ¶2            A conviction must be based on substantial evidence, Rule 20(a), Ariz. R.
    Crim. P., 17 A.R.S., which is proof that reasonable persons could find “sufficient to support
    a conclusion of a defendant’s guilt beyond a reasonable doubt.” State v. Spears, 
    184 Ariz. 277
    , 290, 
    908 P.2d 1062
    , 1075 (1996). We will not reverse a conviction for insufficient
    evidence unless “there is a complete absence of probative facts to support [the jury’s]
    conclusion.” State v. Mauro, 
    159 Ariz. 186
    , 206, 
    766 P.2d 59
    , 79 (1988); see also State v.
    Carlisle, 
    198 Ariz. 203
    , ¶ 11, 
    8 P.3d 391
    , 394 (App. 2000). Stated differently, to warrant
    reversal, “it must clearly appear that upon no hypothesis whatever is there sufficient evidence
    to support the conclusion reached by the jury.” State v. Arredondo, 
    155 Ariz. 314
    , 316, 
    746 P.2d 484
    , 486 (1987). “In considering the sufficiency of the evidence, we evaluate the entire
    record, including Appellant’s testimony.” State v. Alvarado, 
    178 Ariz. 539
    , 541, 
    875 P.2d 198
    , 200 (App. 1994).
    ¶3            To prove first-degree felony murder as defined in A.R.S. § 13-1105(A)(2), the
    state must show that the defendant, acting either alone or with others, committed or
    attempted to commit any of the specific felony offenses listed in § 13-1105(A)(2) and, “‘in
    the course of and in furtherance of’ that felony, the defendant or another person caused the
    2
    death of any person.” State v. Phillips, 
    202 Ariz. 427
    , ¶ 39, 
    46 P.3d 1048
    , 1057 (2002),
    quoting § 13-1105(A)(2) (emphasis supplied in Phillips). Among the felony offenses listed
    is burglary, and the indictment against Johnson alleged first-degree burglary as the specific
    predicate offense. The jury was instructed that, to prove first-degree murder, the state had
    to “prove that the defendant, whether as a principal or an accomplice, committed or
    attempted to commit First Degree burglary and that someone was killed in the course of and
    in furtherance of that offense.” First-degree burglary is defined in A.R.S. § 13-1508(A) as
    follows: “A person commits burglary in the first degree if such person or an accomplice
    violates the provisions of either § 13-1506 [defining third-degree burglary] 1 or 13-1507
    [defining second-degree burglary]2 and knowingly possesses explosives, a deadly weapon
    or a dangerous instrument in the course of committing any theft or any felony.”
    Facts
    ¶4            Viewed in the light most favorable to sustaining the verdict, see 
    Arredondo, 155 Ariz. at 316
    , 746 P.2d at 486, the evidence presented at trial established that, on the night
    of September 10, 2003, the murder victim, Tom Snyder, and his wife, Marilyn, were asleep
    in their bedroom when they were awakened by two intruders standing near their bed. One
    of the intruders instructed the couple to “[t]urn over and put [their] faces in the pillow.” Tom
    1
    Section 13-1506(A)(1), A.R.S., provides that a person commits third-degree burglary
    by “[e]ntering or remaining unlawfully in or on a nonresidential structure or in a fenced
    commercial or residential yard with the intent to commit any theft or any felony therein.”
    2
    Section 13-1507(A), A.R.S., provides that a person commits second-degree burglary
    “by entering or remaining unlawfully in or on a residential structure with the intent to commit
    any theft or any felony therein.”
    3
    “jumped up” to get out of bed and was immediately shot. He sustained a total of four
    gunshot wounds and was also stabbed multiple times as he struggled with the intruders. He
    nonetheless managed to “r[u]n them out of the [bed]room” before collapsing on the living
    room floor, mortally wounded. The two assailants proved to be fifteen-year-old Allen
    Pacheco and his seventeen-year-old brother Johnny.
    ¶5            Tom and Marilyn have a son, Nathan, who in September 2003 was twenty-two
    years old. Cynthia Johnson had known Nathan for years, considered him a family friend, and
    had recently allowed Nathan to live with her family for a time.3 Johnson’s family consisted
    of herself, her longtime boyfriend Todd, and their three children, whose ages at the time of
    trial were eleven, eight, and three.
    ¶6            On Tuesday, September 9, the day before the murder, a distraught Johnson had
    gone to Nathan’s parents’ home, awakening Tom and Marilyn at 5:00 a.m. to tell them she
    believed Nathan had molested her then-nine-year-old daughter the night before. When the
    alleged molestation occurred, Johnson and Todd had gone out for the night, leaving Allen
    Pacheco, a friend of Nathan’s, to babysit their children.
