                                                                          FILED BY CLERK
                               IN THE COURT OF APPEALS                       APR 30 2007
                                   STATE OF ARIZONA
                                                                              COURT OF APPEALS
                                     DIVISION TWO                               DIVISION TWO




THE STATE OF ARIZONA,                          )
                                               )           2 CA-CR 2005-0219
                                  Appellee,    )           DEPARTMENT B
                                               )
                       v.                      )           OPINION
                                               )
CYNTHIA D. JOHNSON,                            )
                                               )
                                  Appellant.   )
                                               )


            APPEAL FROM THE SUPERIOR COURT OF PINAL COUNTY

                                  Cause No. CR200400309

                            Honorable Gilberto V. Figueroa, Judge

                      AFFIRMED IN PART AND REVERSED IN PART


Terry Goddard, Arizona Attorney General
 By Randall M. Howe and Joseph T. Maziarz                                          Phoenix
                                                                     Attorneys for Appellee

Harriette P. Levitt                                                                 Tucson
                                                                     Attorney for Appellant


E S P I N O S A, Judge.


¶1            Twelve jurors found appellant Cynthia Johnson guilty of first-degree felony

murder and conspiracy to commit kidnapping. At the state’s request, the trial court dismissed

a third count charging Johnson with first-degree burglary. After denying Johnson’s motion

for new trial, filed pursuant to Rule 24.1, Ariz. R. Crim. P., 17 A.R.S., the trial court
sentenced her to life in prison for the murder conviction and to a concurrent, presumptive,

10.5-year term for the conspiracy conviction. In the single issue raised on appeal, Johnson

contends there was insufficient evidence to sustain the jury’s verdict on the felony murder

charge. Because we find the evidence does not show Johnson was an accomplice to the

predicate offense charged, we must reverse her conviction for felony murder.

¶2            A conviction must be based on substantial evidence, Rule 20(a), Ariz. R.

Crim. P., 17 A.R.S., which is proof that reasonable persons could find “sufficient to support

a conclusion of a defendant’s guilt beyond a reasonable doubt.” State v. Spears, 184 Ariz.

277, 290, 908 P.2d 1062, 1075 (1996). We will not reverse a conviction for insufficient

evidence unless “there is a complete absence of probative facts to support [the jury’s]

conclusion.” State v. Mauro, 159 Ariz. 186, 206, 766 P.2d 59, 79 (1988); see also State v.

Carlisle, 198 Ariz. 203, ¶ 11, 8 P.3d 391, 394 (App. 2000). Stated differently, to warrant

reversal, “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). “In considering the sufficiency of the evidence, we evaluate the entire

record, including Appellant’s testimony.” State v. Alvarado, 178 Ariz. 539, 541, 875 P.2d

198, 200 (App. 1994).

¶3            To prove first-degree felony murder as defined in A.R.S. § 13-1105(A)(2), the

state must show that the defendant, acting either alone or with others, committed or

attempted to commit any of the specific felony offenses listed in § 13-1105(A)(2) and, “‘in

the course of and in furtherance of’ that felony, the defendant or another person caused the


                                              2
death of any person.” State v. Phillips, 202 Ariz. 427, ¶ 39, 46 P.3d 1048, 1057 (2002),

quoting § 13-1105(A)(2) (emphasis supplied in Phillips). Among the felony offenses listed

is burglary, and the indictment against Johnson alleged first-degree burglary as the specific

predicate offense. The jury was instructed that, to prove first-degree murder, the state had

to “prove that the defendant, whether as a principal or an accomplice, committed or

attempted to commit First Degree burglary and that someone was killed in the course of and

in furtherance of that offense.” First-degree burglary is defined in A.R.S. § 13-1508(A) as

follows: “A person commits burglary in the first degree if such person or an accomplice

violates the provisions of either § 13-1506 [defining third-degree burglary] 1 or 13-1507

[defining second-degree burglary]2 and knowingly possesses explosives, a deadly weapon

or a dangerous instrument in the course of committing any theft or any felony.”

