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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA, Appellee
,

v.

ANDREW TYRAYE MOERING, Appellant

.

No. 1 CA

- CR 18

- 0822

Appeal from the Superior Court in Maricopa County

No. CR2014

- 133418

- 001 The Honorable Kathleen H. Mead
, Judge

AFFIRMED

COUNSEL
Arizona Attorney General ' s Office , Phoenix By Casey Ball Counsel for Appell ee
Maricopa County Public Defender ' s Office
, Phoenix By Dawnese Hustad Counsel for Appellant FILED 5-12-2020STATE v. MOERING Decision of the Court

2 MEMORANDUM DECISION
Judge James B. Morse Jr. delivered the decision of the Court, in which Presiding Judge David D. Weinzweig and Judge Jennifer M. Perkins joined

.

M O R S E , Judge:

¶1 Andrew Tyraye Moering appeals his convictions and sentences for first

- degree murder
, aggravated assault
, and two counts of
at tempted armed robbery. For the reasons that follow, we affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 We view the facts in the light most favorable to sustaining the verdicts and resolve all reasonable inferences against Moering. S ee S tate v. Payne , 233 Ariz. 484, 509, ¶ 93 (2013). In June 2014, Moering shot and killed D.J. during a n attempted armed robbery. He also shot A. D. , D.J. ' s stepfather
, in the left elbow and left hip

. Moering set up the robbery under the pretense of a marijuana purchase

. ¶3 Moering and D.J. were i ntroduced earlier in the day through mutual acquaintance s via text message

. Moering agreed to buy a quarter

pound of marijuana from D.J. They even tually agreed to meet at a local park to consummate the deal

. A n accomplice, R.V. , drove Moering and co

defendant Mitchell Binion , and A.D. drove D.J. t o the meeting

. D.J. brought a gun because he was c oncern ed about his safety

. ¶4 At the park, Moering and Binion walked from R.V. ' s car to the victims ' car , which was near a basketball court

. A teenager , P.B., witnessed the events from the court

. Feigning that the package was underweight, Moering told A.D. he wanted to retrieve a scale from his car

. Moering and Binion re turned to R.V. ' s vehicle

. R.V. told Moering to " go get it " and " draw down
, " which Bin ion understood to mean " pull out his gun

. " Moering and Binion returned to the victims ' car

. A.D. was standing outside with the marijuana and D.J. was in the front passenger seat.

¶5 Moering pulled out his gun , " racked the slide, " and pointed it at A. D

. , ordering him to " [g] ive me the [ marijuana ]

. " Moering told Binion to grab the marijuana , but Binion saw that D.J. had a gun pointed at him from inside the car. Binion yelled " [ h ] e has a gun " and fled

.STATE v. MOERING Decision of the Court

3 ¶6 D.J. fired first, and Moering returned fire

. Moering shot D.J. in the shoulder, collapsing his lung . He died at the hospital

. Moering also wounded A. D.

¶7 T he State charged Moering wit h first

- degree murder , a class one dangerous felony (Count 1) ; aggravated assault, a class three dangerous felony (Count 2) ; and two count s of attempted armed robbery, class three dangerous felonies (Count s 3

- 4 ). After a fourteen

- day trial, the jury convicted Moering as charged

. The superior court sentenced Moering to the follow ing term s of imprisonment : Count 1, life with the possibility of release after 25 years; Count 2, 11.25 years served consecutively to Count 1; Count 3 , 11.25 years serve d concurrently with Count 1; and Count 4, 11.25 years served consecutively to Count 1 and concurrently with Count 2

. Moering timely appealed , and w e have jurisdiction under Article 6, Section 9 of the Arizona Constitution and A.R.S. §§ 12

- 120.21(A)(1), 13

- 4031, and

- 4033(A)(1).

DISCUSSION

I. Lesser

- I ncluded O ffense I nstruction.

¶8 Moering argues that the superior court erred by denying his request for a jury instruction on attempted theft as a lesser

- included offense
to attempted armed robbery. The superior court found " no evidence " to support giving the instruction. We review the denial of a requested jury instruction for abuse of discretion. State v. Wall , 212 Ariz. 1, 3, ¶ 12 (2006). We defer to the superior court ' s assessment of the evidence in deciding whether to provide a requested instruction. Id

. at 5, ¶ 23.

