Opinion
No. 2 CA-CR 2013-0189
07-31-2014
THE STATE OF ARIZONA, Appellee, v. KATHARINE MCMURRAY, Appellant.
counsel Thomas C. Horne, Arizona Attorney General Joseph T. Maziarz, Section Chief Counsel, Phoenix By Jonathan Bass, Assistant Attorney General, Tucson Counsel for Appellee Manch Law Firm PLLC, Tucson By Eric S. Manch Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.
Appeal from the Superior Court in Pima County
No. CR20121842002
The Honorable Howard Hantman, Judge
AFFIRMED
COUNSEL Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Jonathan Bass, Assistant Attorney General, Tucson
Counsel for Appellee
Manch Law Firm PLLC, Tucson
By Eric S. Manch
Counsel for Appellant
MEMORANDUM DECISION
Chief Judge Eckerstrom authored the decision of the Court, in which Judge Espinosa and Judge Kelly concurred. ECKERSTROM, Chief Judge:
¶1 Following a jury trial, appellant Katharine McMurray was convicted of a fraudulent scheme or artifice, A.R.S. § 13-2310(A), and first-degree burglary of a nonresidential structure, A.R.S. § 13-1508(B), for her role in a feigned armed robbery at the convenience store where she worked. The trial court suspended the imposition of sentence and placed her on concurrent, four-year terms of probation. On appeal, she challenges the court's rulings denying her motion for judgment of acquittal, her motion to sever, and her request for disclosure of jurors' contact information. We affirm for the reasons that follow.
Factual and Procedural Background
¶2 We view the evidence in the light most favorable to upholding the verdicts. See State v. Fimbres, 222 Ariz. 293, ¶ 2, 213 P.3d 1020, 1023 (App. 2009). In April 2012, McMurray was working alone as an overnight clerk at a convenience store in Pima County. She knew that the store was under video surveillance and that its robbery-prevention policy allowed no more than $35 to be kept in the cash register.
¶3 The store's surveillance video from the night of the offenses showed McMurray and her boyfriend, the codefendant Robert Andrews, talking together. McMurray filled an automatic change dispenser that could hold $147 in coins. After Andrews left the store, McMurray put a sign on the door and locked it. About eight minutes later, she unlocked the door. Andrews entered the minute thereafter. He brandished a knife and partially covered his face with a cloth. McMurray gave him $69 in cash from the register and the contents of the change dispenser, which together totaled $212.
¶4 After Andrews left, McMurray called her store manager to report a robbery. The manager instructed McMurray to call the police. The surveillance video showed the alleged robber to be an African American male, like Andrews, and McMurray reported to law enforcement officials that the robber had appeared to be either African American or Cuban. She further reported that the robber had not sounded African American, but rather Cuban. She denied knowing the suspect and specifically denied it was Andrews. When an officer went to McMurray's home several hours later, she said Andrews was not present. Under continued questioning, however, she admitted he was with her inside the residence.
Judgment of Acquittal
¶5 McMurray first contends the trial court erred by denying her motion for judgment of acquittal under Rule 20, Ariz. R. Crim. P. A Rule 20 motion tests the sufficiency of the evidence, State v. Neal, 143 Ariz. 93, 98, 692 P.2d 272, 277 (1984), and requires a court to assess "whether the record contains 'substantial evidence to warrant a conviction.'" State v. West, 226 Ariz. 559, ¶ 14, 250 P.3d 1188, 1191 (2011), 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). When making this determination, we do not reweigh the evidence; its sufficiency is a question of law we review de novo. Id. ¶¶ 15-16. We will reverse a conviction for insufficient evidence pursuant to Rule 20 only if "there is a complete absence of probative facts to support a conviction." Mathers, 165 Ariz. at 66, 796 P.2d at 868.