                                             Facts

¶4            Viewed in the light most favorable to sustaining the verdict, see Arredondo,

155 Ariz. at 316, 746 P.2d at 486, the evidence presented at trial established that, on the night

of September 10, 2003, the murder victim, Tom Snyder, and his wife, Marilyn, were asleep

in their bedroom when they were awakened by two intruders standing near their bed. One

of the intruders instructed the couple to “[t]urn over and put [their] faces in the pillow.” Tom


       1
       Section 13-1506(A)(1), A.R.S., provides that a person commits third-degree burglary
by “[e]ntering or remaining unlawfully in or on a nonresidential structure or in a fenced
commercial or residential yard with the intent to commit any theft or any felony therein.”
       2
        Section 13-1507(A), A.R.S., provides that a person commits second-degree burglary
“by entering or remaining unlawfully in or on a residential structure with the intent to commit
any theft or any felony therein.”

                                               3
“jumped up” to get out of bed and was immediately shot. He sustained a total of four

gunshot wounds and was also stabbed multiple times as he struggled with the intruders. He

nonetheless managed to “r[u]n them out of the [bed]room” before collapsing on the living

room floor, mortally wounded. The two assailants proved to be fifteen-year-old Allen

Pacheco and his seventeen-year-old brother Johnny.

¶5            Tom and Marilyn have a son, Nathan, who in September 2003 was twenty-two

years old. Cynthia Johnson had known Nathan for years, considered him a family friend, and

had recently allowed Nathan to live with her family for a time.3 Johnson’s family consisted

of herself, her longtime boyfriend Todd, and their three children, whose ages at the time of

trial were eleven, eight, and three.

¶6            On Tuesday, September 9, the day before the murder, a distraught Johnson had

gone to Nathan’s parents’ home, awakening Tom and Marilyn at 5:00 a.m. to tell them she

believed Nathan had molested her then-nine-year-old daughter the night before. When the

alleged molestation occurred, Johnson and Todd had gone out for the night, leaving Allen

Pacheco, a friend of Nathan’s, to babysit their children.

¶7            On Wednesday night, September 10, eight people in two vehicles drove to the

home of Nathan’s parents, looking for Nathan. Johnson drove a van with three male



       3
        Nathan is apparently a troubled young man who had caused problems for his parents
since he was a teenager. He had not graduated from high school and “definitely was not
succeeding” in life. His mother described him to one of the investigating officers as “a thief,
a druggie, and a liar.” After being “kicked out” of the family home by his parents, Nathan
would sometimes stay in their enclosed back porch or in a shed in their backyard, but he was
essentially homeless.

                                              4
passengers; four other males, including Allen and Johnny Pacheco, rode together in a car.

The men believed Nathan had stolen a bicycle that belonged to one of them, and recovering

the bicycle was among the reasons for going to Nathan’s parents’ home to look for him.

Another was Johnson’s desire to avenge the molestation of her daughter. Johnson later told

officers that she had spent “probably twelve hours” unsuccessfully looking for Nathan on

Tuesday and that “[other] people were out looking for [him]” as well.

¶8            Johnson believed Nathan was again living in a shed in his parents’ backyard.

As she later told officers, the plan on Wednesday night was for the men to “go in the back

yard, look in the shed, get Nathan, . . . lure him out,” “put him in the van and . . . hold him

until we got to the house” where she and others would then “beat him up. . . . [W]e were

gonna kick his ass.”

¶9            Only one of the seven young men testified at trial. Wayne Besenhofer, one of

Johnson’s three passengers, testified that, on the way to the victims’ home, conversation in

the van had turned to Nathan’s alleged molestation of Johnson’s daughter. A “very upset,”

“very agitated and very livid” Johnson said they were “going to get this guy [and hurt him]

because he [had] hurt her daughter.” Johnson detailed the plan that called for Allen to lure

Nathan to the front of the house and for the others then “to get out and grab him and throw

him in the . . . back of the van.” According to Besenhofer, Nathan would supposedly be “out

back, in the back of the house, either in a shed or on the back porch or somewhere,” waiting

for Allen as Nathan and Allen had prearranged.




