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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TOMAS FIGUEROA PATINO, JR., Appellant. 

No. 1 CA-CR 16-0666 

Appeal from the Superior Court in Maricopa County

No. CR2015-154349-001 

The Honorable Jay R. Adleman, Judge

AFFIRMED

COUNSEL

Arizona Attorney General's Office, Phoenix

By Jason Lewis

Counsel for Appellee 

Janelle A. McEachern, Attorney at Law, Chandler

By Janelle A. McEachern

Counsel for Appellant

FILED 11-7-2017
STATE v. PATINO

Decision of the Court

2 

MEMORANDUM DECISION

Presiding Judge Michael J. Brown delivered the decision of the Court, in 

which Judge Jennifer B. Campbell and Judge Margaret H. Downie (retired) 

joined.

B R O W N, Judge:

¶1 Tomas Figueroa Patino appeals his conviction and sentence 

for armed robbery, arguing the jury's verdict was not supported by 

substantial evidence. For the following reasons, we affirm.

FACTUAL AND PROCEDURAL BACKGROUND

¶2 Patino and his accomplice entered a store together. While 

there, the two men stayed together and were observed speaking to one 

another. Both selected various clothing items but Patino carried all the 

items as they walked around the store. J.F., a store employee, suspected the 

two men were planning to steal the clothes so he locked the door even 

though the store was not scheduled to close for another 20 minutes. When 

Patino's accomplice eventually indicated he wanted to leave, J.F. unlocked 

the door. As soon as he stepped outside, Patino's accomplice grabbed the 

door and held it open, lifted up his shirt to reveal what J.F. described as the 

handle of a gun tucked in his waistband, and told J.F. not to try anything. 

Seconds later, Patino exited the store with an armful of clothes, triggering 

an alarm because the sensors had not been removed. 

¶3 The store's video surveillance system recorded Patino and his 

accomplice stealing the clothing items, but did not reveal the presence of a 

weapon. In an interview with Officer Schneider, Patino admitted to 

stealing clothes from the store but refused to identify his accomplice. When 

asked about a weapon, Patino responded in part that "his hom[ie] did not 

have a gun, he had a knife." 

¶4 A jury convicted Patino of armed robbery, a class two felony. 

The superior court found that Patino had at least two prior felony

convictions and sentenced him to 15.75 years as a non-dangerous, repetitive 

offender. Patino then filed this timely appeal.
STATE v. PATINO

Decision of the Court

3 

DISCUSSION

¶5 We review a claim of insufficient evidence de novo, although

our review is limited to whether substantial evidence exists to support the 

verdict. State v. West, 226 Ariz. 559, 562-63, ¶¶ 15, 19 (2011). "Substantial 

evidence is that which reasonable persons could accept as sufficient to 

support a guilty verdict beyond a reasonable doubt." State v. Davolt, 207 

Ariz. 191, 212, ¶ 87 (2004). Thus, "the relevant question is whether . . . any

rational trier of fact could have found the essential elements of the crime 

beyond a reasonable doubt." State v. Cox, 217 Ariz. 353, 357, ¶ 22 (2007) 

(quoting Jackson v. Virginia, 443 U.S. 307, 319 (1979)). Direct and 

circumstantial evidence are given equal probative value. See State v. Bible, 

175 Ariz. 549, 560, n.1 (1993). "[W]e view the evidence in the light most 

favorable to sustaining the verdict, and we resolve all inferences against the 

defendant." Davolt, 207 Ariz. at 212, ¶ 87. 

¶6 Robbery is the taking of another person's property against his 

or her will and from his or her "person or immediate presence." Ariz. Rev. 

Stat. ("A.R.S.") § 13-1902(A). Robbery also requires the use, or threatened 

use, of force with the "intent either to coerce surrender of property or to 

prevent resistance to such person taking or retaining property." Id. As 

relevant here, armed robbery occurs when, during a robbery, a person or an 

accomplice is "armed with a deadly weapon or a simulated deadly weapon." 

