                               IN THE
            ARIZONA COURT OF APPEALS
                            DIVISION ONE


                    STATE OF ARIZONA, Appellee,

                                   v.

                CURTIS DEWAYNE DECKER, Appellant.

                         No. 1 CA-CR 14-0238
                          FILED 1-7-2016

          Appeal from the Superior Court in Maricopa County
                       No. CR2012-135551-001
                The Honorable Pamela S. Gates, Judge

                             AFFIRMED


                              COUNSEL

Arizona Attorney General’s Office, Phoenix
By Terry M. Crist
Counsel for Appellee

Maricopa County Office of the Legal Advocate, Phoenix
By Kerri L. Chamberlin
Counsel for Appellant
                           STATE v. DECKER
                           Opinion of the Court



                                OPINION

Judge Kent E. Cattani delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge John C. Gemmill joined.


C A T T A N I, Judge:

¶1            In this case we address whether firing a bullet into a
residence constitutes “entry” for purposes of establishing first-degree
burglary. Given Arizona’s expansive statutory definition of entry, and in
light of the property, possessory, and privacy interests that the offense of
burglary is intended to protect, we conclude that a projectile intruding
into a protected space satisfies the entry requirement for burglary. We
further address and reject a claim regarding the superior court’s denial of
Batson1 challenges to the State’s peremptory strikes of two potential jurors.
Accordingly, and for reasons that follow, we affirm Curtis Dewayne
Decker’s convictions of first-degree murder and burglary.

             FACTS AND PROCEDURAL BACKGROUND

¶2            The victim lived with his girlfriend and her mother, Judy, in
Judy’s apartment. Decker was friends with Judy and visited her regularly.
One day, Decker and the victim fought in Judy’s apartment. After
pushing each other and wrestling, the victim drew a knife and cut
Decker’s face. Decker told the victim to step outside to “finish this,” but
the victim stayed inside and Decker rode away on a bicycle.

¶3           About 20 minutes later, Decker returned with two or three
people in a car. They all got out of the car, and Decker walked to Judy’s
front door.     The apartment manager—looking on from her own
apartment—saw Judy standing beside the open door as Decker stood in
the doorway, drew a gun, and quickly fired three shots. Decker then
laughed, put the gun in his pocket, and left in the car. The victim, who
was inside Judy's apartment, died from two close-range gunshot wounds
to the chest. Judy later told the victim’s daughter that she had seen
Decker “in the doorway” and that Decker had shot the victim.



1     Batson v. Kentucky, 476 U.S. 79 (1986).



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                            Opinion of the Court

¶4            After the apartment manager identified Decker from a
photographic lineup, Decker was arrested and charged with first-degree
murder and first-degree burglary. After an initial mistrial due to a hung
jury, Decker was convicted as charged, with the jury unanimously finding
both premeditated and felony murder.          Decker was sentenced to
concurrent terms of life in prison with the possibility of release after 25
years for the murder conviction and 10.5 years for the burglary conviction,
and he timely appealed. We have jurisdiction under Arizona Revised
Statutes (“A.R.S.”) § 13-4033.2

                               DISCUSSION

I.     Batson Challenges.

¶5            Decker argues that the superior court erred by denying his
Batson challenges to the State’s peremptory strikes of prospective Juror 1
and Juror 76. We review the superior court’s denial of a Batson challenge
for clear error, deferring to the court’s first-hand assessment of the
prosecutor’s credibility. See State v. Garcia, 224 Ariz. 1, 10, ¶ 22 (2010).

¶6             The Equal Protection Clause of the Fourteenth Amendment
prohibits use of a peremptory strike to exclude a potential juror on the
basis of race. Batson, 476 U.S. at 89. Batson challenges are assessed in three
stages: “(1) the party challenging the strikes must make a prima facie
showing of discrimination; (2) the striking party must provide a race-
neutral reason for the strike; and (3) if a race-neutral explanation is
provided, the trial court must determine whether the challenger has
carried its burden of proving purposeful racial discrimination.” State v.
Cañez, 202 Ariz. 133, 146, ¶ 22 (2002). The opponent of the strike bears the
burden of showing racial motivation. Garcia, 224 Ariz. at 10, ¶ 21.

