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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

               ABDIHAKIM NUMAN HASSAN, Appellant.

                             No. 1 CA-CR 14-0539
                               FILED 7-30-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-102965-001
                 The Honorable Hugh E. Hegyi, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Spencer D. Heffel
Counsel for Appellant



                       MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge Michael J. Brown joined.
                           STATE v. HASSAN
                           Decision of the Court

G E M M I L L, Judge:

¶1            Abdihakim Numan Hassan appeals from his conviction and
sentence for burglary in the second degree, a class three felony. Hassan’s
counsel filed a brief in compliance with Anders v. California, 386 U.S. 738
(1967), and State v. Leon, 104 Ariz. 297 (1969), stating that he has searched
the record and found no arguable question of law and requesting that this
court examine the record for reversible error. Hassan filed a pro se
supplemental brief in accordance with State v. Clark, 196 Ariz. 530, 537, ¶ 30
(App. 1999). For the following reasons, we affirm his conviction and
sentence.

                 FACTS AND PROCEDURAL HISTORY

¶2            “We view the facts and all reasonable inferences therefrom in
the light most favorable to sustaining the convictions.” State v. Powers, 200
Ariz. 123, 124, ¶ 2 (App. 2001). On January 17, 2013, D.E. and her family
were on vacation at the Legacy Golf Resort (“the Resort”) in Phoenix,
Arizona. Late that evening, after she and her family had gone to bed, D.E.
heard a door slam in the suite. Minutes later, a resort security guard
informed her that someone had broken into the suite. D.E realized that
someone had gone through her purse and that money was missing from it.

¶3            Security guard K.B. was on duty at the Resort that night when
he saw someone walking near the back of the Resort property. He
witnessed a man walking around D.E.’s suite and rummaging through a
bag. K.B. pursued the man, whom he identified at trial as Hassan, and
finally caught him one building away from D.E.’s suite. The Resort called
Phoenix Police, who arrived at the scene and took custody of Hassan.
Hassan apologized for his actions and told the police that the money he had
in his pocket belonged to D.E. The State filed a complaint against Hassan,
and on February 22, he was indicted by a Maricopa County grand jury on
one count of second-degree burglary.

¶4              On March 4, Hassan pled not guilty to the burglary charge.
Prior to trial, Hassan was afforded several opportunities to enter into a plea
agreement with the State. On January 9, 2014, Hassan was present at a plea
hearing and Donald advisement, at which the State presented its final plea
offer of a mitigated, 3.3 year term in the Department of Corrections,
followed by supervised probation. Hassan rejected the offer and chose to
proceed with trial.




                                      2
                            STATE v. HASSAN
                            Decision of the Court

¶5            At trial, the jury found Hassan guilty of second-degree
burglary. After a trial on aggravating factors, the jury also found the State
had proven two aggravators: 1) Hassan committed the crime for the
purpose of pecuniary gain; and 2) Hassan was on release under community
supervision at the time of the crime. At a sentencing hearing on July 18,
2014, the court sentenced Hassan to the presumptive term of 6.5 years’
incarceration, with credit for 401 days served.

¶6            Hassan appeals his conviction and sentence. This court has
jurisdiction under Article 6, Section 9, of the Arizona Constitution and
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031 and
13-4033.

                               DISCUSSION

¶7            In his supplemental brief, Hassan makes four arguments that
his conviction should be overturned. We address each in turn.

I.     Sufficiency of the Evidence

¶8            First, Hassan argues that there was insufficient evidence
presented at trial to support a burglary conviction. He asserts that the jury
was never presented with evidence that the hotel suite was a “residential
area,” as defined by the burglary statute, and that no evidence shows that
anything of value was stolen from the suite. We review the sufficiency of
the evidence to determine whether there is substantial evidence to support
the jury’s verdict. State v. Payne, 233 Ariz. 484, 507, ¶ 76 (2013). Reversible
error based on insufficient evidence “occurs only when there is a complete
absence of probative facts to support the conviction.” State v. Soto-Fong, 187
Ariz. 186, 200 (1996) (quoting State v. Scott, 113 Ariz. 423, 424–25 (1976)).

