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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    JOHN DOUGLAS ALLEN, Appellant.

                             No. 1 CA-CR 18-0206
                               FILED 3-21-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2016-156181-001
                The Honorable Michael W. Kemp, Judge

   REVERSED IN PART, MODIFIED IN PART; REMANDED FOR
                       RESENTENCING


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Eric Knobloch
Counsel for Appellee

Maricopa County Public Defender's Office, Phoenix
By Paul J. Prato
Counsel for Appellant
                             STATE v. ALLEN
                            Decision of the Court



                       MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jennifer M. Perkins joined.


J O H N S E N, Judge:

¶1           John Douglas Allen appeals his convictions and sentences for
third-degree burglary and theft. For the reasons that follow, we reverse the
burglary conviction, modify the theft conviction and remand for
resentencing on the theft conviction.

             FACTS AND PROCEDURAL BACKGROUND

¶2            A grand jury indicted Allen on charges of third-degree
burglary, a Class 4 felony, and theft, a Class 6 felony.

¶3             According to the evidence at the resulting trial, the owner of
a black GMC Sierra truck had backed the truck into a parking space in a
motel parking lot, leaving approximately one to two feet between the back
of the truck and a row of bushes lining the parking lot. Before dawn the
next morning, police responded to a report from a security guard at an
amusement park just north of the motel parking lot. The guard reported
seeing a suspicious white truck, later identified as Allen's truck, in the alley
west of the amusement park. The guard saw someone get out of the truck,
walk away and never return. He saw a second individual, likely Allen, exit
the driver's side of the truck, walk toward the motel parking lot, and look
through the row of bushes for less than five minutes.

¶4              An officer found Allen's truck in the alley, unoccupied with
its keys still in the ignition. Allen then ran up from the direction of the
motel and started speaking with the officer. A second officer arrived and
noticed a black tailgate lying in Allen's truck bed. When asked about the
tailgate, Allen admitted he "took" it and planned to sell it. Officers
eventually determined the tailgate had been removed from the black truck
parked at the motel. They located the owner of the truck, who did not know
Allen and had not given him permission to take the tailgate.

¶5              A crime scene specialist took photographs and processed the
tailgate for latent fingerprints ("prints"). The specialist lifted what appeared
to be four prints from the left and lower center and left upper portions of


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                             STATE v. ALLEN
                            Decision of the Court

the exterior of the tailgate. The specialist used arrows to document the
orientation of the prints, noting all of them were pointing toward the top,
right, or left side edges of the tailgate. The specialist processed the interior
of the tailgate for prints with "negative results." Other than the tailgate, the
specialist did not look for prints anywhere else on the truck.

¶6           A forensic analyst identified one of the prints from the tailgate
as matching Allen's right middle finger. Per the specialist's notes, the print
that matched had been lifted from the lower left portion of the tailgate's
exterior and was oriented so that it appeared that Allen's finger was
extended toward the right edge of the tailgate. The analyst did not look to
see whether any of the other three prints matched Allen's.

¶7             An officer spoke with a representative from a vehicle
dealership; he also reviewed the GMC Sierra owner's manual instructions
on tailgate removal. The printed instructions, which were admitted in
evidence, were consistent with testimony about how to remove the tailgate
given by the truck's owner and the officer who placed the tailgate back on
the truck. By these accounts, removal requires the following: (1) use the
exterior latch to partially open the tailgate; (2) disconnect the cables on the
right and left sides of the tailgate by unlocking the cable clips from bolts
posted in the inner portion of the tailgate's side wall; (3) with the tailgate
halfway open, lift the right edge of the tailgate from the right lower pivot;
then (4) slide the tailgate to the right to release it from the left edge.

¶8             The officer testified the dealership representative told him
tailgates are typically valued at "approximately $1,000 or so," depending on
the paint, installation, and whether the tailgate had a back-up camera. The
victim did not file an insurance claim for replacement of the tailgate, which
lacked a back-up camera, and he did not know the value of the tailgate.

