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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    DAVONTE ERIC HEARN, Appellant.

                             No. 1 CA-CR 15-0230
                               FILED 8-4-2016


          Appeal from the Superior Court in Maricopa County
                     No. CR2012-137842-002DT
          The Honorable Virginia L. Richter, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Jana Zinman
Counsel for Appellee

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



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Lawrence F. Winthrop and Judge Samuel A. Thumma
joined.


J O N E S, Judge:

¶1           Davonte Hearn appeals his convictions for one count of
burglary in the first degree, four counts of kidnapping, one count of
attempted armed robbery, and one count of attempted kidnapping. On
appeal, Hearn argues the trial court erred in denying his motion for
judgment of acquittal. For the following reasons, we affirm.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            In the early morning hours of July 16, 2012, Todd L. returned
to the home he shared with Teresa R., finding it unexpectedly dark. After
entering the residence, Todd was approached by co-defendant Javon
Germany, who pointed a gun at his face and said “shut up.” At the same
time, Hearn approached Todd from behind, “put a pistol to the back of [his]
head” and stated, “don’t make me blow your fucking head off.” The men
then bound Todd’s hands, feet, eyes, and mouth with duct tape and plastic
zip-ties; they also asked when Teresa would return. Todd testified he
believed the men were burglarizing his home and would kill him.

¶3              The men then moved Todd to the top of the stairs. When they
later heard Teresa arrive, the men told Todd if he “made any noise or
anything . . . they were going to kill Teresa and the kids,” and took up their
positions by the door.

¶4           Teresa’s six-year-old daughter, A.V., entered the home first,
followed by Teresa, who was carrying her two-year-old son, D.L. Once
inside, Hearn held a gun to Teresa’s head and told her “to be quiet and go



1     We view the facts in the light most favorable to upholding the verdict
and resolve all reasonable inferences against the defendant. State v. Harm,
236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (citing State v. Valencia, 186 Ariz. 493,
495 (App. 1996)).


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                            STATE v. HEARN
                           Decision of the Court

upstairs.” Teresa testified she believed that if she ran, the men would grab
A.V., so the three went upstairs to A.V.’s bedroom.

¶5             Teresa and the children discovered Todd, still bound, at the
top of the stairs with Germany standing nearby and still holding a gun.
When the men said they were going to tie Teresa and the children up, she
refused, stating, “you’re not going to touch me or my kids.” The men told
Teresa “not to move, not to do anything, to stay in the room,” while they
sat on stools directly outside. Both Todd and Teresa later smelled the odor
of burnt marijuana coming from downstairs. Hearn told Teresa she was
beautiful and that he was “going to take [her] with [him] when [he was]
done,” and both Todd and Teresa overheard Hearn say he was going to
“get a piece of” Teresa.

¶6              Meanwhile, Todd remained bound on the floor. Hearn and
Germany took approximately $2,300 from Todd’s person and also advised
him they had discovered other money in a bedroom drawer. They asked
Todd to use the money to buy them drugs, and threatened they would “kill
[Todd’s] whole family and make [him] live with that for the rest of [his]
life” if he did not cooperate.

¶7            Later that morning, Todd convinced the men that if he did not
deliver a vehicle to a customer as promised, the customer would worry
about his absence. Hearn left with Todd to deliver the vehicle, leaving
Teresa and the children at the residence with Germany. Germany told
Todd that if he “tried anything funny,” Germany would kill Teresa and the
children. Nonetheless, Todd was able to alert a garage attendant that he
and his family had been kidnapped. The attendant obtained Todd’s license
plate number and called 9-1-1. After delivering the vehicle and a failed
attempt to obtain the drugs Hearn and Germany requested, Todd and
Hearn were pulled over and apprehended by Maricopa County Sheriff’s
Office deputies.

¶8           Shortly thereafter, two deputies approached the residence.
Germany directed Teresa to answer the door and tell them everything was
okay while he stood upstairs with the children. After stating everything
was okay, Teresa mouthed to the deputies, “No. He’s in the house,” then
advised she had to go and closed the door. When Germany went outside
to check the backyard, Teresa locked him outside, where he was
immediately apprehended. By this time, the children had been in A.V.’s
bedroom for approximately ten hours.