¶9 A jury instruction on a lesser

- included offense is required when the evidence is " such that a jury could reasonably find that only the elements of a lesser offense have been proved[.] " Id. at 3, ¶ 14. " [ A ] n offense is ' necessarily included
, ' and so requi res that a jury instruction be given
, only when it is lesser included [ and ] the evidence is suffi cient to support giving the instruction. " Id

. " [ A ] ttempted t heft is a lesser

- included offense of attempted robbery

. . . . " I d

. at ¶ 15.

¶10 " A person commits robbery if in the course of taking any property of another from his person or immediate presence and against his will, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistanc e to such person taking or retaining property. " A.R.S. § 13

- 1902(A). To prove armed robbery
, the State must show that when comm itting a robbery, the person

use d or threaten ed to use a deadly weapon. A.R.S. § 13

- 1904(A). " TheSTATE v. MOERING Decision of the Court

4 essential elements of an attempted robbery are (1) intent to commit robbery and (2) an overt act towards that commission. " State v. Clark , 143 Ariz. 332, 334 (App. 1984); see also A.R.S. § 13

- 1001(A).

¶11 " A person commits theft if, without lawful authority, t he
person knowingly [c] ontrols property of another with the intent to deprive the other person of such property [

. ] " A.R.S. § 13

- 1802(A)(1)

. " The main difference between the crimes of theft and robbery lies in the use or threat of force

. . . . " State v. Tramble
, 144 Ariz. 48, 52 ( 1985 )

. ¶12 Binion entered a testimonial plea agreement with the S tate and testified at trial

. Binion repeatedly stated that Moering drew his gun
, pointed it at A.D. , and demanded the marijuana when they returned after purportedly retrieving a s cale

. Binion said he did not see D.J. ' s weapon until after Moering pointed his gun at A.D. and ordered him to hand over the marijuana. He also " never saw the actual moment " when D.J. drew his gun

. ¶13 At one point in redirect examination , however, Binion s tate d that at the time of the shooting
, he " believed that [D.J.] had his gun out first and he was the one that shot first when I said: He has a gun. " Moering suggests that Binion's statement about his "belief" at the time sufficiently supported an attempted theft instruction. But r ight after this statement
, Binion again confi rmed that he saw Moering pull his firearm on A.D. and order him to surrender the mari juana before he saw D.J. ' s gun. Binion repeated that after Moering pointed his weapon at A.D., Binion then " saw [D .J. ] pulling his gun up " and yelled that D.J. had a gun. Binion testified that he did not think Moering was aware that D.J. had a gun until Binion yelled.

¶14 We disagree with Moering's characterization of the testimony

. Binion framed his inconsistent statement as a " belief " or speculation

. See State v. Contreras , 107 Ariz. 68, 70 (1971) (holding that "speculation alone, w ithout corroboration, is not sufficient" to receive lesser

- included instruction). Binion did not see or know when D.J. drew his gun. H e also immediately c larified that he observ ed Moering dr a w his gun first and demand the marijuana before he saw D .J. with a gun

. ¶15 Furthermore, P.B. corroborated Binion ' s account. P.B. was standing about thirty feet from the scene

. He saw the cars arrive and the parties meet

. H e watched Moering and Binion leave and then return to the victims ' car. He saw Moering pull a semiautomatic pistol out, " rack theSTATE v. MOERING Decision of the Court

5 slide, " point it at A.D., and yell for A.D. to " [h] and it over. " H e saw D.J. then

" pull [] out a weapon of his own " and fire first.

¶16 Likewise, A.D. confirmed that Moering pointed his gun at A.D., yelling
, " g ive me the weed. " A.D. yelled " g un " as Binion grabbed for the marijuana before shots rang out

. ¶17 Consequently
, the uncontroverted testimony of all three witnesses established that Moering drew his gun ; pointed it at A. D.; racked the weapon ; demanded the marijuana from A.D. ; and told Binion to grab it

— all before D.J. drew his weapon

. Moering was not aware that D.J. had a gun before Binion yelled

. And although D.J. fired first, the shooting sequence is inconsequential to determining whether Moering ' s initial acts of pointing his gun and demanding the drugs could reasonably qualify as theft. See State v. Celaya , 135 Ariz. 248, 254 (1983) ( " [A] pers on . . . engaged in attempted robbery must be considered the initial aggressor; it is immaterial whether the victim of the robbery or the defendant fired first. " ).