Fraudulent Scheme or Artifice
¶6 A person commits an offense under § 13-2310(A) if, "pursuant to a scheme or artifice to defraud, [she] knowingly obtains any benefit by means of false or fraudulent pretenses, representations, promises or material omissions." An employee's theft violates this statute only if she "obtain[s] some benefit 'by means of' a specific false picture or pretense." State v. Johnson, 179 Ariz. 375, 379, 880 P.2d 132, 136 (1994), quoting State v. Haas, 138 Ariz. 413, 423, 675 P.2d 673, 683 (1983).
¶7 McMurray contends her false statements made after the theft do not support the false pretenses element of the charged offense, because "the fraud statute requires a false pretense to be the means by which the benefit is obtained, not the means to avoid detection." Id. at 380, 880 P.2d at 137. This argument, however, overlooks that McMurray did not steal her employer's property herself or simply make false statements after the crime. Rather, she "obtained" this property by transferring it to Andrews, creating the "specific false picture" of an armed robbery as the means to achieve this end. Id. at 379, 880 P.2d at 136. Her conduct therefore plainly violated the statute.
¶8 Although McMurray further suggests the evidence showed that only Andrews had benefited from the crime, circumstantial evidence allowed the jury to find otherwise. See Fimbres, 222 Ariz. 293, ¶ 4, 213 P.3d at 1024. The jury reasonably could conclude that the defendants' fraudulent scheme or artifice was carried out for mutual benefit, given the couple's romantic relationship, their presence together after the theft, and their joint orchestration of the simulated robbery. If reasonable people may fairly disagree about whether the evidence establishes a fact at issue, such evidence is substantial and the resulting conviction must be upheld. See State v. Rodriguez, 192 Ariz. 58, ¶ 10, 961 P.2d 1006, 1008 (1998).
Burglary
¶9 McMurray also challenges her burglary conviction on the ground that she was lawfully within the store where she worked. To sustain a burglary conviction, the state must prove a person or an accomplice "enter[ed] or remain[ed] unlawfully" on the victim's premises with the intent to commit a theft or felony therein. A.R.S. § 13-1506(A)(1); see § 13-1508(A).
¶10 McMurray overlooks that the jury was instructed on a theory of accomplice liability with respect to the burglary charge. See A.R.S. §§ 13-301, 13-303; see also State v. Jobe, 157 Ariz. 328, 331-32, 757 P.2d 604, 607-08 (App. 1988) (noting accomplice and principal held equally liable). As the state points out, the evidence showed McMurray facilitated a theft in the store by (1) loading coins into a change dispenser before the crime; (2) locking the store's door in anticipation of the staged robbery so as to ensure no one else was inside, then unlocking it the minute before Andrews entered; and (3) delaying her report to law enforcement in order to provide him more time to vacate the premises and avoid detection. Under the circumstances, the jury could have found McMurray guilty of first-degree burglary as the accomplice of Andrews, who had entered or remained unlawfully in the store to commit a theft while armed with a deadly weapon or dangerous instrument. See § 13-1508(A). In sum, there was sufficient evidence to support both convictions, and the trial court correctly denied the Rule 20 motion.
Severance
¶11 McMurray next argues the trial court erred in denying her motion to sever her trial from that of Andrews. The state correctly notes that by failing to renew her motion to sever, McMurray has "waived" the issue below. Ariz. R. Crim. P. 13.4(c); accord State v. Flythe, 219 Ariz. 117, ¶¶ 5, 10, 193 P.3d 811, 813, 814 (App. 2008). Consequently, to be entitled to relief, she carries the burden of proving fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, ¶¶ 19-20, 115 P.3d 601, 607 (2005). The state also correctly observes that McMurray has not alleged the error was fundamental, thereby failing to sustain her burden on appeal. See State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17, 185 P.3d 135, 140 (App. 2008). Her decision not to file a reply brief justifies the summary disposition of this issue, see State v. Cota, 234 Ariz. 180, ¶ 3, 319 P.3d 242, 244 (App. 2014), as we find her underlying argument to be unpersuasive. See State v. Fernandez, 216 Ariz. 545, ¶ 32, 169 P.3d 641, 650 (App. 2007) ("Although we do not search the record for fundamental error, we will not ignore it when we find it.").