¶9             At trial, D.E. testified that her family was at the Resort for
lodging during a family vacation. Arizona’s criminal code defines a
“[r]esidential structure” as “any structure . . . permanent or temporary, that
is adapted for both human residence and lodging whether occupied or not.”
A.R.S. § 13-1501(11). Sufficient evidence existed to support the jury’s
determination that the suite was a residential structure, and we therefore
reject Hassan’s argument.

¶10          Hassan’s claim that there was insufficient evidence to prove
that anything of value was taken from the suite is similarly unpersuasive.
The charge of second-degree burglary does not require proof that a theft
was actually committed while the perpetrator was unlawfully in or on a


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                               STATE v. HASSAN
                               Decision of the Court

residential structure. See A.R.S. § 13-1507(A). Rather, it requires only that
the perpetrator have the “intent to commit” a theft or felony therein. Id.
Testimony at trial indicated that, at a very late hour of the night, Hassan
entered the suite uninvited. Once inside, he began rummaging through a
bag located in the suite. Further, the victim and the security officers
testified that Hassan did in fact take some amount of money, which
belonged to D.E., from the suite. Even if it is unclear how much money was
taken, if any at all, there is sufficient evidence to conclude that Hassan
entered the suite with the intent to commit a theft once inside. We therefore
find that sufficient evidence existed to support the jury’s verdict.

II.    Courtroom Identification of Defendant

¶11           Hassan also argues that the prosecution made an in-court
identification of Hassan as the defendant in a way that violated his due
process rights. Because no objection was made to the prosecutor’s
statements during trial, we review for fundamental error. State v.
Henderson, 210 Ariz. 561, 607, ¶ 19 (2005).

¶12         At trial, the prosecutor asked victim D.E. whether she
recognized Hassan:

       [THE PROSECUTION]: The defendant that’s charged in this
       case is sitting at Defense table. Do you recognize either of the
       parties that are sitting at the table?

       [D.E.]: No, I do not.

       [THE PROSECUTION]: Did either of those parties have
       permission to be in your hotel room on the night of January
       16th into the morning of January 17th?

       [D.E.]: No, they did not.

¶13          Hassan argues that through this line of questioning, the
prosecutor “told the victim that [Hassan] was the defendant” in violation
of his due process rights. We decline to hold that referring to Hassan as
“the defendant” was inappropriate. The prosecutor made no statement of
his personal belief in Hassan’s guilt, see, e.g., State v. Hernandez, 170 Ariz.
301, 307 (App. 1991), nor did his identification of Hassan as simply “the
defendant” improperly suggest to the jury that Hassan was the actual
perpetrator of the crime alleged. Furthermore, the prosecutor’s questions



                                        4
                           STATE v. HASSAN
                           Decision of the Court

were presumably intended to prove that the defendant did not have
permission to be in the hotel room in the first place. On this record,
therefore, we find no error in the prosecution’s question and identification.1

III.   Jury Instructions

¶14            Next, Hassan argues that the trial court erred when it declined
to instruct the jury on criminal trespass as a lesser included offense of
burglary. After closing arguments, Hassan renewed his request that the
court include an instruction on criminal trespassing in the final jury
instructions, arguing that the jury had heard conflicting testimony as to the
amount of money actually stolen and returned to the victim. Although the
State disagreed with Hassan’s argument and characterization of the
evidence, it agreed that an instruction on criminal trespass would be
appropriate under the circumstances. Because there was no objection from
the State, the court initially agreed to include the requested instruction.

¶15           Upon further study, the court determined that the proposed
instruction was not appropriate in light of State v. Malloy, 131 Ariz. 125
(1981), which held that criminal trespass is not a lesser included offense of
burglary. Accordingly, the court ultimately declined to instruct the jury on
criminal trespass. Hassan noted his objection. We review for abuse of
discretion a court’s refusal to give a requested jury instruction. State v.
Dann, 220 Ariz. 351, 363–64, ¶ 51 (2009) (citing State ex rel. Thomas v.
Granville, 211 Ariz. 468, 471, ¶ 8 (2005)). We review de novo, however,
whether one crime is a lesser included offense of another. State v. Breed, 230
Ariz. 462, 462, ¶ 4 (App. 2012).