¶18 The evidence presented at trial was not " sufficient to support giving the instruction. " Wal l , 212 Ariz. at 3, ¶ 1 4

. Because no evidence controverted Moering ' s threatened use of force, he was not entitled to a theft instruction

. See State v. Jackson
, 186 Ariz. 20, 27 (1996) ( " To determine whether there is sufficient evidence [for a ] lesser

- included offense instruction, the test is whether the jury could rationally fail to find the distinguishing element of the greater offense

. " ) (quotation omitted)

. ¶19 Moering offers two counterarguments. He suggest s that " [he] did not make any threat. " But all three witnesses testified that Moering point ed his gun at A.D. to coerce surrender of the mar ijuana , and t his evidence satisfies the threat element

. See State v. Garza Rodri guez , 164 Ariz. 107, 11 2 ( 19 90 ) ( " [A] weapon

. . . must actually be present and used in a threatening manner to satisfy the ' threatens to use ' element of the armed robbery statute. " )

. ¶20 Moering also argues that the attempted theft instruction was requir ed because Binion tes ti fi ed that the initial plan was a " snatch and grab " theft without the use of a gun. But Binion also testified that Moering had planned a " lick
, " which could refer to armed robbery. Moreover , Binion ' s understanding of Moering ' s intenti ons is not dispositive and ignores other evidence, including witness observations and R.V. ' s direction for Moering to " go get it " and " draw down " if necessary

. Moering and R.V. also exchanged text messages that suggest Binion may not have know n the ir plan.STATE v. MOERING Decision of the Court

6 ¶21 Moering's reliance on State v. C elay a is unavailing

. In Celaya
, the defendant shot an undercover agent during a drug deal in which the defendant planned to steal the buyer ' s money by giving him a bag of clothes and shoes in the exchange

. 135 Ariz. at 250

- 5 1

. Surveillance agents watched
t he undercover agent g i ve Celaya the money and saw Cel aya put it in his

car. Id

. The shooting occurred after Celaya returned to the agent ' s car with the " drugs " and then snatched the agent ' s car keys to flee

. Id

. O ur supreme court determined that " robbery is not committed when the thief has gained peaceable possession of the property and uses no violence except to resist arrest or effect his escape

. " Id

. at 252. Because the evidence adequately established that the agent may have voluntarily g iven Celaya the money without force or threat , Celaya was entitled to a lesser

- included theft instruction for armed robbery

. Id

. at 252

- 53. Moering ' s situation is distinguishable

. N o reasonable view of the evidence presented at Moering ' s trial could lead a jury to find he peac eabl y attempted to obtain the marijuana

. ¶22 Moering ' s reliance on State v. Dugan
, 125 Ariz. 194 ( 1980 ), is similarly unpersuasive

. In Dugan , the defendant ' s testi mony conflict ed enough with the State ' s version of the facts for a robbery charge that the jury could reasonably conclu de no force or fear was present

. Id. at 19 5

- 9 6. O ur supreme court held that a defendant is entitled to a lesser

- included theft instruction f or a robbery charge " if the jury could rationally find that the state failed to prove the distinguishing element of fear , but did in fact
prove all other elements [

. ] " Id

. at 196. The c onflicting versions of facts in Dugan are not present here. The ev idence clearly established Moering ' s threaten ing use of a gun and proved th e " disting ui shing element

. " Id

. ; s ee also State v. Sprang
, 227 Ariz. 10 , 12, ¶ 7 (App. 2011)

. ¶23 Accordingly, t he superior court properly exercised its discretion to deny the attempted theft instruction as a lesser

- included offense

. Furthermore
, the superior court provided the jury with an instruction for the lesser