¶9            The jury convicted Allen of burglary and theft and the
superior court imposed concurrent sentences, the longest of which was six
years. Allen timely appealed. We have jurisdiction pursuant to Article 6,
Section 9 of the Arizona Constitution, and Arizona Revised Statutes
("A.R.S.") sections 12-120.21(A)(1) (2019), 13-4031 (2019) and -4033(A)
(2019).1




1      Absent material revision after the date of an alleged offense, we cite
the current version of a statute or rule.


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                             STATE v. ALLEN
                            Decision of the Court

                                DISCUSSION

A.     Insufficient Evidence Supports the Burglary Conviction.

¶10            Allen argues insufficient evidence supports his conviction of
third-degree burglary, contending the State failed to show he entered the
truck bed as defined by A.R.S. § 13-1501(3) (2019). We review de novo the
sufficiency of the evidence to support a conviction. State v. West, 226 Ariz.
559, 562, ¶ 15 (2011). "[T]he relevant question is whether, after viewing the
evidence in the light most favorable to the prosecution, any rational trier of
fact could have found the essential elements of the crime beyond a
reasonable doubt." Id. at ¶ 16 (quoting State v. Mathers, 165 Ariz. 64, 66
(1990)). We review the superior court's interpretation of statutes de novo.
State v. Pena, 235 Ariz. 277, 279, ¶ 5 (2014).

¶11            As relevant here, a person commits third-degree burglary by
"[e]ntering or remaining unlawfully in or on a nonresidential structure . . .
with the intent to commit any theft or any felony therein." A.R.S. § 13-
1506(A)(1) (2019). Rooted in common law, the statute defines "entry" as "the
intrusion of any part of any instrument or any part of a person's body inside
the external boundaries of a structure or unit of real property." A.R.S. § 13-
1501(3); see 3 Charles E. Torcia, Wharton's Criminal Law § 322, at 247 (15th
ed. 1995) ("There is an entry when any part of the defendant's person passes
the line of the threshold.").

¶12           A truck, including its bed, is a "structure" as defined by § 13-
1501(12). State v. Bon, 236 Ariz. 249, 253, ¶¶ 12, 15 (App. 2014). In Bon, we
held that reaching inside the bed of a truck constituted an entry, as
contemplated by § 13-1501(12). 236 Ariz. at 253, ¶¶ 13-15. We stated, "The
sides of the truck bed indicate the external boundary of that part of the
vehicle. And, reaching into the truck bed amounts to an entry." Id. at 253,
¶ 14. The question, therefore, is whether the State presented evidence to
show Allen entered the bed of the truck in removing the tailgate.

¶13            Here, the direct evidence showed only that Allen touched the
left side of the tailgate's exterior with his finger pointed toward the right
edge. No prints were found on the tailgate's latch, the inner frame, the side
wall of the truck or the tailgate's interior. Even if a rational jury could infer
that Allen removed the tailgate, the evidence (whether direct or
circumstantial) showed at most that to do so, he would have had to place
his hand in the tailgate's latch (located on the exterior of the tailgate) and
then disconnect the cables from the bolts affixed to the side wall of the truck
before dislodging the tailgate, first one side and then the other. Contrary to



                                       4
                             STATE v. ALLEN
                            Decision of the Court

the State's contention, he would not have had to climb into the bed of the
truck to remove the tailgate. Indeed, it is not reasonable to conclude that
someone would stand in the bed of a truck to remove its tailgate. From the
bed of the truck, releasing the exterior latch would require an awkward
reach over the top of the tailgate to pull down on the latch, and from there,
one would have to somehow hold the gate partially open with one hand
while releasing the cables, first one side and then the other. The only
reasonable position from which to remove the tailgate of the truck is while
standing outside and to the rear of the truck.

¶14           The State argues that even one approaching the tailgate from
the rear would have to breach the "external boundaries" of the truck bed to
unclip the two cables from the truck. See A.R.S. § 13-1501(3). But
photographs in evidence showed that the bolts to which the cables were
clipped were located on the interior side wall of the truck along the
geometric plane created by the closed tailgate. No evidence showed that
one would have to break that plane (i.e., reach inside the bed of the truck)
to unclip the cables.

¶15           The State's reliance on State v. Kindred, 232 Ariz. 611, 614, ¶ 9
(App. 2013), is misplaced. There, we held that the insertion of a pry bar into
the door jamb constituted entry under § 13-1501(3). 232 Ariz. at 614, ¶ 9.
We noted that "penetration into an outer barrier violates the home's
security" and "strongly suggests such penetration constitutes entry." Id. at
¶ 8. Notably, the evidence in Kindred showed the pry bar penetrated the
door jamb. Id. at 613, ¶ 2.