¶16            Generally, a defendant is entitled to receive instructions on
any theory of a case supported by the evidence, State v. Valenzuela, 194 Ariz.
404, 405, ¶ 2 (1999), and “all offenses necessarily included in the offense
charged” must be submitted in a verdict form for the jury’s consideration,
Ariz. R. Crim. P. 23.3. A jury should be instructed on a lesser included
offense if it could rationally find that, although the evidence did not
support all the elements of the crime charged, “all the elements of another
or other lesser offenses had been [proven].” Malloy, 131 Ariz. at 129. An
offense is “lesser included” if the more serious offense cannot be committed


1 Because we hold there was no error, we also reject Hassan’s argument
that the trial court should have conducted an evidentiary hearing to
determine whether the allegedly suggestive identification prejudiced
Hassan.


                                      5
                           STATE v. HASSAN
                           Decision of the Court

without commission of the less serious offense. State v. Wall, 212 Ariz. 1, 3,
¶ 14 (2006).

¶17            In Malloy, our supreme court held that “[c]riminal trespass is
not necessarily a lesser included offense of burglary.” 131 Ariz. at 131. As
the court explained, under A.R.S. § 13-1503(A), criminal trespass requires
that the perpetrator “knowingly” enter or unlawfully remain in a
nonresidential structure. Id. at 130. Second-degree burglary, as it is defined
in A.R.S. § 13-1507, has no such requirement. Instead, it requires that the
perpetrator enter a structure unlawfully “with the intent to commit any
theft or felony therein.” A.R.S. § 13-1507(A). In Malloy, the court explained
that the word “knowingly” distinguishes criminal trespass from burglary
by adding an additional, distinct element: the prosecution must prove that
the defendant was aware of the unlawful nature of his entry. 131 Ariz. at
130–31. Therefore, it is not a lesser-included offense of burglary.

¶18          Accordingly, the trial court was not required to instruct the
jury on criminal trespass. See id. at 129. The trial court did not abuse its
discretion when it declined to give Hassan’s proposed jury instruction.

IV.    Grand Jury Proceedings

¶19          Finally, Hassan argues that he was denied due process at the
grand jury proceeding. Hassan claims the prosecutor did not adequately
inform or educate the grand jury as to the applicable law and failed to
present sufficient evidence as to the critical elements of the charged
offenses.

¶20             An error committed during grand jury proceedings, even if it
may have impacted the grand jury’s charging decision, is rendered moot by
a trial jury’s subsequent guilty verdict. State v. Atwood, 171 Ariz. 576, 617–
18 (1992) (disapproved on other grounds by State v. Nordstrom, 200 Ariz. 229
(2001); United States v. Mechanik, 475 U.S. 66, 73 (1986) (explaining that a
jury’s guilty verdict makes any error in its charging decision harmless). In
this case, even assuming for discussion that the prosecution failed to
properly inform the grand jury at the indictment proceedings, any error
that may have occurred was rendered harmless by the jury’s guilty verdict
at trial. We therefore reject Hassan’s argument.




                                      6
                           STATE v. HASSAN
                           Decision of the Court

                              CONCLUSION

¶21            Having considered both Hassan’s and defense counsel’s
briefs and having examined the record for reversible error, see Leon, 104
Ariz. at 300, we find none. The evidence presented supports the conviction
and the sentence imposed falls within the range permitted by law. As far
as the record reveals, Hassan was represented by counsel at all stages of the
proceedings, and these proceedings were conducted in compliance with his
constitutional and statutory rights and the Arizona Rules of Criminal
Procedure.

¶22           Pursuant to State v. Shattuck, 140 Ariz. 582, 584–85 (1984),
counsel’s obligations in this appeal have ended. Counsel need do no more
than inform Hassan of the disposition of the appeal and his future options,
unless counsel’s review reveals an issue appropriate for submission to the
Arizona Supreme Court by petition for review. Hassan has thirty days from
the date of this decision in which to proceed, if he desires, with a pro se
motion for reconsideration or petition for review.

¶23          The conviction and sentence are affirmed.




                                 :RT




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