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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                         JIMMY GARCIA, Appellant.

                             No. 1 CA-CR 19-0097
                              FILED 1-30-2020


             Appeal from the Superior Court in Yuma County
                        No. S1400CR201800657
                 The Honorable Roger A. Nelson, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Nicholas Chapman-Hushek
Counsel for Appellee

Yuma County Public Defender’s Office, Yuma
By Cynthia Brubaker
Counsel for Appellant
                            STATE v. GARCIA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Jennifer B. Campbell delivered the decision of the Court, in which
Presiding Judge Paul J. McMurdie and Judge Kent E. Cattani joined.


C A M P B E L L, Judge:

¶1           Garcia appeals his conviction and sentence for third-degree
burglary, arguing that the evidence presented at trial was insufficient to
support his conviction. For reasons that follow, we affirm.

                             BACKGROUND

¶2             The burglary occurred at a property located in Yuma,
Arizona. Two brothers occupied the property, which housed two
businesses and a residence. One brother owned and operated a computer-
repair shop from one of the buildings on the property. The other brother,
the victim, operated a carpet-cleaning business from the other building,
which doubled as his residence. The businesses shared a driveway ending
at a chain-link fence that opened into a shared concrete pad, or common
area. The entire property was enclosed by either the fence, the business’
walls or concrete walls topped with barbed wire. Officer Jeffrey Ross
testified that the yard was akin to a secure compound. A carport extended
from the carpet-cleaning business to inside the yard where the victim
parked his van and bicycle. He also stored commercial equipment under
the carport, including jacks and hoses.

¶3            One day the victim left the gate open while he went grocery
shopping. Garcia entered the yard through the open gate, took the victim’s
bicycle from underneath the carport, and quickly walked the bicycle up the
driveway. The victim returned to find Garcia attempting to take his bicycle.
In response, he drew his firearm and ordered Garcia to the ground. The
victim then asked Garcia what he was doing with the bicycle. Garcia
claimed that the bicycle was laying against the trash can, and that he took
it because he was looking for trash to sell. The victim called the police, and
Garcia was arrested.

¶4           Garcia was charged with third-degree burglary. At the
conclusion of the State’s case, Garcia moved for a judgment of acquittal
based on Arizona Rule of Criminal Procedure (“Rule”) 20, arguing, among



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                             STATE v. GARCIA
                            Decision of the Court

other things, that the yard was not a fenced commercial or residential yard
under the burglary statute. The superior court denied Garcia’s motion,
finding that the yard was a “fenced commercial yard” and that there was
“substantial evidence by which a jury could return a verdict of guilty.” The
jury found Garcia guilty as charged. The court sentenced Garcia to 1.5 years
of imprisonment. This timely appeal followed.

                                DISCUSSION

¶5            Garcia challenges the sufficiency of the evidence underlying
his conviction. He argues that he did not enter a “fenced commercial yard”
within the meaning of A.R.S. § 13–1501(4) (defining commercial yard) and
A.R.S. § 13–1506(A)(1) (defining third-degree burglary). He contends (1)
that the yard was not “fenced” because the barrier enclosing the yard did
not prevent common use, and (2) that the State failed to meet its burden to
prove that the yard was “commercial.”

¶6            We review claims of insufficient evidence de novo. State v.
West, 226 Ariz. 559, 562, ¶ 15 (2011). We examine the evidence in the light
most favorable to sustaining the verdict and resolve all reasonable
inferences against the defendant. State v. Rienhardt, 190 Ariz. 579, 588–89
(1997). Sufficient evidence may be direct or circumstantial and “is such
proof that reasonable persons could accept as adequate” to “support a
conclusion of defendant’s guilt beyond a reasonable doubt.” State v.
Borquez, 232 Ariz. 484, 487, ¶¶ 9, 11 (App. 2013). “To set aside a jury verdict
for insufficient evidence it must clearly appear that upon no hypothesis
whatever is there sufficient evidence to support the conclusion reached by
the jury.” State v. Arredondo, 155 Ariz. 314, 316 (1987). In evaluating the
sufficiency of the evidence, we test the evidence “against the statutorily
required elements of the offense,” State v. Pena, 209 Ariz. 503, 505, ¶ 8 (App.
2005), and “do not reweigh the evidence to decide if we would reach the
same conclusions as the trier of fact.” Borquez, 232 Ariz. at 487, ¶ 9 (citation
omitted).

¶7              “The primary aim of statutory construction is to find and give
effect to legislative intent.” UNUM Life Ins. Co. of Am. v. Craig, 200 Ariz. 327,
329–30, ¶ 11 (2001). “We look first to the statute’s language because we
expect it to be the best and most reliable index of a statute’s meaning.” State
v. Hinden, 224 Ariz. 508, 510, ¶ 9 (App. 2010) (internal quotation omitted).
“If the language is plain, we need look no further[,]” and we apply it
“unless application of the plain meaning would lead to impossible or
absurd results.” State v. Williams, 175 Ariz. 98, 100 (1993); Bilke v. State, 206
Ariz. 462, 464, ¶ 11 (2003).


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                              STATE v. GARCIA
                             Decision of the Court

¶8               “A person commits burglary in the third degree
by . . . [e]ntering or remaining unlawfully in or on a nonresidential
structure or in a fenced commercial or residential yard with the intent to
commit any theft or any felony therein.” A.R.S. § 13-1506(A)(1). A “fenced
commercial yard” is a “unit of real property that is surrounded completely
by fences, walls, buildings or similar barriers, or any combination of fences,
walls, buildings or similar barriers, and that is zoned for business
operations or where livestock, produce or other commercial items are
located.” A.R.S. § 13-1501(4).