                                              5
¶10           As it happened, however, Nathan was not there. While Johnson waited in the

van, Allen signaled the other six males to assemble outside the house. At least four of the

seven were armed with some kind of weapon. After failing to find Nathan in the yard, the

shed in the backyard, or the enclosed back porch, all seven returned to the carport. There

they tried a door leading into the house and found it locked. Allen broke a window in the

door, reached in, and unlocked the door, through which all seven men then entered the home.

¶11           After the group quickly determined Nathan was not inside, Allen and Johnny

Pacheco entered the sleeping victims’ bedroom. Armed with a gun one of the other men had

brought, Allen yelled at the victims, causing Tom to jump up, and Allen “then just started

shooting.” Four of the men immediately ran from the house, and three of them got into the

waiting van. At different points, Johnson asked what had happened, where Allen was, and

“did you get [Nathan]?” After driving around the victims’ neighborhood briefly, Johnson

drove the van and her passengers back to her house.

¶12           In subsequent days, police detectives interviewed Johnson twice, the second

time after other detectives had interviewed Allen and Johnny Pacheco. Johnson was initially

dishonest but eventually admitted having driven the van to the victims’ home and having

waited in the vehicle, expecting the men to return with Nathan and “throw him in the back”

of the van.




                                            6
                                         Discussion

¶13           Johnson concedes she participated in a conspiracy to kidnap Nathan but

contends she had no role whatever in the burglary of his parents’ home. She maintains the

plan to kidnap Nathan assumed he would be found either in the shed in his parents’ backyard

or in the yard itself; thus, “[Johnson]’s conspiracy consisted of a plan to kidnap Nathan from

a totally different structure than [his parents’] home.” Because she neither planned, intended,

nor participated in the burglary of the Snyders’ home, Johnson claims the evidence was

insufficient to sustain her conviction for felony murder. The state counters that it was not

required to prove Johnson knew her accomplices would enter the victims’ home, only that

she intended they “commit any burglary on the Snyder property, and that one or more of them

was armed with a deadly weapon or dangerous instrument.”

¶14           The offense of felony murder does not require that the defendant have been

charged with and convicted of the underlying predicate felony. “The jury must simply find

that the defendant committed or attempted to commit it.” State v. Lacy, 187 Ariz. 340, 350,

929 P.2d 1288, 1298 (1996); see also State v. Eastlack, 180 Ariz. 243, 258, 883 P.2d 999,

1014 (1994). Because Johnson did not personally commit a burglary on the Snyder property,

the state correctly concedes that she was, at most, an accomplice to a burglary. As defined

in A.R.S. § 13-301, an accomplice is one

              who with the intent to promote or facilitate the commission of
              an offense:

                     1. Solicits or commands another person to commit the
              offense; or


                                              7
                    2. Aids, counsels, agrees to aid or attempts to aid
              another person in planning or committing the offense[; or]

                   3. Provides means or opportunity to another person to
              commit the offense.

The state was thus required to prove that Johnson had intentionally aided or attempted to aid

others in planning or committing first-degree burglary.4 See Lacy, 187 Ariz. at 350, 929 P.2d

at 1298.

¶15           Although Johnson has not cited them, we find three supreme court cases

dispositive of her appeal: State v. Wall, 212 Ariz. 1, 126 P.3d 148 (2006); Evanchyk v.