    ¶7            On Wednesday night, September 10, eight people in two vehicles drove to the
    home of Nathan’s parents, looking for Nathan. Johnson drove a van with three male
    3
    Nathan is apparently a troubled young man who had caused problems for his parents
    since he was a teenager. He had not graduated from high school and “definitely was not
    succeeding” in life. His mother described him to one of the investigating officers as “a thief,
    a druggie, and a liar.” After being “kicked out” of the family home by his parents, Nathan
    would sometimes stay in their enclosed back porch or in a shed in their backyard, but he was
    essentially homeless.
    4
    passengers; four other males, including Allen and Johnny Pacheco, rode together in a car.
    The men believed Nathan had stolen a bicycle that belonged to one of them, and recovering
    the bicycle was among the reasons for going to Nathan’s parents’ home to look for him.
    Another was Johnson’s desire to avenge the molestation of her daughter. Johnson later told
    officers that she had spent “probably twelve hours” unsuccessfully looking for Nathan on
    Tuesday and that “[other] people were out looking for [him]” as well.
    ¶8            Johnson believed Nathan was again living in a shed in his parents’ backyard.
    As she later told officers, the plan on Wednesday night was for the men to “go in the back
    yard, look in the shed, get Nathan, . . . lure him out,” “put him in the van and . . . hold him
    until we got to the house” where she and others would then “beat him up. . . . [W]e were
    gonna kick his ass.”
    ¶9            Only one of the seven young men testified at trial. Wayne Besenhofer, one of
    Johnson’s three passengers, testified that, on the way to the victims’ home, conversation in
    the van had turned to Nathan’s alleged molestation of Johnson’s daughter. A “very upset,”
    “very agitated and very livid” Johnson said they were “going to get this guy [and hurt him]
    because he [had] hurt her daughter.” Johnson detailed the plan that called for Allen to lure
    Nathan to the front of the house and for the others then “to get out and grab him and throw
    him in the . . . back of the van.” According to Besenhofer, Nathan would supposedly be “out
    back, in the back of the house, either in a shed or on the back porch or somewhere,” waiting
    for Allen as Nathan and Allen had prearranged.
    5
    ¶10           As it happened, however, Nathan was not there. While Johnson waited in the
    van, Allen signaled the other six males to assemble outside the house. At least four of the
    seven were armed with some kind of weapon. After failing to find Nathan in the yard, the
    shed in the backyard, or the enclosed back porch, all seven returned to the carport. There
    they tried a door leading into the house and found it locked. Allen broke a window in the
    door, reached in, and unlocked the door, through which all seven men then entered the home.
    ¶11           After the group quickly determined Nathan was not inside, Allen and Johnny
    Pacheco entered the sleeping victims’ bedroom. Armed with a gun one of the other men had
    brought, Allen yelled at the victims, causing Tom to jump up, and Allen “then just started
    shooting.” Four of the men immediately ran from the house, and three of them got into the
    waiting van. At different points, Johnson asked what had happened, where Allen was, and
    “did you get [Nathan]?” After driving around the victims’ neighborhood briefly, Johnson
    drove the van and her passengers back to her house.
    ¶12           In subsequent days, police detectives interviewed Johnson twice, the second
    time after other detectives had interviewed Allen and Johnny Pacheco. Johnson was initially
    dishonest but eventually admitted having driven the van to the victims’ home and having
    waited in the vehicle, expecting the men to return with Nathan and “throw him in the back”
    of the van.
    6
    Discussion
    ¶13           Johnson concedes she participated in a conspiracy to kidnap Nathan but
    contends she had no role whatever in the burglary of his parents’ home. She maintains the
    plan to kidnap Nathan assumed he would be found either in the shed in his parents’ backyard
    or in the yard itself; thus, “[Johnson]’s conspiracy consisted of a plan to kidnap Nathan from
    a totally different structure than [his parents’] home.” Because she neither planned, intended,
    nor participated in the burglary of the Snyders’ home, Johnson claims the evidence was
    insufficient to sustain her conviction for felony murder. The state counters that it was not
    required to prove Johnson knew her accomplices would enter the victims’ home, only that
    she intended they “commit any burglary on the Snyder property, and that one or more of them
    was armed with a deadly weapon or dangerous instrument.”
