Opinion
1 CA-CR 12-0315
02-07-2013
STATE OF ARIZONA, Appellee, v. DYLAN JAMES NOACK, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section and Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Christopher V. Johns, 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(Not for Publication -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. CR2010-151248-002 SE
The Honorable Robert E. Miles, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
and Joseph T. Maziarz, Assistant Attorney General
Attorneys for Appellee
Phoenix James J. Haas, Maricopa County Public Defender
By Christopher V. Johns, Deputy Public Defender
Attorneys for Appellant
Phoenix BROWN, Judge ¶1 Dylan James Noack appeals from his convictions for first-degree felony murder, theft, kidnapping, and burglary in the first degree. For the reasons set forth below, we affirm.
BACKGROUND
We view the trial evidence in the light most favorable to sustaining Noack's convictions and resolve all reasonable inferences against him. State v. Manzanedo, 210 Ariz. 292, 293, ¶ 3, 110 P.3d 1026, 1027 (App. 2005).
¶2 On August 28, 2010, Noack, Sylvia, and Carlos went to an apartment in Mesa occupied by Leo and Armando, to purchase marijuana from Leo, an acquaintance of Sylvia. When they arrived at the complex, Noack and Sylvia went upstairs to the apartment to make the purchase, but Carlos remained outside because Sylvia "didn't want [Leo] to think it was anything other than what we were going there for." ¶3 Armando let Noack and Sylvia enter the apartment, and Noack and Sylvia negotiated the price of the marijuana with Leo. Sylvia wanted Carlos to examine the quality of the marijuana, so Armando called Carlos upstairs and let him into the apartment. ¶4 While Sylvia was counting the money to purchase the marijuana, she heard Noack tell Leo to get on the floor. When Sylvia looked up, she saw Noack, with a gun in his hand, push Leo against the wall. Sylvia then saw "a red dot from [Noack's] gun on Leo's chest." Sylvia turned towards the door and started to leave when she heard "about four or five shots." Sylvia testified that when she, Noack, and Carlos drove away after the shooting, she saw the bag of marijuana they got from Leo in the car "between the driver and the passenger seat." She never saw any of the money. ¶5 Armando testified that he saw Noack "take a swing and hit Leo right in the back of the head" while Sylvia was counting the money. Armando recalled Noack saying, "You guys are getting robbed." As soon as Armando took a step toward Leo, Carlos and Noack "pulled out [their guns]" simultaneously. ¶6 Carlos pointed his gun at Armando and told him to turn around and put his hands on his head. Carlos escorted Armando at gunpoint towards a washer/dryer and told Armando to "go slowly to the ground," to "keep [his] face and eyes . . . towards the floor" and "not to move." Armando felt the gun flush against the back of his head and did as he was told. As soon as Armando was on the floor, Carlos stood up and that's when "everything started going on." Armando could not see what was happening with Leo, but "started hearing gunfire going off." After he heard the assailants leave the apartment and the door close, Armando immediately dialed 9-1-1 as he "watched [Leo] take his last breaths." ¶7 A medical examiner discovered twelve gunshot wound paths in Leo's body and recovered nine bullets, four "solid" and five "hollow point." Four of the bullets were determined to have come from a .45 caliber gun Noack owned; four other .40 caliber bullets were consistent with having been fired from a .40 caliber Glock handgun. ¶8 The State charged Noack and Carlos with first-degree murder, armed robbery, kidnapping and first-degree burglary.Noack and Carlos were tried together. The jury found both Noack and Carlos guilty of first-degree felony murder, kidnapping and first-degree burglary, and guilty of the lesser-included offense for armed robbery of theft of property of a value of $2000 or more but less than $3000. ¶9 Noack received an aggravated sentence of life in prison without the possibility of parole for 25 years for first-degree murder, and maximum prison sentences for the remaining counts, to be served concurrently. Noack timely appealed.
The State filed charges against Sylvia as well, but she pled guilty to unrelated drug charges and testified at trial. Neither Carlos nor Sylvia is a party to this appeal.
The State also charged Noack with two counts of misconduct involving weapons, to which he pled guilty at the conclusion of the trial.
