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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 TIMOTHY JAMES HAUPERT, Appellant.

                             No. 1 CA-CR 19-0174
                               FILED 1-02-2020


          Appeal from the Superior Court in Maricopa County
                       No. CR2018-119275-001
         The Honorable Annielaurie Van Wie, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Casey Ball
Counsel for Appellee

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



                      MEMORANDUM DECISION

Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Kent E. Cattani and Chief Judge Peter B. Swann joined.


C R U Z, Judge:

¶1           Timothy James Haupert (“Haupert”) appeals his conviction
and sentence for second-degree burglary. Haupert argues that the superior
court committed fundamental, prejudicial error by failing to define for the
jury the element of “theft” contained in the offense of second-degree
burglary. For the following reasons, we affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2             On April 17, 2018, around 3:00 p.m., victim K.M. returned
home from work. The front door was open. After she entered, she saw that
the house was in a disturbed state that was much different from how she
had left it that morning, and she soon found Haupert sleeping in her bed.
Neither K.M. nor her boyfriend, J.H., who also lived at the home, knew
Haupert, and he did not otherwise have permission to be there. Haupert
had moved numerous items (including jewelry and medical marijuana)
around the house. He had eaten part of a rotisserie chicken. Haupert had
K.M.’s medical marijuana pipe in his pocket. Following his arrest, Haupert
initially told law enforcement that he thought the house belonged to a
friend but then later stated he believed he was permitted to be there because
the house was for sale.

¶3           The State charged Haupert with burglary in the second
degree, a Class 3 felony, and possession of drug paraphernalia, a Class 6
felony. Following a five-day trial, a jury convicted Haupert of the burglary
charge but acquitted him of possession of drug paraphernalia. Haupert
admitted to seven prior felony convictions as the State had alleged. The
superior court sentenced Haupert to a term of ten years’ imprisonment, and
he timely appealed.

                              DISCUSSION

¶4            Haupert’s only argument is that the superior court’s failure to
define “theft,” which is an element of second-degree burglary, resulted in
fundamental error. See Ariz. Rev. Stat. § 13-1507(A) (“A person commits


                                     2
                            STATE v. HAUPERT
                            Decision of the Court

burglary in the second degree by entering or remaining unlawfully in or on
a residential structure with the intent to commit any theft or any felony
therein.” (emphasis added)). Haupert did not object to the final jury
instructions and did not request an additional instruction to define “theft.”
We thus review the issue for fundamental, prejudicial error. State v.
Escalante, 245 Ariz. 135, 138, ¶ 1 (2018).

¶5             The superior court correctly instructed the jury that Haupert
committed second-degree burglary if he “entered or remained unlawfully
in or on a residential structure . . . with the intent to commit any theft or
felony therein.” The superior court further provided the jury with
definitions for “with intent to,” “enter or remain unlawfully,” and
“residential structure.” Our supreme court has held that a superior court’s
failure to define “theft,” as it is used in a burglary instruction, is not
fundamental error. State v. Forde, 233 Ariz. 543, 564-65, ¶ 82 (2014); see also
State v. Belyeu, 164 Ariz. 586, 590 (App. 1990) (holding that because “theft is
a common term which, when invoked as the basis for a burglary conviction,
need not be defined [and] . . . [a] trial court’s failure to define the elements
of theft [does] not constitute fundamental error”). Therefore, Haupert’s
argument fails.

                               CONCLUSION

¶6            We affirm Haupert’s conviction and sentence.




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

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