State of Arizona v. Daniel Andrew Snider , 233 Ariz. 243 ( 2013 )

FILED BY CLERK
IN THE COURT OF APPEALS OCT 16 2013
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, )
)
Appellee, ) 2 CA-CR 2012-0032
) DEPARTMENT A
v. )
) OPINION
DANIEL ANDREW SNIDER, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20110022002
Honorable Jane L. Eikleberry, Judge
AFFIRMED IN PART; VACATED IN PART; REMANDED WITH INSTRUCTIONS
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz and Jonathan Bass Tucson
Attorneys for Appellee
Lori J. Lefferts, Pima County Public Defender
By Rebecca A. McLean Tucson
Attorneys for Appellant
V Á S Q U E Z, Presiding Judge.
¶1 After a jury trial, appellant Daniel Snider was convicted of nine counts of
first-degree burglary, ten counts of armed robbery, and one count each of aggravated
assault and attempted armed robbery. The trial court sentenced1 him to a 7.5-year prison
term on count two, burglary; fifteen years on count four, burglary; twenty years on count
eleven, attempted armed robbery; and, life in prison with the possibility of release after
twenty-five years on the eighteen remaining counts pursuant to A.R.S. § 13-706(A),2 with
all sentences to be served concurrently. On appeal, Snider contends there was
insufficient evidence to support two of his armed robbery convictions. He also argues the
court erred by imposing life sentences under § 13-706(A). For the reasons that follow,
we affirm the convictions but remand for resentencing.
Factual Background and Procedural History
¶2 We view the evidence in the light most favorable to sustaining the
convictions and resolve all reasonable inferences against Snider. See State v. Haight-
Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33, 34 (App. 2008). This case arises from a series of
nine bank robberies that occurred in Pima County from October 18 to December 23,
2010. All of the robberies were committed in a similar manner. Snider walked into the
bank wearing a dark hooded sweatshirt with a scarf or handkerchief covering his face.
1
The first sentencing hearing occurred on January 30, 2012. He was resentenced
on February 1, 2012, on the court’s own motion after discrepancies were found.
2
Although the sentencing minute entry states Snider was sentenced to a term of
life “with the possibility of parole after 25 years,” the transcript from the sentencing
hearing indicates the court found “the defendant is not eligible for suspension of
sentence, probation, pardon or release from confinement,” using the language found in
§ 13-706(A).
2
He displayed a handgun, handed the teller a grocery bag, and demanded all of the money
in the cash drawer. Snider was apprehended shortly after the December 23 robbery and
admitted committing the robberies during a police interview.3
¶3 Snider was charged in a single indictment with twenty-four counts of armed
robbery, attempted armed robbery, aggravated assault, and first-degree burglary, all
dangerous offenses pursuant to A.R.S. § 13-704. The state also alleged pursuant to § 13-
706(A) that Snider was “subject to life imprisonment if convicted of three armed
robberies and/or aggravated assaults and/or burglaries i[n] the first degree.” The jury
found Snider guilty of twenty-one of the counts, and the trial court sentenced him as
described above. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-
120.21(A)(1), 13-4031, and 13-4033(A)(1), (4).
Discussion
Sufficiency of the Evidence
¶4 Snider argues there was insufficient evidence to support his convictions for
the armed robberies alleged in count twenty and count twenty-two because neither victim
“testified that the robber used or threatened” her with a weapon.4 The sufficiency of the
3
Snider admitted to committing all the robberies except the one on October 29.
However, after being shown a picture of the October 29 robbery, Snider stated that “it
looked like him” and “may have been him” but that “he couldn’t remember due to being
on cocaine.”
4
The state asserts that Snider failed to move the trial court for a judgment of
acquittal “on this ground” pursuant to Rule 20, Ariz. R. Crim. P. The record confirms
that the trial court denied Snider’s Rule 20 motion generally challenging the sufficiency
of the evidence. However, the state acknowledges that we review de novo the sufficiency
of evidence to support a conviction. State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d
3
evidence is a question of law we review de novo. State v. West, 226 Ariz. 559, ¶ 15, 250
P.3d 1188, 1191 (2011). We will reverse only if no substantial evidence supports the
convictions. State v. Fimbres, 222 Ariz. 293, ¶ 4, 213 P.3d 1020, 1024 (App. 2009).
“Substantial evidence is proof that ‘reasonable persons could accept as adequate . . . to
support a conclusion of defendant’s guilt beyond a reasonable doubt.’” State v. Bearup,
221 Ariz. 163, ¶ 16, 211 P.3d 684, 688 (2009), quoting State v. Jones, 125 Ariz. 417,
419, 610 P.2d 51, 53 (1980) (alteration in Bearup). Evidence sufficient to support a
conviction can be direct or circumstantial. State v. Pena, 209 Ariz. 503, ¶ 7, 104 P.3d
873, 875 (App. 2005).
