State of Arizona v. Arvin Whit Williams

FILED BY CLERK
IN THE COURT OF APPEALS
STATE OF ARIZONA OCT 16 2013
DIVISION TWO
COURT OF APPEALS
DIVISION TWO

THE STATE OF ARIZONA, )
)
Appellee, ) 2 CA-CR 2012-0411
) DEPARTMENT B
v. )
) OPINION
ARVIN WHIT WILLIAMS, )
)
Appellant. )
)

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause No. CR20112894001

Honorable Jose H. Robles, Judge Pro Tempore

AFFIRMED

Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz and Diane Leigh Hunt Tucson
Attorneys for Appellee

Law Offices of Cornelia Wallis Honchar, P.C.
By Cornelia Wallis Honchar Tucson
Attorney for Appellant

E C K E R S T R O M, Judge.
¶1 Following a jury trial, appellant Arvin Williams was convicted of attempted

robbery and placed on a three-year term of probation. Emphasizing his acquittals on

related charges, he maintains on appeal that the state presented insufficient evidence to

convict him of this offense, and he argues the trial court consequently erred in denying

his motion for judgment of acquittal made pursuant to Rule 20, Ariz. R. Crim. P. We

affirm for the reasons that follow, and we publish this opinion to remind defendants and

their counsel that an acquittal on one charge does not affect a court’s analysis of the

sufficiency of evidence supporting another charge. See Ariz. R. Sup. Ct. 111(b)(2)

(authorizing publication to “[c]all[] attention to a rule of law which appears to have been

generally overlooked”).

Factual and Procedural Background

¶2 We view the evidence in the light most favorable to upholding a jury’s

verdict of guilt, resolving all reasonable inferences against the defendant. See State v.

Leyvas, 221 Ariz. 181, ¶ 2, 211 P.3d 1165, 1167 (App. 2009). Williams and his

codefendant, Mario Hawkins, were charged with four offenses based on their alleged

involvement in a robbery scheme that lured potential victims using phony advertisements

posted on the internet. The charges stemmed from two separate incidents involving one

victim.

¶3 On August 2, 2011, the victim responded to an advertisement offering to

sell an “iPhone” for $400. He called Hawkins’s telephone number and arranged to meet

him at a community college campus to purchase the cell phone. There, a man drove up in

a red four-door Dodge sedan with the numbers “252” on the license plate, and he handed

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the victim an empty iPhone box. Another man then approached on foot, displayed a

handgun, and demanded that the victim surrender his money. After taking the victim’s

cash, the two robbers left together in the red car. The victim later identified Williams and

Hawkins as the two men who had robbed him.

¶4 That same month, the victim saw a similar online advertisement offering to

sell an iPhone for $350. When he contacted the seller, he again was provided with

Hawkins’s telephone number. After the victim contacted police officers, he arranged to

meet with the seller on August 17 at the same community college campus. At the

designated meeting spot, police officers found Hawkins carrying an empty white box for

a cell phone. He was not carrying any weapons. In a parking lot on the same side of the

campus, officers found Williams sitting in a red four-door Dodge with the numbers “252”

on the license plate. He had been reclining in the driver’s seat below the level of the

windows, making the vehicle appear unoccupied, and he showed himself to the officers

only when they began to approach the vehicle on foot with their weapons drawn. Law

enforcement later learned that the vehicle belonged to a friend of Williams who lived in a

different city. She testified she had visited him that day in Tucson as well as on

August 2. She also testified she had let Williams, but not Hawkins, drive her car.

¶5 The trial court granted Williams’s Rule 20 motion in part and entered a

judgment of acquittal as to the attempted aggravated robbery charge from August 17

(count four).1 The court did not make any express determinations or explain the basis for

1
Aggravated robbery occurs if a person commits robbery while “aided by one or
more accomplices actually present.” A.R.S. § 13-1903(A).
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its ruling. The court denied the motion as to the remaining three counts, which it

submitted to the jury. Williams was acquitted of the two charges from the August 2

incident, specifically armed robbery (count one) and aggravated robbery (count two).

The jury found him guilty of attempted robbery committed on August 17 (count three).

This timely appeal followed the imposition of probation.

Discussion

¶6 A motion for a judgment of acquittal under Rule 20 is designed to test the

sufficiency of the evidence, State v. Neal, 143 Ariz. 93, 98, 692 P.2d 272, 277 (1984),

and the same legal standard applies to pre- and post-verdict motions. State v. West, 226

Ariz. 559, ¶ 14, 250 P.3d 1188, 1191 (2011). “[T]he controlling question is solely

whether the record contains ‘substantial evidence to warrant a conviction.’” Id., quoting

Ariz. R. Crim. P. 20(a). Substantial evidence exists if, “‘after viewing the evidence in the

light most favorable to the prosecution, any rational trier of fact could have found the

essential elements of the crime beyond a reasonable doubt.’” Id. ¶ 16, quoting State v.

Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). The substantial evidence necessary

to sustain a conviction may be circumstantial or direct. Id. If “‘reasonable minds may

differ on inferences drawn from the facts,’” the evidence is substantial and the conviction

must be upheld. Id. ¶ 18, quoting State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217

(1997). On appeal, a reviewing court must determine de novo whether sufficient

evidence supports every element of the offense. Id. ¶¶ 15-16.

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¶7 “‘The essential elements of an attempted robbery are (1) intent to commit

robbery and (2) an overt act towards that commission.’” Leyvas, 221 Ariz. 181, ¶ 34, 211

P.3d at 1175, quoting State v. Clark, 143 Ariz. 332, 334, 693 P.2d 987, 989 (App. 1984).

A person commits robbery if in the course of taking any
property of another from his person or immediate presence
and against his will, such person threatens or uses force
against any person with intent either to coerce surrender of
property or to prevent resistance to such person taking or
retaining property.

A.R.S. § 13-1902(A). Attempt is established when a person takes “any step in a course

of conduct planned to culminate in commission of an offense.” A.R.S. § 13-1001(A)(2).

A person is liable as an accomplice if he has “the intent to promote or facilitate the

commission of an offense” and either “[a]ids . . . another person in planning or

committing an offense” or “[p]rovides means or opportunity to another person to commit

the offense.” A.R.S. § 13-301(2), (3); see A.R.S. § 13-303(A)(3).

¶8 Here, the jury reasonably could have inferred that Williams intended to

help Hawkins forcibly take money from the victim on August 17, specifically by

providing a means of transportation. Given the victim’s identification of Williams and

Hawkins as the perpetrators of a similar robbery on August 2; Williams’s proximity to

the planned meeting spot on August 17; his access to and use of the vehicle that had been

used in the earlier robbery; and his apparent attempt to hide from law enforcement

officers when his vehicle was discovered, the jury had an adequate evidentiary basis to

find the state had proved all the elements of attempted robbery. As Williams points out,

the record also would have allowed the jury to draw inferences consistent with his

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innocence. But because the evidence was fairly debatable, it was sufficient to support the

conviction. See State v. Davolt, 207 Ariz. 191, ¶ 87, 84 P.3d 456, 477 (2004). We do not

reweigh the evidence on appeal. See Lee, 189 Ariz. at 603, 944 P.2d at 1217.

¶9 Williams maintains that in light of certain conflicting evidence and his

acquittals of the August 2 offenses, nothing but coincidence and speculation connected

him to the August 17 offense. But this argument incorrectly assumes that the acquittals

somehow affect the inferences drawn from the evidence or our legal determination of its

sufficiency.

¶10 “Sufficiency-of-the[-]evidence review involves assessment by the courts of

whether the evidence adduced at trial could support any rational determination of guilty

beyond a reasonable doubt.” United States v. Powell, 469 U.S. 57, 67 (1984). Such

review “should be independent of the jury’s determination that evidence on another count

was insufficient” and “should not be confused with the problems caused by inconsistent

verdicts.” Id. We disregard an acquittal in this manner because we recognize that, “in

the privacy of the jury room,” either “leniency or compromise” may lead jurors to acquit

a defendant whom they believe to be guilty. State v. Zakhar, 105 Ariz. 31, 32-33, 459

P.2d 83, 84-85 (1969). We therefore do not presume “some error . . . worked against [a

defendant],” Powell, 469 U.S. at 66, and we make no assumptions as to what “the jury

‘really meant’” by its acquittal when determining the sufficiency of evidence supporting

another charge. Id. at 68. Accordingly, Williams’s acquittals are irrelevant to

determining the sufficiency of the evidence supporting his conviction for attempted

robbery on August 17.

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¶11 Williams further argues that he could only be convicted of attempted theft,

not attempted robbery, because “there was no evidence of force or attempted force.” But

jurors may use their common sense and personal experience when deciding a case. See

State v. Aguilar, 169 Ariz. 180, 182, 818 P.2d 165, 167 (App. 1991). Thus, the jury

reasonably could conclude that the putative cell phone sale on August 17 was a

weaponless variation of the same robbery scheme from earlier that month. We agree

with the state that it was, at minimum, a debatable question whether Hawkins intended to

rob the victim or somehow “‘peaceably’ take and retain [the victim’s] money against his

will.” See Davolt, 207 Ariz. 191, ¶ 87, 84 P.3d at 477.

¶12 Contrary to Williams’s additional claim, it is an inconsequential fact that

Hawkins met police officers at the agreed upon location rather than the intended victim.

An attempt occurs when a person takes “any step” toward the commission of a crime

“under the circumstances as such person believes them to be.” § 13-1001(A)(2).

Attempting to meet with the intended victim at the designated location was an act

sufficient for attempted robbery. The officers did not need to wait for or elicit an actual

threat of violence.

Disposition

¶13 For the foregoing reasons, the conviction and probationary term are

affirmed.

/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge

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CONCURRING:

/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Presiding Judge

/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge

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