THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

NORRIS, Judge.

¶1 In September 2009, a grand jury indicted Michael Cordell O'Brien on one count of first-degree burglary, one count of robbery, one count of kidnapping by domestic violence, one count of endangerment by domestic violence, and two counts of aggravated assault by domestic violence for his conduct on August 27, 2009. After three days of trial and after the superior court instructed on the charged offenses as well as certain lesser-included offenses, such as theft and second-degree burglary, a jury found O'Brien guilty of robbery, a class four felony in violation of Arizona Revised Statutes ("A.R.S.") section 13-1902 (2010),1 and second-degree burglary (a lesser-included offense of first-degree burglary), a class three felony in violation of A.R.S. § 13-1507 (2010).2 O'Brien argues the evidence was insufficient to support his convictions for robbery and second-degree burglary. As we explain, we disagree.

DISCUSSION

I. Robbery

¶2 O'Brien first argues the State failed to present sufficient evidence he acted with "intent to deprive" the gun owner of his gun to support his robbery conviction. Although the robbery statute, A.R.S. § 13-1902(A), does not on its face require proof of "intent to deprive," O'Brien reasons such proof was required because (1) the court instructed the jury on theft as a lesser-included offense of robbery, (2) theft requires proof of "intent to deprive," A.R.S. § 13-1802(A)(1) (2010), and (3) by definition, a "greater offense cannot be committed without necessarily committing the lesser offense." State v. Wall, 212 Ariz. 1, 3, ¶ 14, 126 P.3d 148, 150 (2006) (quoting State v. Dugan, 125 Ariz. 194, 195, 608 P.2d 771, 772 (1980)). Thus, he argues we must set aside his robbery conviction because the evidence demonstrated he only intended to "disarm" the owner, not deprive the owner of his gun.

¶3 We reject this argument; but even if we were to accept the argument and read "intent to deprive"3 into the robbery statute, the State presented substantial evidence O'Brien acted with the requisite intent. State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989) (when reviewing challenges to sufficiency of the evidence, reviewing court does not reweigh evidence; rather, views it in light most favorable to sustaining jury's verdict, resolving all reasonable inferences against defendant); State v. Alvarado, 219 Ariz. 540, 542, ¶ 7, 200 P.3d 1037, 1039 (App. 2008) ("Reversible error based on insufficiency of the evidence occurs only where there is a complete absence of probative facts to support the conviction."); State v. Sharma, 216 Ariz. 292, 294, ¶ 7, 165 P.3d 693, 695 (App. 2007) (appellate court review of sufficiency of evidence limited to whether substantial evidence supports verdict).

¶4 At trial, O'Brien admitted he "snatched the gun" out of the hands of the gun owner. The gun owner and three eyewitnesses testified O'Brien had then taken the gun into the room where his children were sleeping, had picked up his infant daughter with one hand while holding the gun in his other hand, and had carried his daughter and the gun outside the home. The only witness who followed O'Brien outside testified O'Brien threw the clip and the gun after going outside the home. Although O'Brien disputed this testimony, it nevertheless constituted sufficient evidence he had withheld the owner's gun for a time period such that the owner lost "a substantial portion of its . . . usefulness or enjoyment," as the gun owner was unable to use the gun to protect himself and his home. A.R.S. § 13-1801(A)(4) (2010).

¶5 Although O'Brien does not directly challenge the sufficiency of the evidence for his robbery conviction, the record reflects the State presented sufficient evidence to demonstrate he committed each element of A.R.S. § 13-1902(A).4 O'Brien acknowledged he (1) "snatched the gun" (2) out of the gun owner's hand (3) against the owner's will after the owner pointed the gun at him. The owner and the only other witness to the confrontation testified O'Brien (4) "wrestl[ed]" with and "pushed" the owner to grab the gun. Moreover, O'Brien testified he "shrugged [the owner] off of [his] shoulder" when the owner tried to retrieve his gun, suggesting O'Brien (5) had used force against the owner "as a means of gaining control" of the gun. See A.R.S. § 13-1901(1) (2010). Although O'Brien disputed much of this evidence, credibility determinations are for the jury. State v. Dickens, 187 Ariz. 1, 21, 926 P.2d 468, 488 (1996). Thus, for the foregoing reasons, we affirm O'Brien's robbery conviction.

II. Second-Degree Burglary

¶6 O'Brien also challenges the sufficiency of the evidence to support his burglary conviction, arguing the State did not prove he committed the predicate felony of robbery because it did not demonstrate he intended to deprive the owner of his gun. Because sufficient evidence supports the robbery verdict, see supra ¶¶ 4-5, we reject this argument and affirm O'Brien's burglary conviction.

CONCLUSION

¶7 For the foregoing reasons, we affirm O'Brien's robbery and burglary convictions and sentences.

PETER B. SWANN, Presiding Judge, DANIEL A. BARKER, Judge concurring.