¶7             Decker’s counsel first objected to the prosecutor’s
peremptory strike of Juror 76, who was one of three African American
potential jurors, noting that Decker is also African American, and arguing
that Juror 76’s limited comments during voir dire did not indicate an
inability to be fair and impartial. In response, the prosecutor offered two
reasons for the strike: (1) he knew comparatively less about Juror 76 than
others in the venire because Juror 76 had answered only the standard
biographical questions asked of each potential juror but had not otherwise


2     Absent material revisions after the relevant date, we cite a statute’s
current version.



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                           Opinion of the Court

spoken during voir dire and (2) Juror 76 had failed to follow the court’s
instruction to remain outside the courtroom during a break. The judge
noted that she had observed Juror 76 entering the courtroom
unaccompanied while the lawyers were speaking about the case, despite
having been instructed that jurors should not enter the courtroom unless
escorted by the bailiff. The court found this to be a race-neutral reason for
the strike, and thus denied Decker’s challenge.

¶8            Decker next objected to the State’s subsequent strike of Juror
1, an African American woman, alleging a pattern of discrimination based
on the State’s strikes of two of the three African American potential jurors.
The prosecutor again offered two reasons for the strike: (1) he knew very
little about Juror 1 because she also had only answered the standard
biographical questions at the end of voir dire and (2) Juror 1 appeared to
have dozed off at times, and her demeanor—arms crossed, hand in
pocket—made her seem uninterested in the proceedings. The prosecutor
noted that he had also struck Juror 47, who was not African American, for
lack of information because he had only answered the biographical
questions at the end of voir dire. Although the judge did not observe
Juror 1’s demeanor because she was not in the judge’s line of sight, the
court found lack of information and uninterested demeanor to be race-
neutral reasons for the strike, and thus denied Decker’s Batson challenge.
The court later noted that one African American (Juror 56) was selected to
serve on the jury.

¶9             Relying on Miller-El v. Dretke, 545 U.S. 231 (2005), Decker
argues that the prosecutor’s “lack-of-information” explanation for the
strikes was pretextual because the prosecutor could have questioned
Jurors 1 and 76 to elicit additional information, but chose not to do so. In
Miller-El, the prosecutor, apparently as an afterthought, offered the prior
conviction of a potential juror’s brother as a reason for striking the juror.
Id. at 246. The failure to ask additional questions after the prospective
juror stated “I don’t really know too much about it”—along with other
indicators of pretext—belied the importance the prosecutor later
attributed to the family history. Id. Here, in contrast, there was no
discrete issue about which the State had expressed a concern and which
might have warranted follow-up questioning.

¶10            Although “lack of information” is generally an unpersuasive
rationale for striking a prospective juror, Decker did not show that the
strikes represented purposeful racial discrimination. See Cañez, 202 Ariz.
at 146, ¶ 22. The prosecutor apparently struck a non-African American
juror for the same lack-of-information reason, and the fact that an African


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                            Opinion of the Court

American was impaneled, although not dispositive by itself, also suggests
that the two challenged strikes did not establish a pattern of racial
discrimination. See State v. Roque, 213 Ariz. 193, 204, ¶ 15 (2006).

¶11            More importantly, the prosecutor offered an additional
relevant and facially race-neutral reason for each strike. The judge
confirmed the prosecutor’s observation of Juror 76 failing to follow the
court’s instructions and implicitly found credible the prosecutor’s account
of Juror 1’s dozing and inattentiveness, and we defer to the superior
court’s first-hand observations and credibility determinations. See State v.
Newell, 212 Ariz. 389, 401, ¶ 54 (2006). Under the circumstances, and
particularly in light of the additional reason offered for each strike, the
superior court did not err by denying Decker’s Batson challenges.

II.    Projectile Theory of Entry for Purposes of Burglary.

¶12           Decker next argues that the evidence was insufficient to
establish entry into the apartment as necessary to support his burglary
conviction.

¶13            In closing argument, the prosecutor argued that a projectile
fired into a residence—in this case, the bullets fired from the gun Decker
used to shoot the victim—could establish the element of entry necessary to
prove he committed burglary. Decker objected, arguing the prosecutor
had misstated the law, but the court overruled Decker’s objection.
Although the prosecutor posited in the alternative that Decker had
physically entered the apartment, both the prosecutor’s and defense
counsel’s arguments regarding this element of the offense focused
predominantly on the projectile theory of entry.