¶5 A defendant commits armed robbery “if in the course of taking any
property of another from his person or immediate presence and against his will, [the
defendant] threatens or uses force against any person with intent either to coerce
surrender of property or to prevent resistance to [the defendant] taking or retaining
property,” A.R.S. § 13-1902(A), and the defendant is “armed with a deadly weapon or a
simulated deadly weapon,” A.R.S. § 13-1904(A)(1).
¶6 The evidence for the armed robbery alleged in count twenty established that
on December 17, A.L., an employee at the Canyon Community Bank saw a man dressed
in a black hooded sweatshirt with a handkerchief over his face enter the bank carrying a
handgun. He placed the gun in his waistband, approached a teller, the victim in count
1188, 1191 (2011). And, “[a] conviction based on insufficient evidence constitutes
fundamental error,” which does not require an objection at trial to preserve the issue.
State v. Zinsmeyer, 222 Ariz. 612, ¶ 27, 218 P.3d 1069, 1080 (App. 2009), overruled on
other grounds by State v. Bonfiglio, 231 Ariz. 371, 295 P.3d 948 (2013).
4
twenty, K.M., and demanded money. K.M. testified that Snider had stated “he wouldn’t
hurt [her] as long as [she] did what he told [her] to do.”
¶7 As to count twenty-two, the evidence similarly established that on
December 23, Snider entered the Chase Bank shortly before closing, wearing a black
hooded sweatshirt, sunglasses, and a scarf covering the lower part of his face. C.A.
testified that Snider had first approached her teller window and said he wanted all of the
money from her cash drawer.5 As C.A. was preparing to get money from an automated
cash dispenser, K.S., the victim in count twenty-two, “walk[ed] around the corner from
the back.” Both tellers then dispensed the money and handed it to Snider. When asked if
Snider had a weapon, C.A. stated: “Yes. . . . [H]e raised his hoodie . . . and took the gun
out and showed it to us.” K.S. testified she had not seen Snider lift up his shirt because
she “was really nervous” and was focused on “grabbing the money[ and] putting it in the
bag.” A Marana police officer confronted Snider when he walked out of the bank
holding a gun. The officer yelled “drop it” as Snider raised the gun, and the officer “fired
several rounds at him.” Snider “fled [on foot] into the desert area to the north of the
bank” and was apprehended a short time later as he was lying injured under a tree.
During a subsequent interview with a police detective, Snider admitted committing the
robberies, including the ones alleged in counts twenty and twenty-two.
¶8 On appeal, Snider contends his convictions on counts twenty and twenty-
two must be reversed because neither victim “testified that the robber used or threatened
5
C.A. is the victim of the armed robbery alleged in count twenty-three. Snider
does not challenge that conviction on appeal.
5
them with a deadly weapon.” However, § 13-1904(A)(1) does not require the use or
threatened use of the weapon, only that a defendant is “armed with a deadly weapon”
during the commission of the crime. See State v. Garza Rodriguez, 164 Ariz. 107, 111,
791 P.2d 633, 637 (1990) (“The weapon . . . need not be displayed by the accused nor
seen by the victim to satisfy . . . the armed robbery statute.”). There was ample evidence,
as noted above, that Snider possessed a handgun during the armed robberies alleged in
counts twenty and twenty-two.
¶9 And, to the extent Snider argues the use or threatened use of force must be
directed at the victim, we reject this argument as well. 6 A threat “against any person”
during the commission of robbery is sufficient to support a conviction. A.R.S. § 13-
1902(A); see also State v. McGuire, 131 Ariz. 93, 96, 638 P.2d 1339, 1342 (1981).
“‘Threat’ means a verbal or physical menace of imminent physical injury to a person,”
A.R.S. § 13-1901(4), and “‘[f]orce’ means any physical act directed against a person as a
means of gaining control of property,” A.R.S. § 13-1901(1).
¶10 The state presented substantial evidence from which the jury could infer
that Snider had used or threatened to use force during the commission of the offenses
alleged in counts twenty and twenty-two. As noted above, during both armed robberies,
he displayed a handgun, wore a hooded sweatshirt with a scarf or handkerchief over his
face, and demanded money from the victims. K.M. testified she had been “[t]errified”
6
For the first time in his reply brief, Snider argues his armed robbery conviction on
count twenty-two must be reduced to theft because the evidence was “insufficient to
show that force or threatened force was used to obtain the money.” He has waived this
argument by failing to raise it in his opening brief, and we do not consider it further. See
State v. Larson, 222 Ariz. 341, ¶ 23, 214 P.3d 429, 434 (App. 2009).