    ¶14           The offense of felony murder does not require that the defendant have been
    charged with and convicted of the underlying predicate felony. “The jury must simply find
    that the defendant committed or attempted to commit it.” State v. Lacy, 
    187 Ariz. 340
    , 350,
    
    929 P.2d 1288
    , 1298 (1996); see also State v. Eastlack, 
    180 Ariz. 243
    , 258, 
    883 P.2d 999
    ,
    1014 (1994). Because Johnson did not personally commit a burglary on the Snyder property,
    the state correctly concedes that she was, at most, an accomplice to a burglary. As defined
    in A.R.S. § 13-301, an accomplice is one
    who with the intent to promote or facilitate the commission of
    an offense:
    1. Solicits or commands another person to commit the
    offense; or
    7
    2. Aids, counsels, agrees to aid or attempts to aid
    another person in planning or committing the offense[; or]
    3. Provides means or opportunity to another person to
    commit the offense.
    The state was thus required to prove that Johnson had intentionally aided or attempted to aid
    others in planning or committing first-degree burglary.4 See 
    Lacy, 187 Ariz. at 350
    , 929 P.2d
    at 1298.
    ¶15           Although Johnson has not cited them, we find three supreme court cases
    dispositive of her appeal: State v. Wall, 
    212 Ariz. 1
    , 
    126 P.3d 148
    (2006); Evanchyk v.
    Stewart, 
    202 Ariz. 476
    , 
    47 P.3d 1114
    (2002); and State v. Phillips, 
    202 Ariz. 427
    , 
    46 P.3d 1048
    (2002). In Phillips, the court rejected the state’s argument that “a defendant [is] liable
    for all acts of an accomplice as long as the defendant aided the accomplice in planning or
    committing any related offense.” 
    202 Ariz. 427
    , ¶ 
    35, 46 P.3d at 1056
    . Instead, the court
    held A.R.S. § 13-303(A)(3) imposes accomplice liability upon a defendant only for the
    specific offenses the defendant “intended to aid or aided another in planning or committing.”
    
    202 Ariz. 427
    , ¶ 
    37, 46 P.3d at 1057
    . As the court stated in Evanchyk, which it decided
    contemporaneously with Phillips, a defendant cannot “be convicted of felony murder
    4
    The state notes it “could (and should)” have alleged as predicate offenses burglary
    under A.R.S. §§ 13-1506, 13-1507, or 13-1508, as well as kidnapping under A.R.S.
    § 13-1304, but acknowledges that, “having chosen to allege only first degree burglary as the
    predicate offense, the State was limited to that theory when the case was submitted to the
    jury.” See generally State v. Sanders, 
    205 Ariz. 208
    , ¶¶ 16-21, 
    68 P.3d 434
    , 439-40 (App.
    2003).
    8
    committed by a codefendant unless [the defendant] was both an accomplice and a participant
    in the underlying felony.” 
    202 Ariz. 476
    , ¶ 
    14, 47 P.3d at 1118
    .
    ¶16           Refining the test still further in its recent decision in Wall, the court
    underscored that “reasonable foreseeability is not the test for accomplice responsibility in
    Arizona.” 
    212 Ariz. 1
    , ¶ 
    21, 126 P.3d at 152
    . “[I]t is the intent of the one charged as an
    accomplice, rather than the intent of the main actor, that controls the accomplice’s criminal
    responsibility.” 
    Id. ¶ 20.
    In short, Johnson can be held responsible for felony murder only
    if Tom Snyder’s death resulted “‘in the course of and in furtherance of’” the specific burglary
    she intended to facilitate or commit. Phillips, 
    202 Ariz. 427
    , ¶¶ 39, 
    41, 46 P.3d at 1057
    ,
    quoting § 13-1105(A)(2).
    ¶17           What neither party has articulated clearly on appeal is that at least two separate,
    first-degree burglaries were committed on the night of September 10, 2003.5 The first
    occurred when the seven men, several of whom were armed, entered the Snyders’ fenced
    backyard. See State v. Bottoni, 
    131 Ariz. 574
    , 575, 
    643 P.2d 19
    , 20 (App. 1982) (“[T]he
    crime of burglary is complete when entrance to the [residential yard] or structure is made
    with the requisite criminal intent. Burglary does not require the successful completion of the
    underlying felony.”) (citation omitted); see also State v. Taylor, 
    25 Ariz. App. 497
    , 499, 
    544 P.2d 714
    , 716 (1976) (essence of burglary is entry with requisite intent). The second
    5
    Pursuant to A.R.S. § 13-1508, what would otherwise have been a second-degree
    burglary of the Snyders’ home, see A.R.S. § 13-1507, and a third-degree burglary of their
    yard or shed, see A.R.S. § 13-1506, both became first-degree burglaries because some of the
    men were armed with a deadly weapon or dangerous instrument.