¶14            We generally review the superior court’s rulings controlling
closing argument for an abuse of discretion. State v. Lynch, 238 Ariz. 84,
97, ¶ 33 (2015). We consider de novo, however, the court’s construction of
a statute, looking first to the provision’s plain language and considering
the common meaning of any undefined terms. State ex rel. Montgomery v.
Harris (Shilgevorkyan), 237 Ariz. 98, 100, ¶ 8 (2014); State v. Pena, 235 Ariz.
277, 279, ¶ 6 (2014); see also A.R.S. § 1-213 (stating that statutes should be
construed based on the common meaning of words and phrases, unless
subject to an established legal definition). We may consult dictionaries to
determine the ordinary meaning of statutory terms. Pena, 235 Ariz. at 279,
¶ 6; State v. Gill, 235 Ariz. 418, 420 n.1, ¶ 8 (App. 2014).

¶15         As relevant here, an individual commits first-degree
burglary by “entering or remaining unlawfully in or on a residential


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                           Opinion of the Court

structure with the intent to commit any theft or any felony therein” while
knowingly possessing a deadly weapon. A.R.S. §§ 13-1508(A), -1507(A).
The only element at issue here is the requirement of entry.

¶16           A.R.S. § 13-1501(3) 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.” Thus, by its terms, the
statute allows entry by an instrument alone, even if no part of the
perpetrator’s body crosses the threshold. Id.; see also State v. Kindred, 232
Ariz. 611, 614, ¶ 9 (App. 2013) (concluding that insertion of a pry bar into
a door jamb constituted entry).

¶17           Although the statute does not define “instrument,” the term
is generally understood to mean “[a] tool or implement used to do or
facilitate work.” American Heritage Dictionary 910 (5th ed. 2011); see also
Instrument Definition, Oxford English Dictionary Online (“OED”) (Oxford
Univ. Press 2015) (defining an instrument as “a thing with or through
which something is done or effected; . . . a means” or as “[a] material thing
designed or used for the accomplishment of some mechanical or other
physical effect; a mechanical contrivance (usually one that is portable, of
simple construction, and wielded or operated by the hand); a tool,
implement, weapon”).

¶18           This common understanding is consistent with the statutory
definition of a “dangerous instrument” (found in another section of the
criminal code) as “anything that under the circumstances in which it is
used, attempted to be used or threatened to be used is readily capable of
causing death or serious physical injury.” A.R.S. § 13-105(12). When
considered without the “dangerous” limitation (“readily capable of
causing death or serious physical injury”), that definition in effect
acknowledges that an instrument is anything used for a purpose. See id.

¶19           The question thus becomes whether a projectile bullet can be
characterized as a tool or implement used to do work that intrudes into
the residence. Because a person firing a bullet, even if from outside a
doorway, is using the projectile as a means to accomplish a task within the
residence—here, murder—the bullet qualifies as an instrument that can
“enter” a structure for purposes of burglary.

¶20            Decker acknowledges that the gun he was holding would be
an instrument for these purposes, but he argues that the projectile bullet is
not an instrument. First, Decker posits that the bullet on its own is not a
tool; rather, the gun is a tool and the bullet just another object used in



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                            Opinion of the Court

carrying out the gun’s purpose. But the use of a bullet is not substantively
different than, for instance, a knife thrown from outside the doorway.
That the perpetrator uses another instrument to accelerate the bullet does
not change the fact that the bullet itself is an instrument that causes
damage across the threshold. See OED (defining an instrument as “a thing
with or through which something is done or effected; . . . a means”).

¶21           Decker also suggests that an instrument for these purposes
must be handheld so as to approximate personal entry by the perpetrator.
But the current statutory definition does not restrict entry-by-instrument
to only objects held by or physically connected to the perpetrator. A.R.S.
§ 13-1501(3) (“any part of any instrument or any part of a person’s body”)
(emphasis added). Moreover, Arizona’s burglary statutes previously
restricted entry-by-instrument to only “an instrument or weapon held in
[the] hand,” A.R.S. § 13-301(1) (1956); the Legislature removed this
“handheld” requirement when enacting the 1978 Criminal Code. See
A.R.S. § 13-1501(2) (1978). This legislative change supports the conclusion
that entry-by-instrument under the current statutory definition
encompasses entry by a projectile.

