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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                    TOM ARTHUR BITHELL, Appellant.

                             No. 1 CA-CR 15-0265
                               FILED 9-19-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-121197-002
                     The Honorable Erin Otis, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael O’Toole
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Rena P. Glitsos
Counsel for Appellant
                            STATE v. BITHELL
                            Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Jon W. Thompson delivered the decision of the Court, in
which Judge Michael J. Brown and Judge Jennifer B. Campbell joined.


T H O M P S O N, Judge:

¶1         Appellant, Tom Arthur Bithell, appeals his conviction for one
count of burglary in the third degree, a class 4 felony, and the
accompanying sentence of 2.25 years. Finding no reversible error, we
affirm.

               FACTUAL AND PROCEDURAL HISTORY

¶2            Around 7:00 p.m. one evening in late April 2012, while
patrolling, Phoenix Police Lieutenant K. Mitchell observed Bithell throw
tires from the used tire shed (or “dead bin”) at a Discount Tire store into his
truck. The Lieutenant then saw Bithell throw tires back out of his truck into
the shed. She approached Bithell to speak with him, and he stated that he
did not have permission to take tires from the shed. He claimed that he
threw two tires out of his truck “[b]ecause they were not good tires.” Four
tires remained in Bithell’s truck.

¶3             Officer N. Yahrmarkt subsequently arrived on scene and also
spoke with Bithell. Bithell told her the store’s manager had given his friend
“Bob Shea” permission to pick tires from the shed. Bithell did not know the
manager’s name and Bob was not at the scene. He mentioned that he was
at the shed “with Bob to pick up tires,” and that he was using his truck
because Bob’s truck had died. Bithell claimed that Bob had gone down the
street to buy something to eat. When Officer Yahrmarkt suggested they
wait for Bob to come back, Bithell postulated that Bob would probably not
come back due to the police presence. Officer Yahrmarkt and another
officer, Officer Micak, arrested Bithell and read him his Miranda1 rights.

¶4              After Bithell was arrested, Yahrmarkt asked him who owned
the four tires that were still in his truck, and Bithell claimed that Bob owned
them. He said “they were going to put them back because [Bob thought]
they were bad tires.” Bithell remarked that he was helping Bob put the tires


1      Miranda v. Arizona, 384 U.S. 436 (1966).


                                      2
                            STATE v. BITHELL
                            Decision of the Court

back into the shed in exchange for $25.00 and dinner. He stated that “he
was trying to make a living.”

¶5            At trial, Bithell testified that the two tires the Lieutenant
observed him throw into the back of his truck were tires that he had
erroneously thrown into the shed. Discount Tire’s store manager also
testified. The manager stated that neither Bithell nor a “Bob Shea” had ever
worked for him and neither had permission to take tires from the shed.

¶6            The store manager further testified that only four individuals
had key access to the shed—he, two other managers, and a tire company
(Lakin) that Discount Tire contracted with to remove tires from the “dead
bin”. He claimed that they frequently had to change the locks on the bin
because it “was consistently getting broken into.” He also testified that on
the day Bithell was observed taking out and putting tires in the bin, it
should have been closed and locked. He affirmed that it would have been
“unusual” for the bin’s door to have been left opened.

¶7             A jury found Bithell guilty as charged. The trial court found
Bithell had two prior felony convictions (aggravated DUI in 2001, and
possession of drug paraphernalia in 2005), and sentenced him to a
minimum term of 2.25 years in the Arizona Department of Corrections.
Bithell filed an untimely appeal, but was granted leave to file a delayed
notice of appeal, which he timely filed. We have jurisdiction under Article
6, Section 9 of the Arizona Constitution and Arizona Revised Statutes
(A.R.S.) sections 12-120.21(A)(1) (2016), 13-4031 (2010), and -4033(A) (2010).2

                               DISCUSSION

¶8           On appeal, “[w]e view the facts in the light most favorable to
sustaining the convictions with all reasonable inferences resolved against
the defendant.” State v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2, 340 P.3d 1110, 1112
n.2 (App. 2015) (quoting State v. Valencia, 186 Ariz. 493, 495, 924 P.2d 497,
499 (App. 1996)).

I.     Sufficiency of the Evidence

¶9            Bithell argues the state failed to provide sufficient evidence of
intent to support his third-degree burglary conviction. His argument fails.




