                              IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                 v.

                  BRUCE WAYNE O’LAUGHLIN JR.,
                          Appellant.

                      No. 2 CA-CR 2015-0134
                        Filed May 5, 2016


          Appeal from the Superior Court in Pima County
                       No. CR20140970001
          The Honorable Christopher C. Browning, Judge

                           AFFIRMED


                            COUNSEL

Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee

Steven R. Sonenberg, Pima County Public Defender
By Katherine A. Estavillo, Assistant Public Defender, Tucson
Counsel for Appellant
                      STATE v. O’LAUGHLIN
                        Opinion of the Court


                             OPINION

Judge Miller authored the opinion of the Court, in which Presiding
Judge Vásquez and Chief Judge Eckerstrom concurred.


M I L L E R, Judge:

¶1           After a jury trial, Bruce Wayne O’Laughlin Jr. was
convicted of burglary and possession of burglary tools, and
sentenced to concurrent prison terms totaling nine years. On
appeal, O’Laughlin contends the trial court erred by adding
“and/or” to the list of burglary tools on the verdict form and, in the
alternative, that the indictment was duplicitous. Although we
discourage the omission of a conjunction in a charging document
and the use of “and/or” in jury instructions to remedy the
ambiguity caused by the missing conjunction, in this case we find no
error and affirm.

                Factual and Procedural Background

¶2           “We view the facts in the light most favorable to
sustaining the jury’s verdicts.” State v. Guarino, 238 Ariz. 437, n.1,
362 P.3d 484, 486 n.1 (2015). In February 2014, a witness called 9-1-1
to report a burglary after she observed O’Laughlin and his
codefendant, Sandy McClure, engaging in suspicious behavior at her
neighbor’s home. They were standing in the open door of her
neighbor’s truck and had bicycles nearby. They then rode away
with O’Laughlin carrying a “briefcase . . . a box or something,”
across his chest. The responding officer searched the neighborhood
and found two bicycles on the sidewalk in front of a house a few
blocks away. As the officer exited his vehicle, he saw O’Laughlin
getting out of a truck parked in the driveway. McClure also stepped
out from behind another truck in the driveway. The owner of the
first truck gave the officer permission to look inside. The officer
found a briefcase and a bone-handled knife that matched the items
missing from the victim’s truck.




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                       STATE v. O’LAUGHLIN
                         Opinion of the Court

¶3           Police found a flashlight and one latex glove in
McClure’s pockets. Additional latex gloves were located in the first
truck underneath the middle console. O’Laughlin and McClure
were arrested and charged with three counts of third-degree
burglary and one count of possession of burglary tools, “to wit:
flashlight, knife, gloves.” McClure pleaded guilty and testified at
O’Laughlin’s trial. At the state’s request, two of the burglary
charges were dismissed as to O’Laughlin, and he was convicted and
sentenced as described above. This appeal followed.

                    Possession of Burglary Tools

Indictment and Verdict Form

¶4           O’Laughlin argues the lack of a conjunction in the
indictment’s list of burglary tools—“flashlight, knife, gloves”—
should have been read to mean “and”; therefore, the trial court erred
by adding “and/or” before “gloves” on the verdict form. In the
alternative, he argues that if “and/or” is the proper interpretation of
the indictment, it is duplicitous because there was a danger the
jurors were not unanimous as to which tool he possessed. We
generally review the trial court’s decisions regarding verdict forms
for an abuse of discretion,1 State v. Larin, 233 Ariz. 202, ¶ 29, 310 P.3d
990, 998-99 (App. 2013), and where, as here, no objection was made
to the allegedly duplicitous indictment before trial, we review for
fundamental, prejudicial error, see State v. Payne, 233 Ariz. 484, ¶ 80,
314 P.3d 1239, 1262-63 (2013). Ultimately, both issues raise a
question of statutory interpretation, which we review de novo. State
v. Brown, 217 Ariz. 617, ¶ 7, 177 P.3d 878, 881 (App. 2008).


      1The  state argues any error in the verdict forms was invited
because O’Laughlin’s objection was unclear. When the state
requested “and/or” be added to the forms, O’Laughlin responded,
“Notice is only given of flashlight, knife and gloves. He can argue
one or all.” Although the second sentence was arguably confusing,
it does not constitute invited error. See State v. Lucero, 223 Ariz. 129,
¶¶ 20-21, 220 P.3d 249, 256 (App. 2009) (party must take
“independent affirmative unequivocal action to initiate” error before
invited error rule applies).