¶16           Nor do the out-of-state cases the State cites compel a different
outcome. In Commonwealth v. Burke, 467 N.E.2d 846, 847 (Mass. 1984), blood
on the defendant's hand showed he had reached through a broken window
into the home. The State also cites a pair of Texas cases, Ortega v. State, 626
S.W.2d 746 (Tex. Crim. App. 1981), and Williams v. State, 997 S.W.2d 415
(Tex. App. 1999), neither of which is on point. In Ortega, the defendant
pulled off the screen door to a home, thereby entering "into that part of the
house between the screen door and the wooden door." 626 S.W.2d at 747.
No such entry was present here. In Williams, the court reaffirmed that there
must be some "physical entry into the protected area" and upheld the
defendant's conviction upon evidence he was walking away from an open
garage door after having broken the structure's door frame. 997 S.W.2d at
417-18. Meanwhile, the same Texas court held in Griffin v. State, 815 S.W.2d
576 (Tex. Crim. App. 1991), that burglary does not occur when an item is
removed from the exterior of a vehicle: "The protection is to the interior or



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                             STATE v. ALLEN
                            Decision of the Court

enclosed part of the described object, be it a house, a building or a vehicle."
Id. at 579.

¶17           In short, the State failed to present sufficient evidence of entry
as contemplated by § 13-1501(3), an essential element of the offense. See
West, 226 Ariz. at 562, ¶¶ 15-16. Because insufficient evidence supports
Allen's conviction for third-degree burglary, we reverse the conviction.

B.     Improper Admission of Hearsay.

¶18            Allen further contends the admission of hearsay to establish
the value of the tailgate constituted error that impaired his theft conviction.
Because he failed to object to the evidence, we review for fundamental
error. State v. Escalante, 245 Ariz. 135, 140, ¶ 12 (2018) (clarifying
fundamental error review). To establish fundamental error, a defendant
bears the burden of "showing that (1) the error went to the foundation of
the case, (2) the error took from the defendant a right essential to his
defense, or (3) the error was so egregious that he could not possibly have
received a fair trial." Id. at 142, ¶ 21. If a defendant establishes fundamental
error under either prong one or two, he must make a separate showing of
prejudice. Id.

¶19           Though generally inadmissible, hearsay evidence admitted
without objection is "competent evidence admissible for all purposes." State
v. McGann, 132 Ariz. 296, 298-99 (1982); see Ariz. R. Evid. 801, 802. However,
we have held that admission of hearsay evidence as the sole proof of an
essential element of an offense constitutes fundamental error. McGann, 132
Ariz. at 299; see also State v. Allen, 157 Ariz. 165, 171 (1988) (admission of
hearsay that is "the only evidence of the details of the crime" constitutes
fundamental error).

¶20           A theft of property valued at more than $1,000 and less than
$2,000 is a Class 6 felony. A.R.S. § 13-1802(A)(1), (G) (2019). The value of
the property is an essential element of the offense and raises the offense
from a misdemeanor to a felony. Id. The State must prove the "fair market
value" of the stolen property at the time of the offense. A.R.S. § 13-
1801(A)(15) (2019); State v. Randle, 2 Ariz. App. 569, 570-71 (1966).

¶21            The State concedes the officer's testimony regarding the value
of the tailgate was improper hearsay but argues the jury could have used
its common sense in determining the value of the tailgate based on the
owner's testimony and photographs of the truck. The State thereby
contends that any error was not prejudicial.



                                       6
                             STATE v. ALLEN
                            Decision of the Court

¶22            We disagree. The owner did not testify about the value of the
tailgate. He only testified that he did not see the benefit of filing an
insurance claim, and photographs depicting the tailgate at the time of the
offense, without any reference to monetary value, do not demonstrate the
tailgate's value. Although we have held that jurors may use their common
sense in determining the value of stolen property, the State must present
some evidence to allow for such a finding. See State v. Grijalva, 8 Ariz. App.
205, 207 (1968) (jurors may not base their value determination solely on
speculation).

¶23           The impermissible hearsay evidence constituted the sole
proof of the tailgate's value, an essential element of the offense, and such
error went to the foundation of the theft conviction and prevented Allen
from receiving a fair trial on that charge. Escalante, 245 Ariz. at 142, ¶ 21.
Allen therefore has met his burden of showing fundamental error that
caused him prejudice. Id. In the absence of evidence that the tailgate was
worth $1,000 or more, we modify the judgment of conviction to reflect a
conviction of theft as a Class 1 misdemeanor, under § 13-1802(G), and
remand for resentencing. See State v. Corrales, 131 Ariz. 471, 473 (App. 1982).

                               CONCLUSION

¶24          For the foregoing reasons, we reverse the burglary conviction,
modify the theft conviction to reflect a judgment of conviction under § 13-
1802(G) and remand for resentencing on that conviction.




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




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