6
when Snider walked into the bank and Snider told her that he would not hurt her if she
cooperated. K.S. similarly testified that she had been “scared” during that encounter. We
therefore conclude the state presented sufficient evidence to support the armed robbery
convictions in counts twenty and twenty-two. See State v. Stevens, 184 Ariz. 411, 413,
909 P.2d 478, 480 (App. 1995) (even absent overt threat, jury reasonably could conclude
defendant’s fear-invoking behavior was directed at coercing surrender of property); State
v. Yarbrough, 131 Ariz. 70, 73, 638 P.2d 737, 740 (App. 1981) (threat established where
defendant entered store wearing stocking over his head, “went behind the counter,
squatted down, and with a bag in his right hand demanded that the victim put all the
money in the bag”).
¶11 Snider also argues for the first time in his reply brief that the allegations of
dangerousness for counts twenty and twenty-two must be dismissed “[b]ecause the
victim[s] did not see a gun, and a gun was not discharged, used, or threateningly
exhibited.” Snider has waived this argument by not raising it in his opening brief. See
State v. Larson, 222 Ariz. 341, ¶ 23, 214 P.3d 429, 434 (App. 2009). And, in any event,
it is without merit. A dangerous offense involves “the discharge, use or threatening
exhibition of a deadly weapon.” A.R.S. § 13-105(13). Although the victims here did not
see a firearm, other witnesses testified that Snider had displayed a handgun before
demanding money during the commission of these robberies. See State v. Bice, 127 Ariz.
312, 315, 620 P.2d 227, 230 (App. 1980) (affirming jury verdict finding assaults of
dangerous nature even though gun not on defendant’s person, but on dashboard in
holster, and victim did not actually see weapon). This was sufficient evidence of Snider’s
7
“use or threatening exhibition of a deadly weapon” while committing the offenses.
A.R.S. § 13-105(13). A threat can “be expressed by words, gestures, or actions,” State v.
Flynt, 199 Ariz. 92, ¶ 6, 13 P.3d 1209, 1211 (App. 2000), and “[n]o precise words are
necessary,” Bush v. State, 19 Ariz. 195, 200, 168 P. 508, 510 (1917).
Imposition of Life Sentences
¶12 Snider next argues the life terms of imprisonment, imposed by the trial
court on counts six through ten and counts twelve through twenty-four, constitute illegal
sentences under §§ 13-704(F) and 13-706(A). Snider did not object to his sentences
below and, therefore, has forfeited the right to relief for all but fundamental, prejudicial
error. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005).
However, “[i]mposition of an illegal sentence constitutes fundamental error.” State v.
Thues, 203 Ariz. 339, ¶ 4, 54 P.3d 368, 369 (App. 2002).
¶13 We review issues of statutory interpretation de novo. State v. Christian,
205 Ariz. 64, ¶ 6, 66 P.3d 1241, 1243 (2003). Here, the state alleged that Snider is
“subject to life imprisonment if convicted of three armed robberies[,] . . . aggravated
assaults[,] . . . or burglaries i[n] the first degree” pursuant to § 13-706(A). See A.R.S.
§ 13-706(F) (defining crimes warranting enhancement as “serious offenses”). But as
Snider correctly points out, § 13-706(A) applies only if the defendant “previously [has]
been convicted of two or more serious offenses.” “If offenses are consolidated for trial,
the conviction on the prior offense cannot precede the conviction for the subsequent
offense.” State v. Thompson, 200 Ariz. 439, ¶ 9, 27 P.3d 796, 798 (2001). The state
8
concedes the error of its original argument to the trial court that life imprisonment was
mandatory.
¶14 Because Snider had no prior convictions, the life sentences imposed under
§ 13-706(A) constitute fundamental, prejudicial error and must be vacated. See State v.
Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650-51 (App. 2007). Snider should have
been sentenced pursuant to § 13-704(F), which provides the proper sentencing scheme
for “dangerous offenses . . . that were not committed on the same occasion but that are
consolidated for trial purposes.”
Criminal Restitution Order
¶15 Although Snider has not raised the issue on appeal, we also find
fundamental error in the sentencing minute entry, which states “all fines, fees and
assessments are reduced to a Criminal Restitution Order [CRO], with no interest,
penalties or collection fees to accrue while the defendant is in the Department of
Corrections.” See Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d at 650-51. “[T]he
imposition of a CRO before the defendant’s probation or sentence has expired
‘constitutes an illegal sentence, which is necessarily fundamental, reversible error.’”
State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v.
Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009). This is so even
when, as here, the trial court delayed the accrual of interest. Nothing in A.R.S. § 13-805,
which governs the imposition of CROs, “permits a court to delay or alter the accrual of
interest when a CRO is ‘recorded and enforced as any civil judgment’ pursuant to § 13-
805(C).” Lopez, 231 Ariz. 561, ¶ 5, 298 P.3d at 910.
9
Disposition
¶16 We affirm Snider’s convictions, vacate the life sentences under counts six
through ten and twelve through twenty-four, vacate the CRO, and remand to the trial
court for resentencing in accordance with this decision.
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge
CONCURRING:
/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge
/s/ Michael Miller
MICHAEL MILLER, Judge
10