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                       STATE v. O’LAUGHLIN
                         Opinion of the Court

¶5           We begin with the question of whether the indictment
was duplicitous because it guides our analysis of the other
arguments. A duplicitous indictment is one that on its face alleges
multiple distinct and separate offenses in one count. State v. Klokic,
219 Ariz. 241, ¶ 10, 196 P.3d 844, 846 (App. 2008). Duplicitous
indictments may prejudice a defendant by not providing adequate
notice of the charge to be defended, presenting the risk of a non-
unanimous jury verdict, and making impossible the precision
needed to assert double jeopardy in a later prosecution. State v.
Whitney, 159 Ariz. 476, 480, 768 P.2d 638, 642 (1989). An indictment
is not duplicitous, however, if a count alleges only one offense, even
if that offense may be committed in different ways. See State v.
Cotten, 228 Ariz. 105, ¶ 6, 263 P.3d 654, 657 (App. 2011); State v.
Paredes-Solano, 223 Ariz. 284, ¶¶ 5, 9, 222 P.3d 900, 903, 904 (App.
2009); State v. Winter, 146 Ariz. 461, 464-65, 706 P.2d 1228, 1231-32
(App. 1985), abrogated on other grounds by State v. Kamai, 184 Ariz.
620, 623, 911 P.2d 626, 629 (App. 1995); State v. Dixon, 127 Ariz. 554,
561, 622 P.2d 501, 508 (App. 1980); see also Andersen v. United States,
170 U.S. 481, 500-01 (1898) (indictment not duplicitous where
murder may have been accomplished by different means).

¶6            Possession of “burglarious instruments” has been
subject to criminal liability since territorial days, see Ariz. Pen. Code,
§ 424 (1901), but the parties cite to no cases, and our research
discloses none, that discuss whether A.R.S. § 13-1505 involves
separate offenses based on the nature or type of tool or a single
offense. 2 Nor does the language indicate whether possession of
multiple tools at the same time constitutes multiple crimes.3 One



      2 Section 13-1505(A) consists of separate paragraphs for
(1) “any explosive, tool, instrument or other article” and (2) “a motor
vehicle manipulation key or master key.” Because this case did not
involve any kind of key, we do not consider paragraph (2) in our
analysis.
      3“A  person commits possession of burglary tools” under § 13-
1505(A)(1) by “[p]ossessing any explosive, tool, instrument or other
article adapted or commonly used for committing any form of

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                      STATE v. O’LAUGHLIN
                        Opinion of the Court

indication of legislative purpose is its placement in the criminal
code—currently and in 1901—in a chapter addressing property
crimes such as trespass and burglary. See § 13-1505 (located in title
13, chapter 15, entitled “Criminal Trespass and Burglary”); Ariz.
Pen. Code, § 424 (1901) (located in title 13, entitled “Of Crimes
Against Property”). This shows the legislature considered it a crime
against property. Moreover, because the statute is directed at
preventing burglary using one or many tools, the allowable unit of
prosecution is unaffected by the number of tools. See State v. Jurden,
237 Ariz. 423, ¶ 14, 352 P.3d 455, 459-60 (App. 2015) (resisting arrest
statute in chapter with other crimes against state authority,
indicating allowable unit of prosecution was each arrest resisted
rather than each officer resisted), review granted (Ariz. Jan. 5, 2016).
The harm to be prevented is the property crime itself.

¶7             Several recent duplicity cases illustrate that the
distinction between a single-offense and multiple-offense statute
often relies on the harm resulting from the crime. In Paredes-Solano,
the defendant was charged with sexual exploitation of a minor
under A.R.S. § 13-3553 arising from acts described in paragraphs
(A)(1) and (A)(2) of that section. 223 Ariz. 284, ¶ 16, 222 P.3d at 906.
The state regarded the acts as describing a single offense, arguing to
the jury it did not have to differentiate between or agree on acts
described in (A)(1) versus (A)(2). Id. ¶ 14. Based on statutory
analysis and legislative history, we concluded the legislature
separated (A)(1) and (A)(2) acts in order to create two separate
offenses, albeit described in a single statute. Id. ¶¶ 9-15. Paragraph
(A)(1) involves harm to a child by creating a sexually exploitive
image, whereas (A)(2) involves perpetuating the harm by
distributing the image. Id. ¶ 10. Because the jury was permitted and
encouraged to reach non-unanimous decisions involving separate
offenses that were charged in a single count, the defendant’s right to
a unanimous verdict was violated. Id. ¶¶ 18, 22. That violation of a
constitutional right constituted fundamental and reversible error.
Id. ¶ 22, citing Ariz. Const. art. II, § 23.


burglary . . . and intending to use or permit the use of such an item
in the commission of a burglary.”


