                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                      ARLANDIS WESLEY, Appellant.

                             No. 1 CA-CR 17-0792
                               FILED 1-31-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2017-001601-002
                The Honorable Michael W. Kemp, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

The Stavris Law Firm PLLC, Scottsdale
By Christopher Stavris
Counsel for Appellant
                             STATE v. WESLEY
                            Decision of the Court



                      MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Jennifer B. Campbell joined.


H O W E, Judge:

¶1          Arlandis Wesley appeals his convictions and sentences for
conspiracy, burglary, kidnapping, armed robbery, and misconduct
involving weapons. For the following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2             We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509 ¶ 93 (2013). In May 2014, D.D. and
his friend, J.S., rented a home in Glendale, Arizona. D.D.’s girlfriend L.S.
and their one-year-old son A.D. lived there also. J.S. moved his large gun
safe into the home’s garage. D.D. heard from a neighbor about a theft in the
area and installed an alarm system and surveillance cameras.

¶3            On the night of May 6, L.S. went out to dinner and a movie
with her sister, C.S., and C.S.’s daughter, M.S. D.D. went to sleep with A.D.
in J.S.’s bedroom so that L.S., C.S., and M.S. could sleep in the master
bedroom when they arrived home. L.S., C.S., and M.S. arrived home around
1:00 a.m. on May 7, and L.S. activated the alarm system before they went to
sleep in the master bedroom.

¶4            Around 6:30 a.m., a red Toyota Camry parked in front of
D.D.’s house, and Wesley, Arthur Meeds, and Antonio Yanez exited the car
and walked toward the house. The three men met up with a fourth man
armed with a gun, Eric Boozer, and they entered the home through an
Arcadia door.

¶5             D.D. was awakened by a “burning” and “stinging” sensation
to his head. He saw a person wearing “pantyhose” over his face and felt
Meeds putting pressure on his back. In a “deep, raspy voice,” Meeds told
D.D., “Get up . . . I’m going to kill you. I want the money. I want the power.
I got three of my partners in here with me. We’re going to get it.” At that
point, D.D. “felt a gun put to the back of [his] head,” and A.D. woke up
crying. Knowing that the door to the garage was alarmed, D.D. told Meeds



                                      2
                             STATE v. WESLEY
                            Decision of the Court

that he had money in the garage and to follow him, intending to set off the
alarm and alert the police.

¶6            As Meeds and Boozer walked D.D. down the hall, D.D. “saw
a couple more people” in the master bedroom. He also noticed that the
hallway closet had been “torn apart,” items had been scattered “all over the
place,” and the entertainment system and television had been taken off the
wall. Further, he noticed “a little hole” near the lock on a window. Around
6:40 a.m., D.D. opened the door to the garage and entered with Meeds
pointing a gun at him. As soon as they entered the garage, the alarm
activated and initially made a beeping sound. D.D. knew that if he did not
deactivate the alarm within ten seconds that it would create a “crazy,
ridiculous noise” and also contact the police. After the ten seconds passed,
a “siren noise” came on. Meeds made D.D. turn the alarm off and then told
D.D. to open the safe in the garage.

¶7             Although the safe belonged to J.S., D.D. had previously seen
J.S. open it. He thought he knew the combination but was not able to open
it. After D.D. failed to open the safe, Boozer said, “Maybe his son will help
him open it. If not, we’ll cut his fingers off.” Meeds told Boozer to get A.D.
and pointed the gun at D.D.’s head and said, “This is your last chance . . . If
you don’t open this [] safe, I’m going to blow your head off.” Boozer then
returned to the garage with A.D., and the men laid D.D. on the floor while
Boozer tried to open the safe. Wesley entered the garage and informed
Meeds that D.D. had a safe in his bedroom. As Meeds started to take D.D.
to the bedroom, Wesley attempted to open the safe in the garage.

¶8            During this time, Yanez woke up L.S. and C.S. by stating,
“Wake up. Wake up. We are the police.” L.S. attempted to get up to retrieve
A.D., but Yanez slammed her down on the bed and said, “If you get up, we
will shoot you.” L.S. and C.S.’s hands were zip-tied behind their backs and
then laid face down on the bed. M.S. remained asleep during these acts.