    9
    occurred when the men forced their way into the Snyders’ home. 6 Not only was their entry
    into the house a separate and distinct burglary from their entry into the backyard and shed
    but, crucially, it was the burglary “in the course . . . and . . . furtherance of [which]” the
    murder of Tom Snyder occurred. § 13-1105(A)(2).
    ¶18           At oral argument, the state for the first time advanced the concept of a “single,
    overarching” burglary offense, which it claimed was the predicate felony alleged by the
    nonspecific reference to first-degree burglary in the felony murder count of the indictment.
    Such a generalized offense, it asserted, broadly encompassed any of the various entries made
    on the Snyder property and supplied a sufficient predicate for the felony murder charge. But
    we find no statutory support for the state’s contention and therefore reject it. The burglary
    statutes define no such unified or “overarching” burglary offense. Instead, they distinguish
    between nonresidential structures and fenced commercial or residential yards, on the one
    hand, see § 13-1506(A), and residential structures on the other, see § 13-1507(A). They
    distinguish as well between armed and unarmed entries. See § 13-1508. And the felony
    murder statute preserves those distinctions by referring to the included predicate offenses as
    “burglary under § 13-1506, 13-1507 or 13-1508.” § 13-1105(A)(2).
    ¶19           It is certainly possible that Cynthia Johnson, infuriated about what she believed
    Nathan had done to her nine-year-old daughter, might well have directed the seven men she
    and her boyfriend had recruited to hunt everywhere for Nathan until they found him,
    6
    Whether the men committed a third discrete burglary by actually entering the shed
    in the backyard or whether they determined simply by looking into it that Nathan was not
    inside depends upon an unresolved factual question we need not address.
    10
    regardless of where on the Snyders’ property he might be. Johnson might in that case have
    been an accomplice to the separate burglary of the Snyder home during which Tom Snyder
    was killed. But, after scouring the trial court record, we have been unable to find any
    reasonable evidence to support that essential finding.
    ¶20           Johnson testified at trial that she had never planned with the seven men to
    break into the Snyders’ house. Both Nathan and his father had told her Nathan “stayed in the
    shed in the backyard, not in the house,” and Johnson claimed Allen Pacheco had prearranged
    with Nathan to meet him in the backyard of the Snyder home. Nathan was to leave the gate
    open for Allen and be waiting for him in the yard. According to Johnson, the men were
    never supposed to enter the Snyders’ house, and she would have expressly instructed them
    not to had she known they might.
    ¶21           Johnson’s trial testimony was consistent with her earlier statements to police
    officers in a pre-arrest interview five days after the murder. Johnson had insisted then that
    there had been no plan to enter the Snyders’ home and that the only plan was to lure Nathan
    from the backyard or the shed out to the street and into Johnson’s van. Although she knew
    Tom Snyder had guns “all over his house,” Johnson stated she had never thought to tell the
    seven men that “[be]cause they weren’t supposed to be going in the house.”
    ¶22           The only witness called at trial who could have contradicted Johnson instead
    supported her testimony. Wayne Besenhofer testified that the plan that night had called for
    Nathan to be waiting outside for Allen, who was supposed to go get Nathan and bring him
    out to the front of the house where the other six men would “grab him and throw him in the
    11
    back . . . of the van.” When Allen did not find Nathan initially, he signaled the others to join
    him. Besenhofer testified that, after they then failed to find Nathan in the yard, the shed, or
    an enclosed porch connected to the house that Besenhofer called an “add-on,” they all
    proceeded to the carport where Allen broke the window in the door through which they
    gained entry to the house. Besenhofer testified he was unaware of any preexisting plan to
    break into the house—in part because Nathan was supposed to be waiting outside for Allen.
    Besenhofer described their entry into the Snyders’ home as having happened on the “spur of
    the moment.”
    ¶23            At oral argument, the state maintained there was evidence showing Johnson
    had knowledge of a preexisting plan to enter the Snyders’ home, pointing to a single remark
    Johnson made in the second of her two recorded statements to police detectives. Johnson had
    said: “I was in a blue van. And they said, ‘[Y]ou’ll see us come out the door.’” On cross-
    examination at trial, she acknowledged having said “door” but explained she had meant a
    “gate or a door,” impliedly referring to the entrance to the backyard.             On redirect
    examination, she testified she had simply confused the two terms “because there was never
    a door involved except for the shed.”