2      Absent changes material to this decision, we cite a statute’s current
version.


                                      3
                             STATE v. BITHELL
                             Decision of the Court

¶10             To establish the offense of burglary in the third-degree, the
state was required to show Bithell: (1) entered or remained “unlawfully in
or on a nonresidential structure;” and (2) did so “with the intent to commit
any theft or any felony therein.” A.R.S. § 13-1506(A)(1) (2010). A person
enters or remains unlawfully in a structure if “the person’s intent for so
entering or remaining is not licensed, authorized or otherwise privileged.”
A.R.S. § 13-1501(2) (2010). A nonresidential structure is “any structure
other than a residential structure and includes a retail establishment.” Id. §
13-1501(10). A “structure” is broadly defined and includes, inter alia, “any
building . . . or place with sides and a floor that is separately securable from
any other structure attached to it and that is used for lodging, business,
transportation, recreation or storage.” Id. § 13-1501(12).

¶11            The evidence established the first element of the offense.
Discount Tire’s shed is part of a nonresidential retail business. It was
detached from the tire store, had sides and doors that were separately
secured, and was used to store tires. See, e.g., State v. Gill, 235 Ariz. 418, 419-
21, ¶¶ 5-12, 333 P.3d 36, 38-39 (App. 2014) (finding that a mailbox meets the
statutory definition of non-residential structure). Bithell entered the shed.
He also admits that he did not personally have permission to do so, and the
store’s manager testified that neither Bithell nor the unidentified “Bob
Shea” had permission to enter the shed and/or to take tires from it. Thus,
because Bithell was not “licensed, authorized or otherwise privileged,”
A.R.S. § 13-1501(2), to enter or remain in the shed, his presence there was
unlawful.

¶12            Bithell challenges the sufficiency of the evidence supporting
the second element by arguing that the evidence regarding his intent did
not meet the requisite standard of proof—beyond a reasonable doubt. He
avers that, at best, the presented evidence made the question of his intent
ambiguous and speculative. We disagree.

¶13            “Criminal intent, being a state of mind, is shown by
circumstantial evidence.” State v. Routhier, 137 Ariz. 90, 99, 669 P.2d 68, 77
(1983) (citation omitted); see also State v. Ramos, 133 Ariz. 4, 6, 648 P.2d 119,
121 (1982) (citations omitted) (“Intent to commit theft or any felony can be
shown by circumstantial evidence.”); State v. Fulminante, 193 Ariz. 485, 494,
¶ 27, 975 P.2d 75, 84 (1999) (stating that the defendant’s “false, misleading,
and inconsistent statements to police,” and others, demonstrated the
defendant’s “consciousness of guilt”). The reasonable doubt standard
requires evidence sufficient to satisfy each element of the crime and to
convince a factfinder of the defendant’s guilt “with utmost certainty.” In re
Winship, 397 U.S. 358, 364 (1970).


                                        4
                            STATE v. BITHELL
                            Decision of the Court

¶14            Here, Lieutenant Mitchell saw Bithell throwing tires from the
shed into his truck. As to this fact, Bithell’s statements to the officers on the
day of his arrest and his statements at trial are clearly inconsistent. It was
therefore up to the jury to weigh his credibility, and draw out a conclusion
as to whether Bithell was returning tires to the shed, taking tires from the
shed, or taking tires from the shed that he had accidentally thrown in the
shed. See State v. Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974)
(counting cases) (“No rule is better established than that the credibility of
the witnesses and the weight and value to be given to their testimony are
questions exclusively for the jury.”). Bithell’s conflicting statements, and
his statement that “he was [just] trying to make a living,” were sufficient to
compel the jury to reasonably believe, beyond a reasonable doubt, that
Bithell had taken tires from the shed and to reject his story that he was
removing tires he had accidentally thrown in the shed. The jury could have
also reasonably concluded that the absence of “Bob Shea” at the scene of
the incident or at trial to corroborate Bithell’s statements, undermined his
argument of lacking intent to commit theft merely because he believed “Bob
Shea” had permission to enter the shed to take tires. See id. at 557, 521 P.2d
at 989 (stating that because he is an interested witness, a jury is “not
compelled to accept [an accused’s] story or believe his testimony”). We
conclude the evidence of Bithell’s intent was sufficient to support the jury’s
verdict.