                                   5
                      STATE v. O’LAUGHLIN
                        Opinion of the Court

¶8           In contrast, State v. Delgado illustrates the lack of
duplicity when an offense is a single crime.4 232 Ariz. 182, ¶¶ 20-24,
303 P.3d 76, 82-83 (App. 2013). In that case, the defendant was
charged with aggravated assault pursuant to A.R.S. § 13-1204(B), a
subsection specifically addressing strangulation or suffocation. 232
Ariz. 182, ¶¶ 20-21, 303 P.3d at 82. There were three means of
committing the offense: intentionally, knowingly, or recklessly
causing physical injury; intentionally placing the other person in
reasonable apprehension of imminent physical injury; or, knowingly
touching another with intent to injure. Id. ¶ 21. This mirrors the
language of the simple assault statute, which has been interpreted as
listing three separate crimes. Id. ¶ 22. Unlike a simple assault,
however, where the harm could be injury, apprehension of injury, or
touching with intent to injure, see A.R.S. § 13-1203(A), there was a
single harm under § 13-1204(B)—impeding the normal breathing or
circulation of blood of another person. Delgado, 232 Ariz. 182, ¶¶ 22-
23, 303 P.3d at 82-83. The court held that § 13-1204(B) was a single
offense and the jury was not required to agree on the underlying
“‘form’” of assault. Delgado, 232 Ariz. 182, ¶ 24, 303 P.3d at 83.

¶9           Similarly, in Payne, 233 Ariz. 484, ¶¶ 80, 88, 314 P.3d at
1262, 1263, the defendant was charged with child abuse because he
allowed a child to starve to death or he failed to seek medical
attention. The court determined that each count of the indictment
charged just one crime of child abuse, “essentially by neglect,” and
“he was not entitled to a unanimous verdict on the manner in which
the act was performed.” Id. ¶ 90. Although there were multiple
factual scenarios charged, there was just one crime and therefore no
duplicity.5 Id. ¶¶ 88, 90.


      4 Delgado addresses a duplicitous charge rather than a
duplicitous indictment. See 232 Ariz. 182, ¶¶ 18, 24, 303 P.3d 76, 82,
83 (App. 2013), quoting Klokic, 219 Ariz. 241, ¶ 12, 196 P.3d at 847.
But the potential hazards of a non-unanimous jury verdict and
impossibility of pleading prior jeopardy remain the same in either
instance. Klokic, 219 Ariz. 241, ¶ 12, 196 P.3d at 847.
      5The Payne court relies in part on State v. Dann, 220 Ariz. 351,
¶¶ 76-81, 207 P.3d 604, 619-20 (2009). Payne, 233 Ariz. 484, ¶ 81, 314

                                  6
                       STATE v. O’LAUGHLIN
                         Opinion of the Court

¶10           Here, the purpose of the burglary tools statute is to
prevent a person who has formed the intent to commit burglary
from possessing any tool that will aid him in unlawfully entering a
structure to commit a theft or other felony. See State v. Brown, 37
P.3d 572, 583 (Haw. Ct. App. 2001) (“‘[T]he purpose of all [burglary
tools] statutes is to deter or prevent the commission of burglary and
related offenses by enabling enforcement authorities to act before
the prospective burglar has had the opportunity to gather his [or
her] tools, weapons, and plans and strike in secret.’”), quoting
Validity, Construction, and Application of Statutes Relating to Burglars’
Tools, 33 A.L.R.3d 798, 805 (1970 & Supp. 2001); cf. Model Penal
Code § 5.06(1) (“A person commits a misdemeanor if he possesses
any instrument of crime with purpose to employ it criminally.”).
Whether a person with the intent to commit a burglary possesses a
flashlight, gloves, or a knife does not alter the harm. See Payne, 233
Ariz. 484, ¶ 88, 314 P.3d at 1264.