¶9             After reaching the bedroom, Meeds told D.D. to open the safe
in the closet. At this point, L.S. and C.S. saw that D.D. had “blood gushing
on the side of his face.” D.D. noticed that a wire was sticking out of the safe,
and his attempts to open it were unsuccessful. Meeds then told D.D., “You
better stop [mess]ing around and hurry up.” During this exchange, Meeds
had lifted his mask above his face, and D.D. saw his face. After further
unsuccessful attempts to open the safe, Meeds took D.D. back to J.S.’s
bedroom, laid him down on the bed, zip-tied his hands and feet, placed a
mirror on top of D.D., and zip-tied D.D. to the mirror. Meeds told D.D.,
“You know if we don’t find nothing in here . . . I’m going to kill you. I’m


                                       3
                            STATE v. WESLEY
                           Decision of the Court

going to kill you.” Meeds also stated, “If we don’t find nothing, we are
going to take their I.D.’s and we are going to find and look for them and
come back.” Then one of the men took L.S.’s passport out of her purse. D.D.
overheard the men talking about using his Cadillac Escalade in the
driveway to take one of the safes.

¶10           Officer Joseph Pinda responded to the alarm call, and he
arrived at the home around 7:00 a.m. He noticed D.D.’s Escalade parked in
front of the house with the engine running, and he pulled up next to the
driver-side window. The driver-side window lowered, and Officer Pinda
saw a black male who appeared nervous. Officer Pinda asked the man what
was going on, and the man replied, “I live here.” Then Officer Pinda asked
for the house’s address, and the man replied, “[C]’mon man . . . I only lived
here for a month.” The man got out of the Escalade, left the car running,
and returned to the house through the front door. At that point, Officer
Pinda called for backup and waited.

¶11           D.D. heard Boozer inform his accomplices that the police
were outside. D.D. then asked Meeds to let him go so that he could tell the
police that everything was fine in the house. Meeds removed D.D.’s zip ties
and attempted to clean the blood from D.D.’s head. Meeds placed a robe
over D.D. and told him to tell the police that everything was fine in the
house. Before D.D. went outside, the men noticed that D.D.’s feet were
covered in blood. After cleaning D.D.’s feet, Meeds said, “If you don’t want
nothing to happen to your [] family, you better get out there, tell them
everything’s fine.”

¶12            Around 7:10 a.m., D.D. went out the front door and walked
toward Officer Pinda, who noticed that D.D.’s head was bleeding. D.D. told
Officer Pinda that four men were in his home doing an “invasion.” During
this time, L.S. “heard silence,” got out of the bed, looked down the hallway,
and saw that the area was “clear.” While C.S. remained in the master
bedroom with A.D. and M.S., L.S. went into the next room and exited
through the room’s window with her hands still zip-tied.

¶13           After exiting, L.S. saw Wesley standing behind the gate on the
west side of the house. Wesley saw L.S., turned back, looked over the gate,
and then walked toward the Camry. Officer Pinda ordered Wesley to stop.
Wesley turned to Officer Pinda and stated, “I don’t know what’s going on,”
got into the Camry, and drove off. L.S. followed Wesley out of the gate and
told Officer Pinda to stop Wesley because he was one of the home invaders.
Officer Pinda informed other officers to pursue the Camry, and they did so.




                                     4
                             STATE v. WESLEY
                            Decision of the Court

A SWAT team arrived and entered the house, saw no other suspects, and
brought out C.S., A.D., and M.S.

¶14            Police officers pursued Wesley, who drove recklessly through
stop signs and red lights. He also drove directly at an officer before driving
on the sidewalk to get around the officer. The officers lost track of Wesley.
Around this time, officers had caught Meeds and Yanez who had fled on
foot, but neither person was armed when arrested. Meeds had two of D.D.’s
watches in his possession, and L.S.’s passport was found near a dumpster
that Meeds had passed while fleeing.

¶15           A few hours later, a homeowner along Wesley’s escape route
found a gun in his front yard and called the police. Officers retrieved the
gun, which had blood on it. The gun was loaded, had a bullet in the
chamber, and the hammer was cocked. A detective learned that Wesley was
the registered owner of the red Toyota Camry. One of D.D.’s neighbors had
previously seen that car, or a similar car, driving around the neighborhood
and thought that the previous car’s occupants were “casing” D.D.’s house.
The police located and arrested Wesley twelve days after the home
invasion.

¶16           In March 2017, the State indicted Wesley and Meeds, his
co-defendant, with (1) one count of conspiracy to commit armed robbery,
aggravated assault, first-degree burglary, kidnapping, misconduct
involving weapons, and assisting a criminal street gang, a class 2 felony;
(2) one count of first-degree burglary, a class 2 felony; (3) three counts of
kidnapping, class 2 dangerous felonies; (4) two counts of kidnapping, class
2 dangerous felonies and dangerous crimes against children (“DCAC”); (5)
three counts of armed robbery, class 2 dangerous felonies; (6) one count of
misconduct involving weapons, a class 4 dangerous felony; (7) one count of
assisting a criminal street gang, a class 3 felony; and (8) one count of
unlawful flight from a law enforcement vehicle, a class 5 felony. Before trial,
the trial court dismissed the assisting a criminal street gang charge. The
State then submitted an amended indictment that deleted the street gang
charge and agreed that the misconduct involving weapons charge should
be severed from the other counts.