- included offense of attempted robber y , which the jury rejected

. T h e jury ' s r eject ion of the lesser

- included offense made any presumed error harmless

. S ee S tate v. Amaya

- Ruiz
, 166 Ariz. 152, 174 ( 1990 ) ( " [W]hen a defendant is convicted of first degree murder rather than second degree murder, any error as to instructions on lesser included offenses is necessarily harmless, because the jury has necessarily rejected all lesser

include d crimes. " ) ; see also S tate v. White
, 144 Ariz. 245, 247 ( 1985 ) ( " [ B ] y f inding defendant guilty of the highest offense , to the exclusion of the immediately lesser

- included offense

. . . the jury necessarily rejected all other lesser

- included offenses. " )

.STATE v. MOERING Decision of the Court

7 II. S elf

- D efense I nstruction

. ¶24 Moering contends that the superior court erred by instruct ing the jury that it could consider his self

- defense cla im for the aggravated assault charge but not for the attempted armed robbery charges

. " We review a trial court ' s refusal to instruct on self

- defense for an abuse of discretion, viewing the evidence in the light most favorable to [Moering]. " State v. Carson
, 243 Ariz. 463, 467, ¶ 17 (2018). But we will not reverse the court's refusal unless Moering suffered prejudice as a result. State v. Snodgrass , 121 Ariz. 409 , 411 (App. 1979).

¶25 Generally, a defendant is " justified in threatening or using physical force against another when and to the extent a reasonable person would believe that physical force is immediately necessary to protect himself against the other ' s use or attempted use of unlawful physical force

. " A.R.S. § 1 3

- 404 (A)

. " A defendant is entitled to a self

- defense instruction if the record contains the ' slightest evidence ' that [the defendant] acted in self defense

. " State v. King
, 225 Ariz. 8 7 , 90 , ¶ 14 ( 2010 ) (citation omitted)

. " The

' slightest evidence' is a low standard that has been defined in the self

defense context as ' a hostile demonstration , which may be reasonably regarded as placing the accused apparently in imminent danger of losing her life or sustaining great bodily harm. ' " Id

. at ¶ 15 ( citation omitted ). " The privilege of self

- defense is not available to one who is at fault in provoking
an encounter or difficulty that results in a homicide. " State v. Lujan , 136 Ariz. 102, 104 (1983).

¶26 D.J. shot first. Because the evidence supp orted a finding that Moering may have responded in self

- defense to D.J. ' s initial shot, the superior court properly determined he was entitled to a self

- defense instruction for the aggravated assault charge. I d

. at 90, ¶ 14 ; see A.R.S. § 13

- 404(A)

. The jury rejected Moering ' s defense

. ¶27 But Moering drew his weapon first

. T he uncontroverted evidence established that Moering p ull ed and racked his gun to demand the marijuana

. See King
, 225 Ariz. at 90

- 91, ¶¶ 14

- 15 , 17

. E ven i n the light most favorable to Moering, Binion's statement about his momentary
, clarified " belief " does not independently provide the necessary " slightest evidence

. " See State v. Bojorquez , 138 Ariz. 495, 497

- 98 (1984) ( stating "where a requested self

- defense instruction is not warranted by the evidence in the case, the trial court is under no obligation to give it

. ").

¶28 Moering also fail ed to argu e that he suffered prejudice. The jury was instructed and expressly rejected self

- defense on the agg ravatedSTATE v. MOERING Decision of the Court

8 a ssault count. Moering offers no conceivable scenario, nor can we imagine one, in which self

- defense could justify the attempted armed robbery, but
not the aggravated assault. Thus, by rejecting self

- defense as to the aggravated assault count, the jury implicitly rejected any self

- defense claim for the armed robbery charges and a ny hypothetical error was harmless

. See State v. Trostle
, 191 Ariz. 4, 13 ( 1997) (prejudice must appear affirmatively from the record) ; see also United States v. Weddell , 567 F.2d 767, 770 (8th Cir. 1977) (finding the failure to instruct on self

- defense for one murder count was harmless where the jury rejected the defendant ' s sel f

defense claim on another murder count arising from the same shooting)

. ¶29 The superior court therefore acted within its discretion by limiting the jury's consideration of self

- defense.

CONCLUSION

¶30 For the foregoing reasons, we affirm Moerin g ' s convictions and sentences

.