    ¶24            Because the state apparently believed it only needed to prove Johnson was an
    accomplice to the burglary of the shed in order to establish the requisite predicate felony, the
    jury was not asked to determine whether Johnson was also an accomplice to the separate
    burglary of the Snyder residence. Given the marked lack of any other evidence that Johnson
    intended or envisioned that anyone would enter the house in search of Nathan, we are not
    12
    persuaded that her one isolated reference to a “door” would have carried as much weight as
    the state claims or convinced the jury that Johnson had also been an accomplice to the
    burglary of the home. As noted above, Wayne Besenhofer testified without contradiction
    that breaking into the house had been entirely unplanned and had occurred spontaneously.
    ¶25           In short, although Johnson planned and intended to aid the first burglary of the
    backyard and shed, there was simply no substantial evidence from which a reasonable jury
    could have concluded that she knew, intended, or even expected that the seven men might
    also burglarize the Snyders’ home in search of Nathan. See State v. Spears, 
    184 Ariz. 277
    ,
    290, 
    908 P.2d 1062
    , 1075 (1996) (conviction must be supported by substantial evidence).
    The state did not argue otherwise in its brief. Believing it needed to prove only that Johnson
    had been an accomplice to the burglary of the shed, the state simply did not address the lack
    of evidence that she was an accomplice to the separate burglary of the house.7 Because it
    was the latter burglary during which the murder occurred and there was no substantial
    evidence Johnson intended to facilitate the commission of that particular offense, her
    conviction for felony murder cannot stand. See Wall, 
    212 Ariz. 1
    , ¶¶ 20-
    21, 126 P.3d at 152
    ;
    Evanchyk, 
    202 Ariz. 476
    , ¶ 
    14, 47 P.3d at 118
    ; Phillips, 
    202 Ariz. 427
    , ¶ 
    37, 46 P.3d at 1057
    .
    7
    Whether it is telling or merely coincidental, just before the court instructed the jury,
    the state requested dismissal of the count in the indictment that charged Johnson with first-
    degree burglary. It is true that felony murder does not require the defendant to be charged
    with and convicted of the predicate felony; still, the jury “must . . . find that the defendant
    committed or attempted to commit it.” State v. Lacy, 
    187 Ariz. 340
    , 350, 
    929 P.2d 1288
    ,
    1298 (1996). Although the reasons for the state’s decision to request dismissal are neither
    evident from the record nor were they supplied at oral argument, the dismissal appears to
    lend additional support to Johnson’s argument.
    13
    ¶26            At most, Johnson aided the commission of the residential burglary only after
    the fact, by driving some of the participants from the scene, failing to call the police after she
    learned what had happened, and lying to police officers initially about the extent of her
    knowledge and involvement. Her knowing role in the second burglary thus began only after
    the offense had already been committed. However, “[t]o be an accomplice, a person’s first
    connection with a crime must be prior to, or during, its commission; it cannot be after the
    commission of the offense.” 21 Am. Jur. 2d Criminal Law § 205 (1998). And the liability
    of an accessory after the fact is clearly different from that of a principal or an accomplice.
    State v. Hill, 
    26 Ariz. App. 37
    , 38, 
    545 P.2d 999
    , 1000 (1976).
    ¶27            Johnson was clearly an accomplice to the first burglary of the Snyders’
    backyard—while intending to aid in the commission of that burglary with the goal of
    kidnapping Nathan, she drove some of the perpetrators to the victims’ home, waited during
    the commission of the burglary, drove several accomplices away from the scene, and helped
    to conceal their participation in the crime. Because there was no similar evidence that she
    intended the second burglary to occur or intended beforehand to facilitate its commission,
    Johnson was at most an accessory after the fact to that offense. Had she been criminally
    charged in relation to the second burglary, which she was not, the appropriate charge would
    have been hindering prosecution in violation of A.R.S. §§ 13-2510, 13-2511, or 13-2512, the
    statutory embodiment of the “distinct, independent,” common-law offense of being an
    accessory after the fact. State v. Hughes, 
    189 Ariz. 62
    , 74, 
    938 P.2d 457
    , 469 (1997).
    14
    Disposition
    ¶28           The absence of any substantial evidence that Johnson was an accomplice to the
    first-degree burglary of the Snyder residence requires us to reverse her conviction for felony
    murder and vacate the attendant sentence of life imprisonment. Her conviction and sentence
    for conspiracy to commit kidnapping are affirmed.8
    PHILIP G. ESPINOSA, Judge
    CONCURRING:
    PETER J. ECKERSTROM, Presiding Judge
    J. WILLIAM BRAMMER, JR., Judge
    8
    Pursuant to A.R.S. § 13-709(B), Johnson was entitled to receive presentence
    incarceration credit on both of her concurrent sentences. She remains entitled to that credit
    on her conspiracy sentence.
    15