State v. Antone

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

ROBERT ANTONE, Appellant.

No. 1 CA-CR 20-0005
FILED 11-12-2020

Appeal from the Superior Court in Maricopa County
No. CR2017-135224-001
The Honorable Katherine M. Cooper, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Paul J. McMurdie delivered the Court’s decision, in which Presiding
Judge James B. Morse Jr. and Judge Maria Elena Cruz joined.

M c M U R D I E, Judge:

¶1 Robert Antone appeals his convictions and sentences for
aggravated assault and kidnapping. For the following reasons, we affirm.

FACTS1 AND PROCEDURAL BACKGROUND

¶2 Antone and his pregnant girlfriend, Z.M., entered a gas
station convenience store while Z.M.’s fifteen-year-old nephew, N.F.,
waited in the back seat of Z.M.’s two-door car. When a clerk, B.R., refused
to sell them beer because Antone appeared drunk, he became enraged and
threatened to shoot up the store.

¶3 After exiting the store to pump gas, Antone retrieved a gun
from the car and shot multiple rounds at the store while three employees
and several other people were inside and outside the building. B.R. was
shot in the legs when two bullets penetrated a store window. Antone got
into the car’s front passenger seat, pointed the gun at Z.M.’s head and
pregnant belly, and ordered her to drive away. At some point, he touched
the gun to her face, burning it.

¶4 Z.M. stopped at another convenience store to buy Antone
beer. When she returned to the car, Antone again commanded her to drive,
swearing at her and pointing the gun at her head and stomach. Z.M. felt
unable to resist Antone’s commands and was concerned for the safety of
N.F. Antone indicated he saw N.F. as “a threat” and told him at one point,
“I’ll fucking kill you too.”

¶5 While stopped adjacent to Z.M.’s car at a stoplight, another
driver saw Antone and Z.M. arguing while Antone appeared to be holding

1 We view the facts in the light most favorable to upholding the
verdicts and resolve all reasonable inferences against Antone. State v.
Mendoza, 248 Ariz. 6, 11, n.1 (App. 2019).

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a gun. After the driver pulled behind Z.M.’s car, he saw Antone acting
“aggressive” and pointing the gun at both Z.M. and N.F, and he called 911.

¶6 Based on the 911 call, a patrol officer located and pursued
Z.M.’s vehicle. Seeing the officer behind him, Antone leaned out the
passenger window and fired three shots at the police vehicle. One of the
bullets penetrated the door of a nearby car and hit the driver.

¶7 Officers eventually took Antone into custody after a high-
speed chase. When he exited the vehicle, he said, “I did it. I did everything.”

¶8 A jury convicted Antone of seven counts of aggravated
assault committed against Z.M., N.F., three convenience-store workers
including B.R., the police officer at whom Antone shot, and the nearby
driver shot during the chase. Jurors also convicted Antone of discharge of
a firearm at a structure, disorderly conduct, and two counts of kidnapping.
The jurors found Antone not guilty of the attempted aggravated assault of
an additional police officer and unlawful flight from a law enforcement
vehicle.

¶9 The superior court sentenced Antone as a category three
repetitive offender to concurrent and consecutive prison terms totaling 47.5
years. Antone appealed, and we have jurisdiction under A.R.S.
§§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).

DISCUSSION

¶10 Antone contends the evidence is insufficient to support his
convictions for the aggravated assault and kidnapping of N.F., Z.M.’s
fifteen-year-old nephew, who was riding in the back seat of the car. N.F.
did not testify at Antone’s trial.

¶11 We review whether sufficient evidence supports a conviction
de novo, “resolv[ing] any conflicts in the evidence against the defendant and
view[ing] all facts in the light most favorable to supporting the verdict.”
State v. Pena, 235 Ariz. 277, 279, ¶ 5 (2014). A defendant’s claim of
insufficient evidence fails if the record contains “substantial evidence” to
support the conviction, which is “evidence that reasonable persons could
accept as sufficient to support a guilty verdict beyond a reasonable doubt.”
Id. (internal quotation marks and citation omitted). “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. Soto-Fong, 187
Ariz. 186, 200 (1996) (internal quotation marks and citations omitted).

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¶12 To prove Antone committed an aggravated assault of N.F., as
charged, the State was required to show he “[i]ntentionally plac[ed] [N.F.]
in reasonable apprehension of imminent physical injury” using “a deadly
weapon or dangerous instrument.” A.R.S. §§ 12-1203(A)(2), -1204(A)(2).

¶13 Even though N.F. did not testify, the record contains
substantial evidence to support Antone’s conviction of aggravated assault.
See State v. Felix, 237 Ariz. 280, 289, ¶ 32 (App. 2015) (whether a defendant
placed the victim in reasonable apprehension of immediate physical injury
may be established by circumstantial evidence, without requiring the
victim’s testimony). The evidence established that after N.F. saw Antone
shoot multiple rounds at the convenience store and point his gun at Z.M.,
Antone told N.F. he would “kill [him] too” and pointed the gun at him.
Antone points to evidence that N.F. may have fallen asleep during the
ordeal, claiming he was not restrained.

¶14 To prove Antone kidnapped N.F., as charged, the State was
required to show he “knowingly restrain[ed] [N.F.] with the intent to . . .
aid in the commission of a felony.” A.R.S. § 13-1304(A)(3). A defendant
“restrains” a victim by “restrict[ing] [that] person’s movements without
consent, without legal authority, and in a manner which interferes
substantially with such person’s liberty, by either moving such person from
one place to another or by confining such person.” A.R.S. § 13-1301(2). If the
victim is under eighteen years old, as N.F. was in this case, the defendant is
deemed to restrain the victim without consent if accomplished by
“[p]hysical force, intimidation,” or any other “means including
acquiescence of the victim.” A.R.S. § 13-1301(2)(b). The State argued Antone
restrained Z.M. and N.F. with the intent of aiding his felonious flight from
law enforcement.

¶15 The record contains substantial evidence to support Antone’s
conviction for kidnapping N.F. The trial testimony established that N.F.
was confined in the back seat of a two-door car with the only exits
controlled by Z.M.—who was forced to drive at gunpoint—and Antone—
who directly threatened N.F. and showed his willingness to harm others,
including Z.M. Based on that evidence, jurors could reasonably find Antone
used threats and intimidation thereby substantially interfering with N.F.’s
liberty. See State v. Dutra, 245 Ariz. 180, ¶ 19 (App. 2018); see also State v.
Dunbar, 249 Ariz. 37, 47, ¶ 21 (App. 2020) (“The fact that [the victim]
arguably could have taken extraordinary measures to escape does not
change the fact that she was confined.”). Jurors could also reasonably find
Antone restrained N.F. to facilitate his flight from law enforcement, which
might have been jeopardized, or otherwise compromised if Antone had

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released N.F. after the convenience-store shooting.2 Cf. State v. Linden, 163
Ariz. 129, 136 (App. 1983) (finding defendant restrained victims to aid in
the commission of a felony where the restraint “facilitated the robbery and
burglary of the [victims’] home, as well as the flight from the victims’
home”).

CONCLUSION

¶16 We affirm Antone’s convictions and sentences.

AMY M. WOOD • Clerk of the Court
FILED: AA

2 Even though jurors found Antone not guilty of unlawful flight from
a law enforcement vehicle, the kidnapping statute requires only that the
defendant restrain the victim with the intent to aid in committing a felony;
it does not require the defendant to actually commit that felony. See A.R.S.
§ 13-1304(A)(3).

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