                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                 ARSENIO CARRILLO BUSTOS, Appellant.

                             No. 1 CA-CR 18-0505
                               FILED 9-12-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-148672-003
               The Honorable Susanna C. Pineda, Judge

                                  AFFIRMED


                                   COUNSEL

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

Maricopa County Office of the Legal Advocate, Phoenix
By Andrew C. Marcy
Counsel for Appellant
                            STATE. v. BUSTOS
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jennifer B. Campbell delivered the decision of the Court,
in which Judge Lawrence F. Winthrop and Judge Michael J. Brown joined.


C A M P B E L L, Judge:

¶1            Arsenio Carillo Bustos argues that insufficient evidence
supports his convictions of first-degree murder and four counts of
aggravated assault. We will reverse a conviction if it is not supported by
substantial evidence of guilt. State v. Ellison, 213 Ariz. 116, 133–34, ¶ 65
(2006). Because substantial evidence supports Bustos’ convictions, we
affirm.

                             BACKGROUND1

¶2            After watching a football game together, a group of teenaged
boys walked to a nearby McDonald’s. As they approached the restaurant,
the boys passed Bustos and Felix German sitting in a blue truck, waiting in
the drive-through line. Believing the men were staring at them, one of the
boys approached the truck to confront the men. When the men appeared
disinterested, the boy quickly concluded that they “didn’t want to fight”
and proceeded inside the restaurant with his friends.

¶3             A few minutes later, the boys left the restaurant and one of
the boys noticed the blue truck following them slowly through the parking
lot. The truck came to a stop, Bustos and German got out of the vehicle, and
a verbal altercation ensued. When one of the men mentioned a gun, the
boys “backed off” and everyone left the McDonald’s parking lot.

¶4           After that heated exchange, the boys purchased other snacks
and drinks at a nearby convenience store. They then walked toward one of
their homes and noticed the blue truck pass them on the street.
Immediately, the truck turned around and drove back toward the boys.
Once the truck came to a stop, Bustos got out of the truck holding a
handgun and Antonio Libert got out of the truck bed holding a rifle. The



1      We view the facts in the light most favorable to sustaining the jury’s
verdict. State v. Boyston, 231 Ariz. 539, 542, ¶ 2 n.2 (2013).


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                            STATE. v. BUSTOS
                           Decision of the Court

two men opened fire on the boys, who scattered in search of safety. When
the smoke cleared, one boy was dead and another had been shot in the leg.

¶5          After an 18-day jury trial, Bustos was found guilty of first-
degree murder and four counts of aggravated assault. He was sentenced to
prison.

                               DISCUSSION

¶6             As his sole issue on appeal, Bustos argues that insufficient
evidence supports his convictions. Specifically, he contends the State failed
to present reliable evidence that he was involved in the McDonald’s
altercation or the shooting.

¶7           We review a claim of insufficient evidence de novo. State v.
West, 226 Ariz. 559, 562, ¶ 15 (2011). Sufficient evidence may be direct or
circumstantial and “is such proof that reasonable persons could accept as
adequate” to “support a conclusion of defendant’s guilt beyond a
reasonable doubt.” State v. Borquez, 232 Ariz. 484, 487, ¶¶ 9, 11 (App. 2013).
In evaluating the sufficiency of the evidence, “we do not weigh the
evidence; that is the function of the jury.” State v. Williams, 209 Ariz. 228,
231, ¶ 6 (App. 2004).

¶8             To support his argument, Bustos notes that the only witness
who identified him as a participant in the altercation and shooting was
German, the driver. Because German was likewise charged with first-
degree murder and four counts of aggravated assault, but entered a
testimonial plea agreement, Bustos argues that he had a “strong motive to
lie to avoid a sentence of natural life.”

¶9            While it is true that none of the surviving victims could
positively identify Bustos or Libert, the victims’ descriptions of the front-
passenger shooter as heavily tattooed with a “fade” haircut were consistent
with Bustos’ appearance. Likewise, Bustos’ appearance was consistent with
a McDonald’s surveillance video that recorded two men having an
altercation with the boys.

¶10           To the extent Bustos’ contends that German’s testimony was
unreliable, the jurors had the opportunity to determine whether his
testimony, which inculpated himself as well as Bustos, was credible. Over
the course of three days, German testified about the verbal altercation at
McDonald’s, driving Bustos to a house where he could retrieve a gun,
Bustos’ phone call to Libert, picking up Libert at the McDonald’s parking
lot, and canvassing the neighboring area in search of the boys. According


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                            STATE. v. BUSTOS
                           Decision of the Court

to German, when the men spotted the boys, Bustos and Libert jumped out
of the truck. Although German ducked below the dashboard after the first
shot was fired, he saw Bustos get out of the truck with a gun and return to
the truck with a gun.

¶11           The State charged both Bustos and Libert with first-degree
murder and four counts of aggravated assault. The State did not need to
identify which of the men fired the shots that killed or injured two of the
boys. A person is criminally liable for the conduct of another person if,
acting with intent, the person aids the other person’s commission of the
offense. See A.R.S. §§ 13-301, -303. Thus, the State may prove a “defendant’s
criminal liability for a substantive criminal offense” by showing the
defendant aided “the commission of that offense by a principal.” State v.
Korovkin, 202 Ariz. 493, 497, ¶ 12 (App. 2002).

¶12           In this case, the State provided ample evidence that two
armed men got out of the truck and opened fire on the boys. The superior
court instructed the jurors on accomplice liability and the evidence
supported a finding that Bustos was guilty of the charged offenses, either
as the principal or an accomplice. The jury heard about German’s purported
motivation to lie—his plea agreement capping his prison exposure to no
more than 12 years if he testified truthfully at the trial against Bustos—and
ultimately determined his credibility. On this record, sufficient evidence
exists from which a reasonable jury could find that Bustos, acting in concert
with Libert, shot the boys, placing each in apprehension of imminent
physical injury, seriously injuring one, and killing another.

                              CONCLUSION

¶13          For the foregoing reasons, we affirm.




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




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