Stewart, 202 Ariz. 476, 47 P.3d 1114 (2002); and State v. Phillips, 202 Ariz. 427, 46 P.3d

1048 (2002). In Phillips, the court rejected the state’s argument that “a defendant [is] liable

for all acts of an accomplice as long as the defendant aided the accomplice in planning or

committing any related offense.” 202 Ariz. 427, ¶ 35, 46 P.3d at 1056. Instead, the court

held A.R.S. § 13-303(A)(3) imposes accomplice liability upon a defendant only for the

specific offenses the defendant “intended to aid or aided another in planning or committing.”

202 Ariz. 427, ¶ 37, 46 P.3d at 1057. As the court stated in Evanchyk, which it decided

contemporaneously with Phillips, a defendant cannot “be convicted of felony murder




       4
        The state notes it “could (and should)” have alleged as predicate offenses burglary
under A.R.S. §§ 13-1506, 13-1507, or 13-1508, as well as kidnapping under A.R.S.
§ 13-1304, but acknowledges that, “having chosen to allege only first degree burglary as the
predicate offense, the State was limited to that theory when the case was submitted to the
jury.” See generally State v. Sanders, 205 Ariz. 208, ¶¶ 16-21, 68 P.3d 434, 439-40 (App.
2003).

                                              8
committed by a codefendant unless [the defendant] was both an accomplice and a participant

in the underlying felony.” 202 Ariz. 476, ¶ 14, 47 P.3d at 1118.

¶16           Refining the test still further in its recent decision in Wall, the court

underscored that “reasonable foreseeability is not the test for accomplice responsibility in

Arizona.” 212 Ariz. 1, ¶ 21, 126 P.3d at 152. “[I]t is the intent of the one charged as an

accomplice, rather than the intent of the main actor, that controls the accomplice’s criminal

responsibility.” Id. ¶ 20. In short, Johnson can be held responsible for felony murder only

if Tom Snyder’s death resulted “‘in the course of and in furtherance of’” the specific burglary

she intended to facilitate or commit. Phillips, 202 Ariz. 427, ¶¶ 39, 41, 46 P.3d at 1057,

quoting § 13-1105(A)(2).

¶17           What neither party has articulated clearly on appeal is that at least two separate,

first-degree burglaries were committed on the night of September 10, 2003.5 The first

occurred when the seven men, several of whom were armed, entered the Snyders’ fenced

backyard. See State v. Bottoni, 131 Ariz. 574, 575, 643 P.2d 19, 20 (App. 1982) (“[T]he

crime of burglary is complete when entrance to the [residential yard] or structure is made

with the requisite criminal intent. Burglary does not require the successful completion of the

underlying felony.”) (citation omitted); see also State v. Taylor, 25 Ariz. App. 497, 499, 544

P.2d 714, 716 (1976) (essence of burglary is entry with requisite intent). The second



       5
        Pursuant to A.R.S. § 13-1508, what would otherwise have been a second-degree
burglary of the Snyders’ home, see A.R.S. § 13-1507, and a third-degree burglary of their
yard or shed, see A.R.S. § 13-1506, both became first-degree burglaries because some of the
men were armed with a deadly weapon or dangerous instrument.

                                               9
occurred when the men forced their way into the Snyders’ home. 6 Not only was their entry

into the house a separate and distinct burglary from their entry into the backyard and shed

but, crucially, it was the burglary “in the course . . . and . . . furtherance of [which]” the

murder of Tom Snyder occurred. § 13-1105(A)(2).

¶18           At oral argument, the state for the first time advanced the concept of a “single,

overarching” burglary offense, which it claimed was the predicate felony alleged by the

nonspecific reference to first-degree burglary in the felony murder count of the indictment.

Such a generalized offense, it asserted, broadly encompassed any of the various entries made

on the Snyder property and supplied a sufficient predicate for the felony murder charge. But

we find no statutory support for the state’s contention and therefore reject it. The burglary

statutes define no such unified or “overarching” burglary offense. Instead, they distinguish

between nonresidential structures and fenced commercial or residential yards, on the one

hand, see § 13-1506(A), and residential structures on the other, see § 13-1507(A). They

distinguish as well between armed and unarmed entries. See § 13-1508. And the felony

murder statute preserves those distinctions by referring to the included predicate offenses as

“burglary under § 13-1506, 13-1507 or 13-1508.” § 13-1105(A)(2).