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                            STATE v. HEARN
                           Decision of the Court

¶9             Following his arrest and waiver of rights pursuant to Miranda
v. Arizona, 384 U.S. 436 (1966), Hearn admitted he participated in the events
described, but claimed he did so “under duress.” Hearn claimed he and his
family would be harmed by “some of the other people involved” if he did
not participate. However, Hearn did not identify a particular person who
might follow through on the alleged threat or claim to be held at gunpoint
at any time and was unable to explain why he did not free Todd or notify
law enforcement about the events when he had the opportunity to do so.

¶10            After the incident, Todd and Teresa discovered they were
missing approximately $7,800 in jewelry, a pistol, and the keys to Teresa’s
Porsche. Officers found $2,380, the amount taken from Todd’s person, in
Hearn’s sock. Between the residence, the backyard, and Todd’s vehicle, the
officers also found three handguns, two pairs of black work gloves, and a
white cell phone, as well as zip-ties, duct tape, plastic wrap, and scissors.

¶11            Hearn and Germany were charged with one count of burglary
in the first degree, four counts of kidnapping, and two counts of attempted
armed robbery and were tried together. Hearn asserted he lacked criminal
intent because he acted under duress, but did not take the stand or
otherwise offer evidence in support of that defense.

¶12           At the close of the State’s evidence, Hearn joined Germany’s
motion for a directed verdict on counts four and five, alleging the
kidnapping of the children, on the grounds that neither defendant
“specifically targeted” the children, and there was no evidence the
children’s freedom was restricted by anyone other than Teresa. The motion
was denied. The defendants did not present any witnesses, and a twelve-
person jury found Hearn guilty as charged. The jury also found the State
had proven beyond a reasonable doubt six aggravating factors, not
challenged on appeal, relative to the kidnappings of Todd and Teresa, the
burglary, and the attempted armed robbery. Regarding the kidnapping of
six-year-old A.V., the jury found the State had proven five aggravators, and,
regarding the kidnapping of two-year-old D.L., the jury found the State had
proven two aggravators. After additional proceedings, the jury determined
the State had not proven that the offenses against A.V. and D.L. were
dangerous crimes against children.

¶13            The trial court sentenced Hearn as a dangerous, non-
repetitive offender to concurrent prison sentences, the longest of which is
twenty-one years. Hearn timely appealed. We have jurisdiction pursuant




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                             STATE v. HEARN
                            Decision of the Court

to Arizona Revised Statutes (A.R.S.) sections 12-120.21(A)(1),2 13-4031, and
-4033(A)(1).

                               DISCUSSION

¶14             Hearn argues the trial court erred in denying his motion for
judgment of acquittal alleging: (1) there was insufficient evidence to convict
him of kidnapping the two child victims, and (2) he was entitled to
judgment as a matter of law on his defense of duress. A directed verdict is
appropriate “if there is no substantial evidence to warrant a conviction.”
Ariz. R. Crim. P. 20(a). We review the denial of a Rule 20 motion and the
sufficiency of the evidence to support a conviction de novo, Harm, 236 Ariz.
at 406, ¶ 11 (citing State v. West, 226 Ariz. 559, 562, ¶ 15 (2011)), and will
reverse “only where there is a complete absence of probative facts to
support the conviction,” State v. Soto-Fong, 187 Ariz. 186, 200 (1996) (quoting
State v. Scott, 113 Ariz. 423, 424-25 (1976)).

I.     Kidnapping of A.V. and D.L.

¶15           As relevant here, a person commits kidnapping by
“knowingly restraining another person with the intent to: . . . [i]nflict death,
physical injury or a sexual offense on the victim, or to otherwise aid in the
commission of a felony.” A.R.S. § 13-1304(A)(3). On appeal, Hearn argues
only that there was insufficient evidence of restraint to convict him of
kidnapping A.V. and D.L. because neither Germany nor Hearn ordered the
children into A.V.’s bedroom, and Teresa never asked that they be allowed
to leave.

¶16           “Restrain” means:

       [T]o restrict a person’s movements without consent, without
       legal authority, and in a manner which interferes
       substantially with such person’s liberty, by either moving
       such person from one place to another or by confining such
       person. Restraint is without consent if it is accomplished by:

              (a) Physical force, intimidation or deception; or

              (b) Any means including acquiescence of the victim if
              the victim is a child less than eighteen years old or an



2     Absent material changes from the relevant date, we cite a statute’s
current version.


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                            STATE v. HEARN
                           Decision of the Court

             incompetent person and the victim’s lawful custodian
             has not acquiesced in the movement or confinement.