¶22           Holding that intrusion by a projectile may constitute entry
(when accompanied by the requisite felonious intent) is also consistent
with the purposes underlying criminalizing burglary. At their core,
burglary statutes are intended to “protect the security of the home, and
the person within his home.” Kindred, 232 Ariz. at 614, ¶ 8 (citation
omitted); see also Arizona Criminal Code Commission, Arizona Revised
Criminal Code 159 (1975) (“The essence of the offense of burglary is the
unauthorized invasion of protected premises.”). The offense recognizes
the “heightened expectation of privacy and possessory rights of
individuals in structures and conveyances” and penalizes violation of the
victim’s property, possessory, and privacy rights within his or her home.
State v. Hinden, 224 Ariz. 508, 511, ¶ 13 (App. 2010) (quoting 12A C.J.S.
Burglary § 1, at 53 (2004)); see also Gill, 235 Ariz. at 421, ¶ 13; Minturn T.
Wright, III, Note, Statutory Burglary—The Magic of Four Walls and A Roof,
100 U. Pa. L. Rev. 411, 427 (1951) (characterizing common law burglary as
an “offense against the habitation”).

¶23            The victim’s interest in protecting his or her space does not
vary depending on how the perpetrator invades that space. The intrusion
of a bullet fired from just outside the open doorway no less disrupts the
victim’s security in his or her home than one fired after the muzzle of the
gun crosses the threshold.



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                             Opinion of the Court

¶24            Finally, we note that, even in jurisdictions that have not
defined “entry” by statute, courts have similarly recognized, based on
burglary’s common law underpinnings, that projectile instruments can
accomplish an entry if used “to consummate a criminal objective.”3 See
Commonwealth v. Cotto, 752 N.E.2d 768, 771 (Mass. App. Ct. 2001) (holding
that a bottle containing gasoline thrown through a window and used to
start a fire inside an apartment constituted entry); State v. Williams, 873
P.2d 471, 474 (Or. Ct. App. 1994) (holding that bullets fired into a house,
intended to intimidate a witness, constituted entry); cf. Ex parte Hyde, 778
So. 2d 237, 239 n.2 (Ala. 2000) (rejecting entry by bullet based on a state
law requiring “entry by some part of the defendant’s body”). Our
interpretation of “entry” is thus also consistent with the “conceptual
broadening of [common law] burglary” as reflected in our burglary
statutes. See Gill, 235 Ariz. at 421, ¶ 13.

¶25            Accordingly, we conclude that bullets fired into a structure,
assuming all other elements of the offense are met, constitutes entry
sufficient to support a burglary conviction. The prosecutor’s argument to
that effect thus correctly stated Arizona law, the superior court did not err
by denying Decker’s objection, and sufficient evidence supported Decker’s
burglary conviction.


3       Traditional common law treatises reflect no consensus view on
entry-by-projectile. Compare 2 Edward Hyde East, A Treatise of the Pleas of
the Crown § 7, at 490 (1803) (recognizing disagreement among authorities
regarding whether a projectile bullet could constitute entry, but
concluding there is no substantive distinction between an instrument
“holden in the hand” and one “discharged from it”), 1 William Hawkins,
A Treatise of the Pleas of the Crown, ch. 17, § 11 (8th ed., 1824) (positing entry
by “discharge [of] a loaded gun into a house”), with 4 William Blackstone,
Commentaries *227 (recognizing entry by “an instrument held in the
hand”), 1 Matthew Hale, The History of the Pleas of the Crown, 554–55 (1st
Am. ed. 1847) (“But if he shoots without the window, and the bullet comes
in, this seems to be no entry to make burglary; quaere.”).
        More modern treatises that address the issue, however, generally
recognize entry-by-projectile. See 3 Wharton’s Criminal Law § 333 (14th
ed. 1980 & supp. 1994) (recognizing “entry” “when the defendant, while
standing outside, fires a bullet which pierces a window and lands inside,
the gun having been discharged for the purpose of killing the occupant”),
Nolan & Henry, Criminal Law § 403 (2d ed. 1988) (“If [a bullet is] fired to
kill a person inside, probably an entering could be found.”).



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                         Opinion of the Court

                           CONCLUSION

¶26          For the foregoing reasons, we affirm Decker’s convictions
and sentences.




                               :ama




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