¶19           It is certainly possible that Cynthia Johnson, infuriated about what she believed

Nathan had done to her nine-year-old daughter, might well have directed the seven men she

and her boyfriend had recruited to hunt everywhere for Nathan until they found him,


       6
        Whether the men committed a third discrete burglary by actually entering the shed
in the backyard or whether they determined simply by looking into it that Nathan was not
inside depends upon an unresolved factual question we need not address.

                                             10
regardless of where on the Snyders’ property he might be. Johnson might in that case have

been an accomplice to the separate burglary of the Snyder home during which Tom Snyder

was killed. But, after scouring the trial court record, we have been unable to find any

reasonable evidence to support that essential finding.

¶20           Johnson testified at trial that she had never planned with the seven men to

break into the Snyders’ house. Both Nathan and his father had told her Nathan “stayed in the

shed in the backyard, not in the house,” and Johnson claimed Allen Pacheco had prearranged

with Nathan to meet him in the backyard of the Snyder home. Nathan was to leave the gate

open for Allen and be waiting for him in the yard. According to Johnson, the men were

never supposed to enter the Snyders’ house, and she would have expressly instructed them

not to had she known they might.

¶21           Johnson’s trial testimony was consistent with her earlier statements to police

officers in a pre-arrest interview five days after the murder. Johnson had insisted then that

there had been no plan to enter the Snyders’ home and that the only plan was to lure Nathan

from the backyard or the shed out to the street and into Johnson’s van. Although she knew

Tom Snyder had guns “all over his house,” Johnson stated she had never thought to tell the

seven men that “[be]cause they weren’t supposed to be going in the house.”

¶22           The only witness called at trial who could have contradicted Johnson instead

supported her testimony. Wayne Besenhofer testified that the plan that night had called for

Nathan to be waiting outside for Allen, who was supposed to go get Nathan and bring him

out to the front of the house where the other six men would “grab him and throw him in the


                                             11
back . . . of the van.” When Allen did not find Nathan initially, he signaled the others to join

him. Besenhofer testified that, after they then failed to find Nathan in the yard, the shed, or

an enclosed porch connected to the house that Besenhofer called an “add-on,” they all

proceeded to the carport where Allen broke the window in the door through which they

gained entry to the house. Besenhofer testified he was unaware of any preexisting plan to

break into the house—in part because Nathan was supposed to be waiting outside for Allen.

Besenhofer described their entry into the Snyders’ home as having happened on the “spur of

the moment.”

¶23            At oral argument, the state maintained there was evidence showing Johnson

had knowledge of a preexisting plan to enter the Snyders’ home, pointing to a single remark

Johnson made in the second of her two recorded statements to police detectives. Johnson had

said: “I was in a blue van. And they said, ‘[Y]ou’ll see us come out the door.’” On cross-

examination at trial, she acknowledged having said “door” but explained she had meant a

“gate or a door,” impliedly referring to the entrance to the backyard.             On redirect

examination, she testified she had simply confused the two terms “because there was never

a door involved except for the shed.”

¶24            Because the state apparently believed it only needed to prove Johnson was an

accomplice to the burglary of the shed in order to establish the requisite predicate felony, the

jury was not asked to determine whether Johnson was also an accomplice to the separate

burglary of the Snyder residence. Given the marked lack of any other evidence that Johnson

intended or envisioned that anyone would enter the house in search of Nathan, we are not


                                              12
persuaded that her one isolated reference to a “door” would have carried as much weight as

the state claims or convinced the jury that Johnson had also been an accomplice to the

burglary of the home. As noted above, Wayne Besenhofer testified without contradiction

that breaking into the house had been entirely unplanned and had occurred spontaneously.