¶17           Wesley and Meeds were tried by a jury, and after the State
presented its evidence and rested, Wesley moved for judgment of acquittal,
which the trial court denied. The jury subsequently convicted Wesley and
Meeds of conspiracy to commit first-degree burglary; first-degree burglary;
aggravated assault; kidnapping D.D.; kidnapping L.S.; kidnapping C.S.;
kidnapping A.D., who they found was under 15 years old; armed robbery


                                      5
                             STATE v. WESLEY
                            Decision of the Court

of D.D.; armed robbery of L.S.; and attempted armed robbery of C.S. They
were found not guilty for kidnapping M.S. Wesley was also found guilty
for unlawful flight from a law enforcement vehicle. Thereafter, the court
addressed Meeds and Wesley’s misconduct involving weapons charges.
The State provided evidence that Meeds and Wesley were convicted felons,
and that nothing showed that their possession rights had been restored. The
jury found both men guilty of misconduct involving weapons. The jury also
found numerous aggravating circumstances for both men.

¶18           The court sentenced Wesley to concurrent terms of 15.75
years’ imprisonment each for his convictions for conspiracy to commit
first-degree burglary; first-degree burglary; kidnappings of L.S., C.S., and
D.D.; and armed robberies of D.D. and L.S. The court also sentenced him to
concurrent terms of 11.25 years’ imprisonment for his conviction for
attempted armed robbery of C.S. and 10 years’ imprisonment for his
conviction for misconduct involving weapons. The court sentenced him to
a consecutive term of 13 years’ imprisonment for his conviction for
kidnapping A.D. and a consecutive term of 4 years’ imprisonment for his
conviction for unlawfully fleeing from a law enforcement vehicle.

                               DISCUSSION

¶19            Wesley agrees that the State presented sufficient evidence to
convict him of unlawful flight from a law enforcement vehicle, but
nevertheless maintains that the State did not present sufficient evidence on
the remaining charges to withstand his motion for judgment of acquittal
under Arizona Rule of Criminal Procedure 20. We review de novo a trial
court’s ruling on a Rule 20 motion. State v. West, 226 Ariz. 559, 562 ¶ 15
(2011). “[T]he relevant question is whether, 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. at ¶ 16 (quoting State v. Mathers, 165 Ariz. 64, 66 (1990)). Sufficient
evidence upon which a reasonable jury can convict may be direct or
circumstantial. Id. A judgment of acquittal is appropriate only when “there
is no substantial evidence to support a conviction.” Ariz. R. Crim. P.
20(a)(1). In reviewing the sufficiency of the evidence, we neither reweigh
conflicting evidence nor assess the credibility of witnesses. State v. Buccheri-
Bianca, 233 Ariz. 324, 334 ¶ 38 (App. 2013).

¶20          “A person may be guilty of an offense committed by such
person’s own conduct or by the conduct of another for which such person
is criminally accountable[.]” A.R.S. § 13–302. A person is criminally
accountable for the conduct of another person if he is “an accomplice of


                                       6
                             STATE v. WESLEY
                            Decision of the Court

such other person in the commission of an offense including any offense
that is a natural and probable or reasonably foreseeable consequence of the
offense for which the person was an accomplice.” A.R.S. § 13–303(A)(3).
Under A.R.S. § 13–301(2), an “accomplice” is a person who, with the intent
to promote or facilitate the commission of an offense, “[a]ids, counsels,
agrees to aid or attempts to aid another person in planning or committing
an offense.”

              1. Conspiracy to Commit First-Degree Burglary

¶21            Under A.R.S. § 13–1003(A), a person commits conspiracy by
agreeing with another person that somebody would commit an offense, the
person intended to promote or aid the commission of the offense, and one
of the parties commits an overt act in furtherance of the offense. “Criminal
conspiracy need not be, and usually cannot be, proved by direct evidence.
The common scheme or plan may be inferred from circumstantial
evidence.” State v. Fischer, 219 Ariz. 408, 420 ¶ 46 (App. 2008) (quoting State
v. Arredondo, 155 Ariz. 314, 317 (1987)). Here, the evidence showed that
Wesley parked in front of the house in his Camry with Meeds and Yanez.
The three men then met Boozer and entered through the home’s Arcadia
door, with Boozer holding a gun. As such, a jury could reasonably find that
Wesley conspired to commit first-degree burglary.