¶11           We find support for this conclusion in Dixon, a case
addressing the theft statute. In that case, a defendant charged with
theft under A.R.S. § 13-1802 requested two separate verdicts because
the jury was instructed that theft could involve controlling property
with the intent to deprive or controlling property knowing or having
reason to know that it was stolen. 127 Ariz. at 560-61, 622 P.2d at
507-08. The trial court denied Dixon’s request for separate verdicts.
Id. at 561, 622 P.2d at 508. In affirming the conviction, the court held
that the offense of theft was a single act of “controlling the property
of another” under differing circumstances or states of mind. Id. at

P.3d at 1263. Although Dann involved a capital crime aggravating
factor, the issue raised was whether a verdict form allowed a non-
unanimous verdict because multiple factual scenarios were listed for
a single aggravating factor. 220 Ariz. 351, ¶¶ 76-78, 207 P.3d at 619-
20. The form asked jurors “if the state proved beyond a reasonable
doubt that the murder of either of the other victims ‘or both’ was
committed during the murder at issue.” Id. ¶ 77. There was no risk
of a non-unanimous verdict because the jury could reach the verdict
based on “a combination of alternative findings,” so long as there
was unanimity that “at least one other murder occurred during the
murder at issue.” Id. ¶ 79.


                                   7
                      STATE v. O’LAUGHLIN
                        Opinion of the Court

562, 622 P.2d at 509. Therefore, individual jurors could have reached
differing conclusions about whether Dixon intended to deprive the
owners of their property or simply knew it was stolen, as long as all
twelve agreed he knowingly controlled the property under one of
those conditions. Id. at 561-62, 622 P.2d at 508-09.

¶12          Dixon guides our classification of § 13-1505 as a single
offense that can be committed with multiple tools. Because it is a
single offense, the indictment was not duplicitous. Further, the jury
was instructed that possession of burglary tools required proof that
O’Laughlin “possessed any tool, instrument, or other article adapted
or commonly used for committing burglary; and . . . intended to use
or permit the use of such an item in the commission of a burglary.”
This correctly stated the law and was sufficient to ensure that all
jurors concluded beyond a reasonable doubt that he possessed a
burglary tool with the requisite mental state.

¶13           O’Laughlin also argues the verdict form listing the
burglary tools as “flashlight, knife, and/or gloves” did not properly
reflect the indictment, which contained no conjunction. 6 He
contends the “common rules of grammar” dictate that the commas
in the list replace the word “and,” citing as an example the sentence,
“he is a strong, healthy man.” But that example only illustrates how
a comma can separate coordinate adjectives to modify their shared
target noun. See Bryan A. Garner, The Redbook: A Manual on Legal
Style § 1.7 (2d ed. 2006); The Chicago Manual of Style § 6.39 (15th ed.
2003). The example does not imply inclusion of “and” where there
is a list of items. The general rule is that commas assume the
character of the conjunction used before the last item. See Palmer v.
Martinez, 42 So. 3d 1147, 1153-54 (La. Ct. App. 2010) (“when there is
a final conjunction (e.g., ‘and’ or ‘or’) in the series used before the

      6Our holding that § 13-1505 involves a single offense
necessarily means that the usual conjunction is “or.”          This
conclusion, however, does not necessarily foreclose the state from
being required to prove the entire list of tools if the charge uses
“and,” because to do otherwise might mislead the defendant and
confuse the jury. For this reason, we address whether this charge
could have reasonably been interpreted to imply “and.”


                                  8
                       STATE v. O’LAUGHLIN
                         Opinion of the Court

last term, the comma should be read as an ‘and’ or ‘or,’”
respectively). This interpretive rule is unhelpful if a conjunction is
missing from the sentence.

¶14          As a rhetorical device, the conjunction is purposefully
omitted to create an asyndeton. The asyndeton can speed up a
sentence, suggest unity of the listed items, or indicate disorder. See
Encyclopedia of Rhetoric and Composition 41 (Theresa Enos ed., 1996)
(examples include Caesar’s declaration, “I came, I saw, I
conquered,” and, from Abraham Lincoln’s Gettysburg Address,
“The government of the people, by the people, for the people shall
not perish from this earth”); see also Linda L. Berger, Studying and
Teaching “Law as Rhetoric”: A Place to Stand, 16 Legal Writing: J. Legal
Writing Inst. 3, 51 n.179 (2010). In legal texts, the general rule
interpreting asyndetic sentences is to imply “and” as the final
coordinating conjunction. Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 119 (2012). But as
Garner and Justice Scalia note, “[S]uch a construction could be read
as a disjunctive formulation, [therefore] most drafters avoid it.” Id.
at 119. Indeed, the general rhetorical rule does not appear to apply
in the interpretation of non-persuasive legal texts such as contracts
or statutes. See, e.g., Preis v. Lexington Ins. Co., 508 F. Supp. 2d 1061,
1070 (S.D. Ala. 2007) (missing conjunction in insurance contract read
as “or” where any other reading would have absurd result); compare
7 U.S.C.A. § 136(hh)(3)(B) n.2 (annotation suggests missing word
should be “or”), and 8 U.S.C.A. § 1324a(b)(1)(B) n.1 (same), with 12
U.S.C.A. § 1715z-14(b) n.1 (annotation suggests missing word
should be “and”), and 15 U.S.C.A. § 5201(b) n.1 (same). We conclude
that because the charge omitted a conjunction, it could be read in the
conjunctive or disjunctive. Thus, the trial court did not abuse its
discretion by denying O’Laughlin’s implied request that the word
“and” be added to the verdict form and granting the state’s request
to include “and/or.”7