¶25           In short, although Johnson planned and intended to aid the first burglary of the

backyard and shed, there was simply no substantial evidence from which a reasonable jury

could have concluded that she knew, intended, or even expected that the seven men might

also burglarize the Snyders’ home in search of Nathan. See State v. Spears, 184 Ariz. 277,

290, 908 P.2d 1062, 1075 (1996) (conviction must be supported by substantial evidence).

The state did not argue otherwise in its brief. Believing it needed to prove only that Johnson

had been an accomplice to the burglary of the shed, the state simply did not address the lack

of evidence that she was an accomplice to the separate burglary of the house.7 Because it

was the latter burglary during which the murder occurred and there was no substantial

evidence Johnson intended to facilitate the commission of that particular offense, her

conviction for felony murder cannot stand. See Wall, 212 Ariz. 1, ¶¶ 20-21, 126 P.3d at 152;

Evanchyk, 202 Ariz. 476, ¶ 14, 47 P.3d at 118; Phillips, 202 Ariz. 427, ¶ 37, 46 P.3d at 1057.



       7
         Whether it is telling or merely coincidental, just before the court instructed the jury,
the state requested dismissal of the count in the indictment that charged Johnson with first-
degree burglary. It is true that felony murder does not require the defendant to be charged
with and convicted of the predicate felony; still, the jury “must . . . find that the defendant
committed or attempted to commit it.” State v. Lacy, 187 Ariz. 340, 350, 929 P.2d 1288,
1298 (1996). Although the reasons for the state’s decision to request dismissal are neither
evident from the record nor were they supplied at oral argument, the dismissal appears to
lend additional support to Johnson’s argument.

                                               13
¶26            At most, Johnson aided the commission of the residential burglary only after

the fact, by driving some of the participants from the scene, failing to call the police after she

learned what had happened, and lying to police officers initially about the extent of her

knowledge and involvement. Her knowing role in the second burglary thus began only after

the offense had already been committed. However, “[t]o be an accomplice, a person’s first

connection with a crime must be prior to, or during, its commission; it cannot be after the

commission of the offense.” 21 Am. Jur. 2d Criminal Law § 205 (1998). And the liability

of an accessory after the fact is clearly different from that of a principal or an accomplice.

State v. Hill, 26 Ariz. App. 37, 38, 545 P.2d 999, 1000 (1976).

¶27            Johnson was clearly an accomplice to the first burglary of the Snyders’

backyard—while intending to aid in the commission of that burglary with the goal of

kidnapping Nathan, she drove some of the perpetrators to the victims’ home, waited during

the commission of the burglary, drove several accomplices away from the scene, and helped

to conceal their participation in the crime. Because there was no similar evidence that she

intended the second burglary to occur or intended beforehand to facilitate its commission,

Johnson was at most an accessory after the fact to that offense. Had she been criminally

charged in relation to the second burglary, which she was not, the appropriate charge would

have been hindering prosecution in violation of A.R.S. §§ 13-2510, 13-2511, or 13-2512, the

statutory embodiment of the “distinct, independent,” common-law offense of being an

accessory after the fact. State v. Hughes, 189 Ariz. 62, 74, 938 P.2d 457, 469 (1997).




                                               14
                                        Disposition

¶28           The absence of any substantial evidence that Johnson was an accomplice to the

first-degree burglary of the Snyder residence requires us to reverse her conviction for felony

murder and vacate the attendant sentence of life imprisonment. Her conviction and sentence

for conspiracy to commit kidnapping are affirmed.8




                                               PHILIP G. ESPINOSA, Judge

CONCURRING:




PETER J. ECKERSTROM, Presiding Judge




J. WILLIAM BRAMMER, JR., Judge




       8
        Pursuant to A.R.S. § 13-709(B), Johnson was entitled to receive presentence
incarceration credit on both of her concurrent sentences. She remains entitled to that credit
on her conspiracy sentence.

                                             15