A.R.S. § 13-1904(A)(1). "[A]n accomplice is one who knowingly and with 

criminal intent participates, associates, or concurs with another in the 

commission of a crime." State v. McNair, 141 Ariz. 475, 480 (1984); see also

A.R.S. § 13-301. 

¶7 Patino concedes that he and "an unknown accomplice" 

intended to rob the store, but argues no substantial evidence exists to prove 

he intended to participate in an armed robbery. Thus, we understand 

Patino's argument as challenging the sufficiency of the evidence on the 

distinguishing element between robbery and armed robbery—the presence 

of a deadly weapon. See State v. Hargrave, 225 Ariz. 1, 12, ¶¶ 34, 36 (2010) 

(explaining that "armed robbery" includes all the elements of robbery and 

an additional element—"the presence of a weapon"). Additionally, Patino

appears to contend there is insufficient evidence to show he is liable under

a theory of accomplice liability because he did not know his accomplice

would commit armed robbery. See State v. Wall, 212 Ariz. 1, 5, ¶ 20 (2006) 

(explaining that we must look to the intent of the accomplice to aid the main 

actor, not the intent of the main actor). 
STATE v. PATINO

Decision of the Court

4 

¶8 The State did not present evidence that Patino possessed a 

deadly weapon or dangerous instrument during the robbery. Instead, the 

State's evidence showed that Patino's accomplice had a knife or a gun, either 

of which constitute a deadly weapon or dangerous instrument. See State v. 

Schaffer, 202 Ariz. 592, 595, ¶ 9 (App. 2002) (stating that guns and knives are 

inherently dangerous as a matter of law and thus are deadly weapons or 

dangerous instruments). Therefore, the jury could convict Patino of armed 

robbery under A.R.S. § 13-1904 only if it found Patino intentionally 

participated in the commission of armed robbery. See McNair, 141 Ariz. at 

480. 

¶9 In McNair, the defendant and another man, Turner, pulled 

into a gas station in the same car. 141 Ariz. at 478. When the gas station 

attendant turned to retrieve an item, Turner hit him with a jack, causing 

him to fall to the ground. Id. at 479. The defendant and Turner then stole 

money from the attendant and drove away in the same car. Id. A jury 

convicted the defendant of armed robbery, and on appeal he argued he was 

not an accomplice to that crime. Id. Our supreme court upheld the 

conviction, finding that "[s]ufficient evidence existed from which the jury 

could find that the defendant was an accomplice and guilty of the crime of 

armed robbery." Id. at 481.

¶10 Like McNair, the evidence here is sufficient to support 

Patino's conviction of armed robbery under the theory that Patino's 

accomplice was armed with a deadly weapon. See State v. Anderson, 210 

Ariz. 327, 342, ¶ 54 (2005) ("A defendant need not personally use or threaten 

to use the deadly weapon if an accomplice does so."). Patino and his 

accomplice drove to and entered the store together. Both remained by each 

other in the store, selected clothing items together, and communicated with 

one another. Although Patino was the only one that left the store carrying 

the stolen clothes, his accomplice was seen placing clothing items in his 

arms. As soon as they exited the store, they went straight to the car they 

arrived in and drove off together. J.F. testified that he saw the handle of a 

gun tucked in the accomplice's waistband. Moreover, Patino told Officer 

Schneider that his accomplice had a knife. Therefore, sufficient evidence

exists in the record to support Patino's conviction for armed robbery.

¶11 Finally, the State notes that the sentencing minute entry 

incorrectly states that Patino was convicted of a "non-dangerous" offense

because dangerousness is implicit in armed robbery. The State, however, 

did not file a cross-appeal raising this issue. Assuming the sentencing 

minute entry should be corrected, we do not have the power to take such 

action. See State v. Dawson, 164 Ariz. 278, 286 (1990) ("Our power to correct 
STATE v. PATINO

Decision of the Court

5 

an illegal sentence to correspond to a verdict is predicated on an appeal by 

the state.").

CONCLUSION

¶12 Based on the foregoing, we affirm Patino's conviction and 

sentence.