Jury Information
¶12 Last, McMurray contends the trial court erred by denying her post-verdict motion to disclose the jurors' contact information pursuant to Rule 18.3, Ariz. R. Crim. P. The rule provides, in relevant part: "The court shall keep all jurors' home and business telephone numbers and addresses confidential unless good cause is shown to the court which would require such disclosure." Id.
Although McMurray also cited Rule 24.1(c)(3), Ariz. R. Crim. P., the motion was not one for a new trial, and McMurray does not argue otherwise on appeal.
¶13 In her motion, McMurray requested that the trial court provide this information so a defense investigator could contact jurors and "explore the possibility of juror misconduct as being a basis for a new trial." The motion alleged that the jury foreman, S.H., "may know the Defendants and/or family of . . . McMurray." Specifically, McMurray asserted the foreman worked for the same "large call center operation" in the same building and on the same floor where codefendant Andrews had worked around the time of the offenses. She further asserted that her mother, who had testified as a defense witness, worked for the same employer in the same building, and was "well-known at the company."
¶14 We find no error or abuse of discretion in the trial court's denial of the motion, for several reasons. See State v. Banda, 232 Ariz. 582, n.2, 307 P.3d 1009, 1012 n.2 (App. 2013) (appellate court may affirm for any reason supported by record). Although McMurray suggested below that the motion was based on new information, she now acknowledges that the foreman had revealed his employer in a jury questionnaire provided to the parties. His potential acquaintance with, and connection to, the codefendant and the defense witness were therefore known at the time of voir dire. McMurray's failure to make further inquiries on this topic in a timely fashion thus waived the issue below. Cf. State v. Diaz, 142 Ariz. 136, 137, 688 P.2d 1028, 1029 (App. 1984) (finding defendant who had passed jury panel waived objection to court's failure to ask whether prospective jurors knew him), aff'd, 142 Ariz. 119, 688 P.2d 1101 (1984).
¶15 Indeed, McMurray's choice not to make such inquiries or exercise a peremptory strike on this juror could be viewed as a reasoned, strategic decision on her part. When a juror has extrinsic information or engages in improper conduct in a case, a party who chooses to gamble on the effect of that juror may not later seek a new trial if the effect appears adverse. See N. Ariz. Supply Co. v. Stinson, 73 Ariz. 109, 114, 238 P.2d 937, 940 (1951). "Such laxness should not be rewarded," id., and it certainly could preclude a finding of "good cause" here. Ariz. R. Crim. P. 18.3.
¶16 Moreover, McMurray failed to articulate any alleged impropriety or misconduct that would warrant the involvement of the trial court. As noted above, the foreman had disclosed his employer before trial. When asked at voir dire, he indicated he did not know the defendants. The defendants similarly denied knowing him. While McMurray alleged that her mother and a family friend who had attended the trial ultimately recognized the foreman, this allegation did not establish that the recognition was mutual, nor did it otherwise indicate any lack of candor on his part or an inability to serve fairly and impartially.
¶17 At the hearing on her motion, McMurray acknowledged the foreman's employment did not provide grounds for disqualification, partly because the company's building "is a large place." She further admitted, "I'd be speculating to say it became an issue." Accordingly, the trial court did not err by finding no good cause for releasing the jurors' confidential contact information or for summoning the foreman to court for further examination, as McMurray had requested as an alternative measure. Under any standard of review, an appellant first must show error to be entitled to relief. State v. Diaz, 223 Ariz. 358, ¶ 11, 224 P.3d 174, 176 (2010). McMurray has failed to do so here.
Disposition
¶18 For the foregoing reasons, we affirm McMurray's convictions and terms of probation.