      7Although   the addition of “and/or” did not create legal error,
its use is discouraged because the reader is not informed whether
the conjunctive or disjunctive applies. See Scalia & Garner, supra, at
125 (criticizing “and/or” as “unfortunate” and “a drafting

                                    9
                      STATE v. O’LAUGHLIN
                        Opinion of the Court

Sufficiency of the Evidence

¶15           Finally, O’Laughlin argues there was insufficient
evidence to support a conviction on the burglary tools count. We
review a claim of insufficient evidence de novo. State v. West, 226
Ariz. 559, ¶ 15, 250 P.3d 1188, 1191 (2011). The test 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. ¶ 16, quoting
State v. Mathers, 165 Ariz. 64, 66, 796 P.2d 866, 868 (1990). The
evidence required for a conviction may be circumstantial or direct.
State v. Pena, 209 Ariz. 503, ¶ 7, 104 P.3d 873, 875 (App. 2005).

¶16          Because the jury could have understood the form of
verdict to require proof that O’Laughlin possessed all three items
with the requisite intent, we examine the arguments for each tool.
The flashlight was found on McClure’s person, and she admitted she
had used it to look in the back of the truck at some point during the
burglary. The state focused on accomplice liability with regard to
the burglary tools in its closing argument. O’Laughlin argues on
appeal that he lacked the mens rea necessary to be found guilty as
an accomplice to possession of the flashlight as a burglary tool,
contending the use of tools is not a “reasonably foreseeable”
consequence of entering an unlocked car. See A.R.S. § 13-303(A)(3)
(defining accomplice liability). But McClure testified that “it wasn’t
quite light” yet when she looked in the truck with the flashlight and
burglarized it, making use of the flashlight reasonably foreseeable.
Further, O’Laughlin contends the state did not present evidence that
a flashlight is a tool “commonly used for committing any form of
burglary.” See § 13-1505(A)(1). But whether such a tool is a burglary
tool “depends on the use to which the object is put,” State v. Smith,



blemish”); Bryan A. Garner, Garner’s Dictionary of Legal Usage 57-58
(3d ed. 2011) (noting “and/or has been vilified for most of its life—
and rightly so”); William Strunk Jr. & E.B. White, The Elements of
Style 40 (4th ed. 2000) (defining “and/or” as “[a] device, or shortcut,
that damages a sentence and often leads to confusion or
ambiguity”).


                                  10
                     STATE v. O’LAUGHLIN
                       Opinion of the Court

103 Ariz. 490, 492, 446 P.2d 4, 6 (1968) (analyzing former burglary
statute), and here the flashlight was used in the burglary.

¶17          Regarding the gloves, O’Laughlin argues there was no
direct evidence O’Laughlin used gloves in the burglary. However,
there was circumstantial evidence. An eyewitness saw O’Laughlin
and McClure stand in the open door of her neighbor’s truck and
then ride away on bicycles. When a police officer found them,
McClure had one glove in her pocket, and more gloves were found
in the truck near where O’Laughlin had been sitting. Items missing
from the neighbor’s truck were also found near O’Laughlin. There
was sufficient evidence O’Laughlin possessed the gloves with intent
to use them in a burglary, as required by the statute. § 13-
1505(A)(1).

¶18          O’Laughlin argues the knife was not a burglary tool
because it was stolen from the truck, not used to enter the truck.
However, there was evidence some sort of tool was used to pry open
the metal lock on the briefcase during the burglary, as well as
evidence the briefcase and knife were stolen from the same truck.
The state presented sufficient evidence to support a guilty verdict
for possession of burglary tools.

                           Disposition

¶19         We affirm O’Laughlin’s convictions and sentences.




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