A.R.S. § 13-1301(2). Although the children were not directly threatened or
ordered to take any particular action, sufficient evidence was presented
upon which a reasonable juror could find, beyond a reasonable doubt, that
the children were not free to leave A.V.’s bedroom and were thereby
confined without consent of their guardian. Hearn does not dispute Teresa
was confined upstairs during the events, with at least one armed assailant
standing watch. He does not explain how the six- and two-year-old
children were expected to function independent of their primary caretaker.
And, even if Hearn and Germany did not point their guns at the children,
the evidence indicated that both A.V. and D.L. were aware of and
intimidated by the presence of the guns in their home and directed at their
parents.

¶17            Hearn points out that Teresa did not negotiate an escape for
the children or simply abandon them downstairs while Todd and Teresa
were restrained and under armed guard upstairs for ten hours, but these
facts are irrelevant; nor did the assailants take any action to release the
children or otherwise indicate they were free to leave if Teresa could make
suitable arrangements. Indeed, Hearn and Germany’s actions suggest
otherwise; their repeated threats to Todd that they would kill the children
if he did not comply with their directions indicate the children were a vital
part of their plan to obtain money and/or drugs from Todd, and, therefore,
they would not readily have released the children. Substantial evidence
supports Hearn’s conviction; accordingly, we find no error.

II.   Duress

¶18           Hearn also argues he was entitled to a directed verdict on his
defense of duress, asserting that, because there was sufficient evidence to
warrant an instruction on the duress defense, “it would too, have been
reasonable, in light of all the evidence presented, to determine that duress
was an absolute defense as to all counts and to grant [Hearn]’s motion for
judgment of acquittal.” Because this argument is raised for the first time on
appeal, we review only for fundamental error. State v. Turner, 239 Ariz.
390, 393, ¶ 13 (App. 2016) (citing State v. Henderson, 210 Ariz. 561, 567,
¶¶ 19-20 (2005)).

¶19         Duress occurs where “a reasonable person would believe that
he was compelled to engage in the proscribed conduct by the threat or use
of immediate physical force against his person or the person of another



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                             STATE v. HEARN
                            Decision of the Court

which resulted or could result in serious physical injury which a reasonable
person in the situation would not have resisted.” A.R.S. § 13-412(A). “In
order to constitute a defense . . . the coercion or duress must be present,
imminent and impending, and of such a nature as to induce a well-
grounded apprehension of death or serious bodily injury if the act is not
done.” State v. Kinslow, 165 Ariz. 503, 505 (1990) (quoting State v. Jones, 119
Ariz. 555, 558 (App. 1978)); see also State v. Lamar, 144 Ariz. 490, 497 (App.
1984) (“Duress envisions a third person compelling a person by the threat
of immediate physical violence to commit a crime against another person
or the property of another person.”). Once Hearn presented evidence of
duress, the State was required to prove beyond a reasonable doubt that
Hearn did not have any justification for his actions. See A.R.S. § 13-205(A),
-412. However, a directed verdict in Hearn’s favor would be appropriate
only if there is a complete absence of probative facts to support the
conviction. See supra ¶ 14.

¶20           The trial court properly instructed the jury on the defense of
duress, and the jury, by returning guilty verdicts, rejected that claim.
Indeed, Hearn did not claim to be held at gunpoint at any time and was
unable to explain why, on the multiple occasions he was free from the
influence of his cohorts, he did not free Todd or notify law enforcement
about the events. See Kinslow, 165 Ariz. at 506 (finding it “wholly
implausible” that the defendant “had no reasonable opportunity to escape
the threatened harm without committing subsequent crimes” because he
“certainly had access to a telephone and could have called police or federal
agents to notify them of his intent to surrender”). Moreover, Hearn’s
conduct was not consistent with that of a person exposed to a threat of
immediate violence; evidence was presented that Hearn was still able to
make casual sexual advances toward Teresa and smoke marijuana in the
residence while the victims were held captive upstairs. We find no error,
fundamental or otherwise.

                              CONCLUSION

¶21           Hearn’s convictions and sentences are affirmed.




                                     :AA

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