Opinion
No. 1 CA-CR 11-0457
02-12-2013
STATE OF ARIZONA, Appellee, v. REUBEN CHARLES COWAN, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Division And Myles A. Braccio, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Margaret M. Green, Deputy Public Defender Attorneys for Appellant
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
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-110496-001
The Honorable Christopher T. Whitten, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Division
And Myles A. Braccio, 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 GEMMILL, Judge ¶1 Reuben Charles Cowan appeals his convictions and sentences for first-degree felony murder, first-degree burglary, and two counts of attempted armed robbery. He argues insufficient evidence supports the convictions. For the reasons that follow, we affirm. ¶2 Cowan argues that in the absence of any eyewitness identification and any evidence linking him to the murder weapon or demonstrating his motive or intent to rob the victim, the superior court erred in denying his motion for judgment of acquittal and the jury relied on speculation to convict him. He argues that the evidence the State offered at trial was instead consistent with his testimony that he went to the victim's condominium to buy marijuana and stumbled on the murder in progress. ¶3 We review de novo a court's denial of a motion for judgment of acquittal and the sufficiency of the evidence to support a conviction. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). We view the facts in the light most favorable to upholding the jury's verdict at trial and the court's denial of the motion for judgment of acquittal, resolving all conflicts against defendant. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983); State v. Sullivan, 205 Ariz. 285, 287, ¶ 6, 69 P.3d 1006, 1008 (App. 2003). We do not distinguish between direct and circumstantial evidence, see State v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993), and we leave credibility determinations to the jury. State v. Williams, 209 Ariz. 228, 231, ¶ 6, 99 P.3d 43, 46 (App. 2004). ¶4 A trial court may enter a judgment of acquittal only if there is "no substantial evidence" to support a conviction. State v. Davolt, 207 Ariz. 191, 212, ¶ 87, 84 P.3d 456, 467 (2004); see Ariz. R. Crim. P. 20(a). "Substantial evidence is that which reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt." Davolt, 207 Ariz. at 212, ¶ 87, 84 P.3d at 467. If reasonable persons may fairly differ concerning whether certain evidence establishes a fact in issue, that evidence must be considered as "substantial." Id. (citation omitted). "To set aside a jury verdict for insufficient evidence 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). ¶5 We find that the evidence was sufficient to survive Cowan's motion for judgment of acquittal and to support his convictions for first-degree burglary and attempted armed robbery, and for felony murder, for causing the victim's death during the course of and in furtherance of these offenses. See Ariz. Rev. Stat. ("A.R.S.") § 13-1105(A)(2) (2010). As charged here, first-degree burglary requires proof that the defendant unlawfully entered a residential structure armed with a deadly weapon, with the intent to commit theft or any felony therein. A.R.S. § 13-1508 (2010). Attempted armed robbery requires proof that a person armed with a deadly weapon attempted to take property from another's person or immediate presence against his will by using threats or force with intent to coerce surrender of the property. A.R.S. §§ 13-1001 (2010), -1904 (2010). ¶6 The victim's girlfriend testified that she and her boyfriend awoke sometime after 10 p.m. to the sound of a loud noise "like a crash or something breaking." Her boyfriend went to the living room, and she heard a male repeatedly asking, "Where's the money?" She then heard the sound of five or six gunshots. A man holding a gun then entered the master bedroom and also demanded of her, "Where's the money?" The victim's girlfriend heard the voice of only one person the entire time. The victim died of gunshot wounds to the chest and back. ¶7 Police identified Cowan's fingerprint in the blood on the master bedroom door. Police also identified Cowan's fingerprint on the top part of the west security gate adjacent to the victim's apartment. The victim's DNA was identified as the major contributor to a bloodstain that also was found on the west security gate, and Cowan's DNA could not be excluded as a minor contributor. ¶8 Police found $10,100 in cash in a drawer in the master bedroom and twelve pounds of marijuana elsewhere in the condominium. The condominium's back door was cracked as if it had been kicked in. A neighbor and her visitor saw two men running away from the rear of the condominium immediately after they heard the gunshots, but they could offer only a general description and could not identify anyone. ¶9 When he was arrested eight months after the murder, Cowan first denied knowing the victim or ever having been to his condominium, but later equivocated and said it was possible that he purchased marijuana from the victim at some point. At trial, Cowan testified he had gone to the condominium the night of the murder to buy marijuana, having purchased marijuana there two weeks earlier. He testified he entered the dark condominium through an open back door, heard shooting, and must have left his fingerprint on the master bedroom door by accident while he tried to avoid the gunfire. He said he saw a man holding a gun in the bedroom, and stumbled over a man lying on the floor on the way out. Cowan did not claim to have sustained any injury causing him to bleed while at the condominium, and he explained that he did not realize blood was on his hands. ¶10 Relying on State v. Mathers, 165 Ariz. 64, 796 P.2d 866 (1990), Cowan contends the evidence presented here amounts to speculation that is insufficient to sustain a conviction. In Mathers, the Arizona supreme court found the evidence supporting a conviction for murder to be insufficient considering the lack of direct evidence of the defendant's participation in the murder. Id. at 71, 796 P.2d at 873. Cowan's reliance on Mathers, however, is misplaced because in that case no evidence established that the defendant "went to the [victims'] home, was at the [victims'] home, was in the [victims'] home, or participated in the murder and other crimes." Id. at 69, 796 P.2d at 871. Because Cowan's fingerprints and his own testimony confirm his presence at the victim's condominium at the time of the murder, Mathers is clearly distinguishable. ¶11 It was for the jury, not us, to determine the credibility of Cowan's explanation of why his fingerprint was in blood on the bedroom door and on the gate with a bloodstain matching the victim's DNA (the west security gate). On this record, the jury could reasonably infer that Cowan had gone to the condominium of a person whom he knew dealt marijuana with the intent of robbing him at gunpoint, kicked in the back door to gain entry, demanded money from the victim resulting in the victim's murder, and then entered the master bedroom wielding the firearm and demanded money from the victim's girlfriend. We find the evidence sufficient to support the denial of the motion for judgment of acquittal and to support the convictions. ¶12 For the foregoing reasons, we affirm Cowan's convictions and sentences.
We cite the current versions of the statutes as they have not materially changed since the commission of the offenses.
___________________
JOHN C. GEMMILL, Presiding Judge
CONCURRING: ____________
MARGARET H. DOWNIE, Judge
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DIANE M. JOHNSEN, Judge