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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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 Appellee

Maricopa County Public Defender's Office, Phoenix

By Dawnese Hustad

Counsel for Appellant

FILED 5-12-2020
STATE v. MOERING

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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 

attempted 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. See State v. 

Payne, 233 Ariz. 484, 509, ¶ 93 (2013). In June 2014, Moering shot and killed 

D.J. during an 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 introduced earlier in the day through

mutual acquaintances via text message. Moering agreed to buy a quarterpound of marijuana from D.J. They eventually agreed to meet at a local 

park to consummate the deal. An accomplice, R.V., drove Moering and codefendant Mitchell Binion, and A.D. drove D.J. to the meeting. D.J. brought 

a gun because he was concerned 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 returned to R.V.'s vehicle. R.V. told Moering to "go get it" and "draw 

down," which Binion 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.
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¶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 The State charged Moering with first-degree murder, a class 

one dangerous felony (Count 1); aggravated assault, a class three dangerous 

felony (Count 2); and two counts of attempted armed robbery, class three 

dangerous felonies (Counts 3-4). After a fourteen-day trial, the jury 

convicted Moering as charged. The superior court sentenced Moering to 

the following terms 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 served concurrently with Count 1; and Count 4, 11.25 

years served consecutively to Count 1 and concurrently with Count 2.

Moering timely appealed, and we 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-Included Offense Instruction. 

¶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 requires that a jury instruction be given, 

only when it is lesser included [and] the evidence is sufficient to support 

giving the instruction." Id. "[A]ttempted theft is a lesser-included offense 

of attempted robbery . . . ." Id. 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 resistance to such 

person taking or retaining property." A.R.S. § 13-1902(A). To prove armed 

robbery, the State must show that when committing a robbery, the person 

used or threatened to use a deadly weapon. A.R.S. § 13-1904(A). "The 
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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, the

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 State 

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 scale. 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 stated

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 right after this statement,

Binion again confirmed that he saw Moering pull his firearm on A.D. and 

order him to surrender the marijuana 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, without corroboration, is not sufficient" to receive 

lesser-included instruction). Binion did not see or know when D.J. drew his 

gun. He also immediately clarified that he observed Moering draw 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. He watched Moering and Binion leave and then return to the 

victims' car. He saw Moering pull a semiautomatic pistol out, "rack the 
STATE v. MOERING

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slide," point it at A.D., and yell for A.D. to "[h]and it over." He 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, "give me the weed." A.D. yelled "gun" 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] person . . . 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." Wall, 212 Ariz. at 3, ¶ 14. 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 suggests that "[he]

did not make any threat." But all three witnesses testified that Moering 

pointed his gun at A.D. to coerce surrender of the marijuana, and this 

evidence satisfies the threat element. See State v. Garza Rodriguez, 164 Ariz. 

107, 112 (1990) ("[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 

required because Binion testified 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 intentions 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 known

their plan.
STATE v. MOERING

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¶21 Moering's reliance on State v. Celaya 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 250-51. Surveillance agents watched 

the undercover agent give Celaya the money and saw Celaya 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. Our 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 given 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. No reasonable view of the evidence presented at 

Moering's trial could lead a jury to find he peaceably 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 testimony conflicted 

enough with the State's version of the facts for a robbery charge that the

jury could reasonably conclude no force or fear was present. Id. at 195-96.

Our supreme court held that a defendant is entitled to a lesser-included 

theft instruction for 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 conflicting versions of facts in 

Dugan are not present here. The evidence clearly established Moering's 

threatening use of a gun and proved the "distinguishing element." Id.; see 

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

¶23 Accordingly, the 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 robbery, which the

jury rejected. The jury's rejection of the lesser-included offense made any 

presumed error harmless. See State 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 lesserincluded crimes."); see also State v. White, 144 Ariz. 245, 247 (1985) ("[B]y 

finding 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

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II. Self-Defense Instruction.

¶24 Moering contends that the superior court erred by instructing

the jury that it could consider his self-defense claim 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. § 13-404(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. 87, 90, ¶ 14 (2010) (citation omitted). "The 

'slightest evidence' is a low standard that has been defined in the selfdefense 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 supported 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. Id. at 90, ¶ 14; see A.R.S. § 13-

404(A). The jury rejected Moering's defense.

¶27 But Moering drew his weapon first. The uncontroverted 

evidence established that Moering pulled and racked his gun to demand 

the marijuana. See King, 225 Ariz. at 90-91, ¶¶ 14-15, 17. Even in 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 failed to argue that he suffered prejudice. The 

jury was instructed and expressly rejected self-defense on the aggravated
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assault 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 any 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 selfdefense 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 Moering's convictions 

and sentences.