              2. First-Degree Burglary

¶22           A person commits first-degree burglary if such person or an
accomplice enters and remains unlawfully in or on a residence with the
intent to commit any theft or felony therein, and such person or accomplice
knowingly possessed a deadly weapon or a dangerous instrument in the
course of committing any theft or any felony. A.R.S. §§ 13–1507, –1508. The
evidence showed that Wesley and the other intruders unlawfully entered
and remained in D.D.’s home. They also attempted to open multiple safes
and eventually left the house with D.D.’s watches and L.S.’s passport. The
evidence also showed that at least one gun was used during the burglary
and subsequent robberies. Thus, sufficient evidence exists from which a
jury could reasonably find that Wesley committed first-degree burglary.

              3. Completed and Attempted Armed Robberies

¶23           Under A.R.S. § 13–1902, a person commits robbery if such
person takes property of another from that person’s immediate presence
and against that person’s will, and such person threatens or uses force
against the person with the intent to force surrender of the property or to
prevent resistance to taking or keeping the property. A person commits


                                      7
                             STATE v. WESLEY
                            Decision of the Court

armed robbery if such person commits robbery while armed with a deadly
weapon or a simulated deadly weapon. A.R.S. § 13–1904. Wesley and the
other intruders were armed with at least one gun when they zip-tied L.S.
and D.D., and circumstantial evidence showed that they had injured D.D.’s
head. The men also took L.S.’s passport and D.D.’s watches against the
victims’ permission. Thus, a jury reasonably could find that Wesley
committed armed robbery related to L.S. and D.D.

¶24            A person commits attempted armed robbery if the person
takes “any step in a course of conduct planned to culminate” in the
commission of armed robbery. A.R.S. § 13–1001(A)(2). Wesley and the other
intruders were armed when they zip-tied C.S., but they were unsuccessful
in finding or taking any property from her. As such, a jury reasonably could
find that Wesley attempted to commit armed robbery of C.S.

              4. Kidnappings

¶25            A person commits kidnapping by knowingly restraining
another person with the intent to aid in the commission of a felony or place
the victim or a third person in reasonable apprehension of imminent
physical injury to the victim or the third person. A.R.S. § 13–1304(A)(3), (4).
A person commits a DCAC kidnapping when such person kidnaps a child
under 15 years old and such person’s conduct or an accomplice’s conduct
was focused on, directed against, aimed at, or targeted the child. A.R.S.
§ 13–705(D). Here, D.D. was restrained when the intruders zip-tied his
limbs, zip-tied him to a mirror, and forced him to stay on a bed while they
took items from the home, such as D.D.’s watches. L.S. and C.S. were
zip-tied and forced to stay on a bed while Wesley and the other intruders
attempted to take items from the home and safes. A.D. was under 15 years
old, had been moved against his or his parents’ wishes, and had received a
threat that his fingers would be cut off if D.D. did not open a safe. Therefore,
a jury reasonably could find that Wesley had kidnapped D.D., L.S., C.S.,
and A.D., with A.D.’s kidnapping constituting a DCAC.

              5. Misconduct Involving Weapons

¶26            A person commits misconduct involving weapons by
knowingly possessing a deadly weapon while such person is a prohibited
possessor. A.R.S. § 13–3102(A)(4). Under A.R.S. § 13–3101(A)(7)(b), a
“prohibited possessor” means any person that has been convicted of a
felony and whose civil right to possess or carry a gun has not been restored.
“Possession” of a gun may be actual or constructive. State v. Gonsalves, 231
Ariz. 521, 523 ¶ 9 (App. 2013). A person “who exercises dominion or control



                                       8
                              STATE v. WESLEY
                             Decision of the Court

over property has constructive possession of it even if it is not in his
physical possession.” Id. (quoting State v. Chabolla-Hinojosa, 192 Ariz. 360,
363 ¶ 13 (App. 1998)). Therefore, “two or more persons may jointly possess
a prohibited object; possession need not be ‘exclusive, immediate and
personal.’” Id. (quoting State v. Carroll, 111 Ariz. 216, 218 (1974)). If a person
knows that his accomplice possesses a gun and the gun is essential to
committing the offense, then the person is deemed to have jointly possessed
the gun. Id. at 524 ¶ 13, 525 ¶ 19.

¶27           The evidence showed that Wesley and the other intruders
entered the home with the intent to commit armed robbery and that at least
Boozer carried a gun at the time. The evidence also showed that Meeds
pointed a gun at D.D. multiple times. The evidence further showed that
Wesley was a convicted felon, and no evidence showed that his civil right
to possess a gun had been restored. As such, a jury could reasonably find
that Wesley had committed misconduct involving a weapon.

                                CONCLUSION

¶28           For the foregoing reasons, we affirm.




                            AMY M. WOOD • Clerk of the Court
                            FILED: AA




                                          9