II.    Lack of Mistake of Fact Defense Jury Instruction

¶15            Bithell also asserts that the trial court should have sua sponte
instructed the jury on a mistake-of-fact defense and that its failure to do so
amounts to reversible error. Because Bithell did not raise the issue in the
trial court, we review for fundamental error. See State v. Henderson, 210
Ariz. 561, 567, ¶¶ 19-20, 115 P.3d 601, 607 (2005). We find that even if Bithell
was entitled to a mistake-of-fact defense instruction, the court’s failure to
so instruct does not constitute fundamental error.

¶16           A defendant is entitled to relief under fundamental error
review only where an error exists, that error reaches the foundation of the
case, takes away a right essential to the defendant’s defense or where
because of the error, the defendant was deprived of a fair trial and the
defendant shows he was prejudiced by the error. State v. James, 231 Ariz.
490, 493, ¶¶ 11, 13, 297 P.3d 182, 185 (App. 2013) (citations omitted).

¶17           Bithell argues that because he testified to believing that he had
derivative permission, through “Bob Shea,” to be at the shed, and that belief
was at “the heart of his defense,” he was entitled to have the court instruct


                                       5
                            STATE v. BITHELL
                            Decision of the Court

the jury regarding the mistake-of-fact defense. He claims that he was
prejudiced by the court’s failure to give the instruction, which he did not
request, because the mistake negated the offense’s intent element.

¶18            Given the evidence before the jury, in deciding to convict
Bithell of burglary instead of acquitting him, the jury necessarily had to
decide whether they believed Bithell had the intent to commit a theft in
entering the shed. Further, Bithell was able to proffer the defense of his
alleged mistaken belief, in spite of the lack of instruction. Therefore, it
would at best be speculative for this court to conclude that the failure to
instruct the jury on the mistake-of-fact defense fundamentally prejudiced
him. See, e.g., State v. Dickinson, 233 Ariz. 527, 531, ¶ 13, 314 P.3d 1282, 1286
(App. 2013) (quoting State v. Munninger, 213 Ariz. 393, 397, ¶ 14, 142 P.3d
701, 705 (App. 2006)) (stating that under fundamental error review, a
defendant “must affirmatively ‘prove prejudice’ and may not rely upon
‘speculation’ to carry his burden”).

III.   Lack of Criminal Trespass Jury Instruction

¶19            Although Bithell did not request a criminal trespass jury
instruction, he contends that the trial court committed fundamental error
by not giving a jury instruction for trespass as a lesser-included offense of
third-degree burglary. The state argues that, as a preliminary matter, the
trial court did not err because: (1) the court had no duty to sua sponte instruct
on “lesser” offenses; and (2) criminal trespass is not a lesser-included
offense of third-degree burglary. We review for fundamental error, see
Henderson, 210 Ariz. at 567, ¶¶ 19-20, 115 P.3d at 607, and find no relief for
Bithell.

¶20           The Arizona Supreme Court has held that “[c]riminal trespass
is not necessarily a lesser included offense of burglary.” State v. Malloy, 131
Ariz. 125, 131, 639 P.2d 315, 321 (1981); see also State v. Kozan, 146 Ariz. 427,
429, 706 P.2d 753, 755 (App. 1985) (citations omitted) (noting that “Arizona
courts have consistently held that criminal trespass is not a lesser-included
offense of burglary,” and that “[t]he legislative amendment [of the
definition of “knowingly”] has not changed the rule in State v. Malloy”);
State v. Newnom, 208 Ariz. 507, 508, ¶ 8, 95 P.3d 950, 951 (App. 2004) (stating
that the Court of Appeals cannot disregard the decisions of our supreme
court).

¶21           Moreover, a trial court’s failure to give an instruction as to a
lesser-included offense, which the parties also failed to request, is not
fundamental error. See, e.g., State v. Engram, 171 Ariz. 363, 367, 831 P.2d 362,



                                       6
                            STATE v. BITHELL
                            Decision of the Court

368 (App. 1991) (supp. op); see also State v. Gipson, 229 Ariz. 484, 487, 277
P.3d 189, 192 (2012) (quoting Walker v. United States, 418 F.2d 1116, 1119
(D.C. Cir. 1969)) (“In general the trial judge should withhold charging on
lesser included offense[s] unless one of the parties requests it, since that
charge is not inevitably required in our trials, but is an issue best resolved,
in our adversary system, by permitting counsel to decide on tactics.”)

¶22           Given these considerations, we conclude the trial court’s
failure to sua sponte provide a criminal trespass instruction in this matter
cannot support a finding of reversible error.

                                CONCLUSION

¶23           We affirm Bithell’s conviction and sentence.




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




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