DISCUSSION
110 At the close of the State's case, Carlos moved for a judgment of acquittal on the burglary charge, arguing he did not "enter or remain unlawfully" in the apartment because he was asked to come upstairs. Noack joined in Carlos's motion and also moved for a judgment of acquittal on all of the charges, arguing there was not "substantial evidence presented to warrant a reasonable jury to convict." The trial court denied both motions. ¶11 Noack argues the trial court erred when it denied his motion for a judgment of acquittal for the felony murder charge because the State failed to present sufficient evidence of a necessary predicate offense. Specifically, Noack asserts that by entering the apartment at Leo's invitation, he could not be found to have entered the apartment unlawfully, thereby negating the elements of burglary in the first degree. ¶12 We review de novo the denial of a motion for a Rule 20 judgment of acquittal based on sufficiency of the evidence. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). A trial court must grant a directed verdict of acquittal only if "no substantial evidence supports the conviction." State v. Davolt, 207 Ariz. 191, 212, ¶ 87, 84 P.3d 456, 477 (2004). "Substantial evidence is that which reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt." Id. Substantial evidence may be comprised of either circumstantial or direct evidence (or both), and "[a] conviction may be sustained on circumstantial evidence alone." State v. Blevins, 128 Ariz. 64, 67, 623 P.2d 853, 856 (App. 1981). If reasonable minds may differ on the inferences to be drawn from the facts, a motion for judgment of acquittal should be denied and the case must be submitted to the jury. West, 226 Ariz. at 563, ¶ 18, 250 P.3d at 1192. We view any possible conflicts in the evidence in favor of sustaining the verdicts. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). ¶13 The felony murder statute provides in relevant part:
A person commits first degree murder if, acting alone or with one or more other persons commits or attempts to commit . . . kidnapping under § 13-1304, burglary under § 13-1506, 13-1507, or 13-1508 . . . robbery under § 13-1902, 13-1903, or 13-1904 . . . and in the course and in furtherance of the offense or immediate flight from the offense, the person or another person causes the death of a person.Ariz. Rev. Stat. ("A.R.S.") § 13-1105(A)(2). ¶14 One of the predicate felonies for the felony murder charge in this case is first-degree burglary. As relevant here, a person commits first-degree burglary if "such person or an accomplice violates the provisions of section . . . 13-1507 and knowingly possesses . . . a deadly weapon or a dangerous instrument in the course of committing any theft or any felony." A.R.S. § 13-1508 (2012). Section 13-1507 provides that "[a] person commits burglary in the second degree by entering or remaining unlawfully in or on a residential structure with the intent to commit any theft or any felony therein." A.R.S. § 13-1507 (2012) (emphasis added). What elevates a second-degree burglary to first-degree burglary is the knowing possession of a deadly weapon or a dangerous instrument. ¶15 Noack argues the State failed to prove an essential element of the predicate felony of burglary because the evidence that he and Carlos were "invited" inside the apartment negates the "entering unlawfully" element of that offense. However, the burglary statute provides that a person can commit burglary by "remaining" unlawfully in a residential structure. Although a person may "enter[] another's premises lawfully and with consent, his presence can become unauthorized, unlicensed, or unprivileged if he remains there with the intent to commit a felony." State v. Altamirano, 166 Ariz. 432, 435, 803 P.2d 425, 428 (App. 1990) (citations omitted) (emphasis added). When a person's intent in remaining on the property is for the purpose of committing a theft or some other felony therein, that individual is "no more welcome than one who initially entered with such intent." Id. ¶16 Even if Noack initially entered the apartment without the intent to commit the theft of the marijuana, he clearly formed that intent while he and Carlos were inside the apartment. This is evidenced by the testimony that he pulled a gun on Leo while Carlos simultaneously detained Armando, that Noack stated "you guys are being robbed," and that he and Carlos then left with both the marijuana and the money they had brought with them. This evidence is more than sufficient to support a jury finding that Noack and his accomplice committed the predicate felony of first degree burglary. Therefore, the trial court properly denied Noack's Rule 20 motion for a judgment of acquittal.
We cite the current version of the applicable statute because no revisions material to this decision have since occurred.
The statute provides that "[a] person commits theft, if without lawful authority, the person knowingly controls property of another with the intent to deprive the other person of such property." A.R.S. § 13-1802 (2012).
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CONCLUSION
¶17 For the foregoing reasons, we affirm Noack's convictions and sentences.
_________________________
MICHAEL J. BROWN, Judge
CONCURRING: _________________________
SAMUEL A. THUMMA, Presiding Judge
_________________________
DIANE M. JOHNSEN, Judge