¶9             In State v. Lewis, this Court examined whether sufficient
evidence supported a felony-murder conviction that was based on the
predicate felony of third-degree burglary. 236 Ariz. 336, 343, ¶ 25 (App.
2014). There, the defendant argued that the yard at issue was not enclosed
within the meaning of the burglary statute because the gate was “rarely if
ever closed,” “ratty,” and “broken down.” Id. at 346, ¶ 41. The court
concluded that the yard was enclosed because “the existence of a barrier,
not its quality, is what the fact-finder must determine to decide whether a
yard is ‘enclosed’ under § 13–1501(5).” Id. at 346, ¶ 42. Looking to a
dictionary, it stated that to “enclose” is “’[t]o surround on all sides; close in’
and ‘[t]o fence in so as to prevent common use.’” Id. (citing The American
Heritage Dictionary 587 (5th ed.2011)). The court determined that a yard was
enclosed despite having an open or ratty fence so long as the fence was
“sufficient to prevent common use of the . . . yard.” Id. at 346, ¶ 42.

¶10           Sufficient evidence supports Garcia’s conviction because the
yard he entered was a “fenced commercial yard” within the meaning of
Arizona’s third-degree burglary statute. A.R.S. § 13-1501(4) instructs that a
fenced commercial yard is one “surrounded completely by fences, walls,
buildings or similar barriers, or any combination of fences, walls, buildings
or similar barriers . . . .” That is precisely what we have here. Evidence at
trial demonstrated that the property was surrounded on all sides by either
fencing, the business’ walls, or concrete walls topped with barbed wire.
Described as a secure compound, the fence at issue here was more complete
than the barrier we found to adequately constitute a “fence” in Lewis.
Because the plain language of the burglary statute makes clear that the yard
was “fenced” within the statute’s meaning, we need look no further.

¶11           Garcia contends that the yard was not “fenced” because the
victim’s business and residence shared a common area with his brother’s
business. Therefore, the barrier enclosing the yard did not satisfy the
standard we established in Lewis because it did not prevent common use of
the yard. Garcia misconstrues Lewis’s holding. As a threshold matter, the


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                             STATE v. GARCIA
                            Decision of the Court

issue addressed in Lewis was whether the term “fenced” applies to both
“commercial” and “residential” yards under A.R.S. § 13-1506. Lewis, 236
Ariz. at 344, ¶ 31. The discussion of what makes a yard “fenced” was
material only to the question of whether giving an erroneous jury
instruction was harmless error. Id. at 344–45, ¶ 25, 38.

¶12           Further, Garcia misunderstands the dictum from Lewis
advising that a fence must be sufficient to prevent common use. Garcia
appears to interpret this requirement such that any yard that includes a
shared or common area, like the yard, is excluded from the burglary statute
because, by definition, a barrier enclosing a common area does not prevent
common use. However, the “common use” described in Lewis that a “fence”
must be sufficient to prevent does not include use by authorized persons,
like business owners and their customers. Instead “common use” in the
context of the burglary statute refers to use by the general public. In fact,
the same dictionary from which the Lewis court extracted the definition of
“enclosed” variously defines “common” as “[o]f or relating to the
community as a whole; public . . . .” Common, American Heritage Dictionary
(5th ed. 2011) (emphasis added). Merriam-Webster similarly defines
“common” as “of or relating to a community at large: public.” Common,
Merriam-Webster’s Collegiate Dictionary (11th ed. 2014) (emphasis added).
Adopting Garcia’s understanding of “common use” would violate
principles of statutory construction and lead to the absurd result that any
commercial yard used by co-tenants is definitionally excluded from the
burglary statute.

¶13            Conversely, Garcia argues that construing “fenced
commercial or residential yard” under the burglary statute to include
fenced yards enclosing more than a single commercial or residential
structure would lead to the absurd result that a homeowner in a gated
community who took an apple from a neighbor’s yard would be considered
a felon. This concern lacks merit. As a homeowner in the gated community,
the defendant in Garcia’s hypothetical would have lawfully entered the
fenced area. Therefore, they could not be guilty of burglary. As to Garcia’s
argument regarding to what extent fenced “apartment complexes,
condominium projects, duplex apartments and the like” may “be brought
within the ambit of the statute,” that issue is not before us. “His distress lies
in problems which at this stage are imaginary. We will not render advisory
opinions anticipative of troubles which do not exist; may never exist; and
the precise form of which, should they ever arise, we cannot predict.”
Velasco v. Mallory, 5 Ariz. App. 406, 410–11 (1967).




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                            STATE v. GARCIA
                           Decision of the Court

¶14            Garcia concludes with the argument that the State failed to
meet its burden to prove that the yard was a “commercial” yard because
the State did not provide direct evidence that the property was zoned for
business operations. However, A.R.S. § 13-1501(4) provides that a fenced
yard is “commercial” where it “is zoned for business operations or where
livestock, produce or other commercial items are located.” (Emphasis added).
Evidence at trial showed that the victim stored equipment used for his
carpet-cleaning business in the yard, including jacks and hoses. State v.
Patterson, 21 Ariz. App. 136, 137 (1973) (Commercial items are “goods
whose ultimate purpose is the furtherance of a business or commercial
activity as distinguished from a purely private activity.”). Accordingly, the
State met its burden to prove that the yard was “commercial” in nature.

                              CONCLUSION

¶15          Because the State presented sufficient evidence to prove that
Garcia committed burglary of a fenced commercial yard, we affirm his
conviction and sentence.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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