State v. Patino ( 2017 )

NOTICE: NOT FOR OFFICIAL PUBLICATION.
UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.
IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
TOMAS FIGUEROA PATINO, JR., Appellant.
No. 1 CA-CR 16-0666
FILED 11-7-2017
Appeal from the Superior Court in Maricopa County
No. CR2015-154349-001
The Honorable Jay R. Adleman, Judge
AFFIRMED
COUNSEL
Arizona Attorney General's Office, Phoenix
By Jason Lewis
Counsel for Appellee
Janelle A. McEachern, Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
STATE v. PATINO
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Michael J. Brown delivered the decision of the Court, in
which Judge Jennifer B. Campbell and Judge Margaret H. Downie (retired)
joined.
B R O W N, Judge:
¶1 Tomas Figueroa Patino appeals his conviction and sentence
for armed robbery, arguing the jury's verdict was not supported by
substantial evidence. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL BACKGROUND
¶2 Patino and his accomplice entered a store together. While
there, the two men stayed together and were observed speaking to one
another. Both selected various clothing items but Patino carried all the
items as they walked around the store. J.F., a store employee, suspected the
two men were planning to steal the clothes so he locked the door even
though the store was not scheduled to close for another 20 minutes. When
Patino's accomplice eventually indicated he wanted to leave, J.F. unlocked
the door. As soon as he stepped outside, Patino's accomplice grabbed the
door and held it open, lifted up his shirt to reveal what J.F. described as the
handle of a gun tucked in his waistband, and told J.F. not to try anything.
Seconds later, Patino exited the store with an armful of clothes, triggering
an alarm because the sensors had not been removed.
¶3 The store's video surveillance system recorded Patino and his
accomplice stealing the clothing items, but did not reveal the presence of a
weapon. In an interview with Officer Schneider, Patino admitted to
stealing clothes from the store but refused to identify his accomplice. When
asked about a weapon, Patino responded in part that "his hom[ie] did not
have a gun, he had a knife."
¶4 A jury convicted Patino of armed robbery, a class two felony.
The superior court found that Patino had at least two prior felony
convictions and sentenced him to 15.75 years as a non-dangerous, repetitive
offender. Patino then filed this timely appeal.
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STATE v. PATINO
Decision of the Court
DISCUSSION
¶5 We review a claim of insufficient evidence de novo, although
our review is limited to whether substantial evidence exists to support the
verdict. State v. West, 226 Ariz. 559, 562-63, ¶¶ 15, 19 (2011). "Substantial
evidence is that which reasonable persons could accept as sufficient to
support a guilty verdict beyond a reasonable doubt." State v. Davolt, 207
Ariz. 191, 212, ¶ 87 (2004). Thus, "the relevant question is whether . . . any
rational trier of fact could have found the essential elements of the crime
beyond a reasonable doubt." State v. Cox, 217 Ariz. 353, 357, ¶ 22 (2007)
(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Direct and
circumstantial evidence are given equal probative value. See State v. Bible,
175 Ariz. 549, 560, n.1 (1993). "[W]e view the evidence in the light most
favorable to sustaining the verdict, and we resolve all inferences against the
defendant." Davolt, 207 Ariz. at 212, ¶ 87.
¶6 Robbery is the taking of another person's property against his
or her will and from his or her "person or immediate presence." Ariz. Rev.
Stat. ("A.R.S.") § 13-1902(A). Robbery also requires the use, or threatened
use, of force with the "intent either to coerce surrender of property or to
prevent resistance to such person taking or retaining property." Id. As
relevant here, armed robbery occurs when, during a robbery, a person or an
accomplice is "armed with a deadly weapon or a simulated deadly weapon."
A.R.S. § 13-1904(A)(1). "[A]n accomplice is one who knowingly and with
criminal intent participates, associates, or concurs with another in the
commission of a crime." State v. McNair, 141 Ariz. 475, 480 (1984); see also
A.R.S. § 13-301.
¶7 Patino concedes that he and "an unknown accomplice"
intended to rob the store, but argues no substantial evidence exists to prove
he intended to participate in an armed robbery. Thus, we understand
Patino's argument as challenging the sufficiency of the evidence on the
distinguishing element between robbery and armed robbery—the presence
of a deadly weapon. See State v. Hargrave, 225 Ariz. 1, 12, ¶¶ 34, 36 (2010)
(explaining that "armed robbery" includes all the elements of robbery and
an additional element—"the presence of a weapon"). Additionally, Patino
appears to contend there is insufficient evidence to show he is liable under
a theory of accomplice liability because he did not know his accomplice
would commit armed robbery. See State v. Wall, 212 Ariz. 1, 5, ¶ 20 (2006)
(explaining that we must look to the intent of the accomplice to aid the main
actor, not the intent of the main actor).
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STATE v. PATINO
Decision of the Court
¶8 The State did not present evidence that Patino possessed a
deadly weapon or dangerous instrument during the robbery. Instead, the
State's evidence showed that Patino's accomplice had a knife or a gun, either
of which constitute a deadly weapon or dangerous instrument. See State v.
Schaffer, 202 Ariz. 592, 595, ¶ 9 (App. 2002) (stating that guns and knives are
inherently dangerous as a matter of law and thus are deadly weapons or
dangerous instruments). Therefore, the jury could convict Patino of armed
robbery under A.R.S. § 13-1904 only if it found Patino intentionally
participated in the commission of armed robbery. See McNair, 141 Ariz. at
480.
¶9 In McNair, the defendant and another man, Turner, pulled
into a gas station in the same car. 141 Ariz. at 478. When the gas station
attendant turned to retrieve an item, Turner hit him with a jack, causing
him to fall to the ground. Id. at 479. The defendant and Turner then stole
money from the attendant and drove away in the same car. Id. A jury
convicted the defendant of armed robbery, and on appeal he argued he was
not an accomplice to that crime. Id. Our supreme court upheld the
conviction, finding that "[s]ufficient evidence existed from which the jury
could find that the defendant was an accomplice and guilty of the crime of
armed robbery." Id. at 481.
¶10 Like McNair, the evidence here is sufficient to support
Patino's conviction of armed robbery under the theory that Patino's
accomplice was armed with a deadly weapon. See State v. Anderson, 210
Ariz. 327, 342, ¶ 54 (2005) ("A defendant need not personally use or threaten
to use the deadly weapon if an accomplice does so."). Patino and his
accomplice drove to and entered the store together. Both remained by each
other in the store, selected clothing items together, and communicated with
one another. Although Patino was the only one that left the store carrying
the stolen clothes, his accomplice was seen placing clothing items in his
arms. As soon as they exited the store, they went straight to the car they
arrived in and drove off together. J.F. testified that he saw the handle of a
gun tucked in the accomplice's waistband. Moreover, Patino told Officer
Schneider that his accomplice had a knife. Therefore, sufficient evidence
exists in the record to support Patino's conviction for armed robbery.
¶11 Finally, the State notes that the sentencing minute entry
incorrectly states that Patino was convicted of a "non-dangerous" offense
because dangerousness is implicit in armed robbery. The State, however,
did not file a cross-appeal raising this issue. Assuming the sentencing
minute entry should be corrected, we do not have the power to take such
action. See State v. Dawson, 164 Ariz. 278, 286 (1990) ("Our power to correct
4
STATE v. PATINO
Decision of the Court
an illegal sentence to correspond to a verdict is predicated on an appeal by
the state.").
CONCLUSION
¶12 Based on the foregoing, we affirm Patino's conviction and
sentence.
AMY M. WOOD • Clerk of the Court
FILED: AA
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