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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                KENNETH WILLIAM TAYLOR, Appellant.

                             No. 1 CA-CR 16-0009
                               FILED 1-4-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2012-165045-001
                 The Honorable Jo Lynn Gentry, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Nicholaus Podsiadlik
Counsel for Appellant
                            STATE v. TAYLOR
                           Decision of the Court


                      MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding
Judge Andrew W. Gould and Judge Patricia A. Orozco (Retired) joined.


S W A N N, Judge:

¶1             Appellant Kenneth William Taylor appeals his conviction for
one count of third-degree burglary. He argues that the evidence was
insufficient to show intent, that the prosecutor committed misconduct by
misstating the law, and that the superior court committed fundamental
error by not instructing the jury that criminal trespass is a lesser-included
offense or that mere presence is not enough for a conviction. For the reasons
that follow, we affirm.

                FACTS AND PROCEDURAL HISTORY

¶2             The night of December 25–26, 2012, Officer Metcalf, a
uniformed police officer, was on patrol in downtown Mesa in a marked
police vehicle. At about 12:30 a.m., dispatch received a silent alarm from
the Mesa Historical Museum. Ofc. Metcalf was dispatched and arrived
about four minutes after the alarm issued. When he arrived, he exited his
police car and started walking towards the museum. He noticed Taylor
walking back and forth between rooms in one of the building’s other suites,
the Benedictine University.1 As Ofc. Metcalf got closer, Taylor exited the
university through a shattered glass door, got on a bicycle, and headed east.
After a brief chase, Taylor was apprehended, interrogated, and transferred
to a holding facility.

¶3           Ofc. Metcalf returned to the university and conducted a
room-to-room search. The desks had been rummaged through; it was later
determined that five laptop computers and a couple of docking stations
were missing; they were never recovered. No fingerprints were found at
the scene. Ofc. Metcalf also checked the Mesa Historical Museum and
discovered that the silent alarm was triggered when a river rock was
thrown through a glass door. No one was in the museum and only a couple
of TV cables were missing.




1     Though the university had an alarm system, it was not functioning.


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                             STATE v. TAYLOR
                            Decision of the Court

¶4            A jury found Taylor guilty of third-degree burglary. He
appeals.

                                DISCUSSION

I.     THE STATE PRESENTED SUFFICIENT EVIDENCE OF INTENT.

¶5            A person commits third-degree burglary by entering or
remaining unlawfully in a nonresidential structure with the intent to
commit a theft or felony therein. A.R.S. § 13-1506. Intent may be inferred
from all the facts and circumstances and need not be supported by direct
proof. E.g., State v. Quatsling, 24 Ariz. App. 105, 108 (1975); see also State v.
Noriega, 187 Ariz. 282, 286 (App. 1996).

¶6            Taylor argues the state failed to present sufficient evidence
that he intended to commit a crime or theft when he entered the university
and that he was merely present in the university. We view the evidence in
the light most favorable to support a conviction and will affirm unless there
is a complete absence of probative facts to support the verdict. Quatsling,
24 Ariz. App. at 108.

¶7             Taylor relies on State v. Rood, in which the court held that the
defendant’s entry through an unlocked door into a house where a neighbor
saw him “with his hand resting” on a television was not sufficient evidence
of intent. 11 Ariz. App. 102, 103, 104 (1969). The court held that proof of
intent cannot be inferred from a nonforcible entry through an unlocked
door. Id. at 104. But the court noted that the holding did not apply to cases
in which a defendant entered a structure by force, through a window, or
“some other suspicious means” where the manner of entry could support
an inference of intent.2 Id.; see also State v. Taylor, 25 Ariz. App. 497, 499
(1976) (explaining that intent may be inferred from an unauthorized entry
by force).



2       Taylor argues this statement is dictum. He is wrong. Dictum is a
“court's statement on a question not necessarily involved in the case before
it.” Creach v. Angulo, 186 Ariz. 548, 552 (App. 1996), approved 189 Ariz. 212
(1997). The issue in Rood was if the evidence was sufficient to prove the
intent element for burglary. The court necessarily had to distinguish Rood’s
facts from those of other cases. See generally Rood, 11 Ariz. App. at 104–05.
Moreover, our statement is consistent with long-standing law. See
McCreary v. State, 25 Ariz. 1 (1923).



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                             STATE v. TAYLOR
                            Decision of the Court

¶8             To the extent Rood is still good law, it has been confined to its
facts. See State v. Cabrera, 114 Ariz. 233, 235 (1977) (distinguishing Rood
when the defendants entered a business and ran when the owners caught
them standing with mechanic’s tools over the open hood of a car); State v.
Talley, 112 Ariz. 268, 270 (1975) (distinguishing a late-night entry while
possessing the victim’s revolver from the mid-morning entry in Rood and
holding that a jury, to find intent, could consider a defendant’s attempt to
hide); State v. Fierro, 15 Ariz. App. 369, 370–71 (1971) (narrowly applying
Rood to instances where there is no forcible entry and no evidence of a crime
after entry); State v. Salcido, 12 Ariz. App. 275, 276 (1970) (distinguishing
Rood where there was forcible entry and an open cash register and cabinets).

¶9             The facts of this case differ significantly from those in Rood.
Here, there was clearly a theft. And at most, five minutes passed between
the silent alarm and Ofc. Metcalf’s arrival. Though he was not caught in
possession of any items from the university, the jury could have inferred
that Taylor had help and stayed at the scene longer than his co-conspirators
who escaped with the loot. Even if someone else broke the glass doors at
the museum and the university and fled with the property before Taylor
arrived, the jury could reasonably infer that Taylor intended to steal
something from the already-burglarized university.3 Taylor entered a
university office, without permission or authorization, through a shattered
glass door at 12:30 a.m. on Christmas Night wearing gloves with a “full
rubber bottom,” then fled from uniformed police officers. Ofc. Metcalf saw
him going back and forth between rooms, and there was a box with a
printer, clock, and other items (that was not placed there by an employee)
near the shattered door through which Taylor fled. There is sufficient
evidence that Taylor intended to commit a theft.

II.    THERE WAS NO PROSECURTORIAL MISCONDUCT.

¶10         Taylor argues that the prosecutor incorrectly told the jury that
mere presence was sufficient to convict Taylor of burglary. It is true that

3      Taylor seems to argue that so long as a defendant merely enters an
already-burglarized structure, he cannot be convicted of burglary unless he
is caught with stolen property in his hands. This is not a reasonable reading
of Rood and runs contrary to Arizona’s long-standing burglary law.
Arizona abandoned the common law requirements of breaking and
entering in favor of a standard under which even a lawful entry becomes
burglary if it is supported by the proper intent. McCreary, 25 Ariz. at 2; see
also Rood, 11 Ariz. App. at 104 (distinguishing cases where a breaking and
entering can imply intent).


                                       4
                             STATE v. TAYLOR
                            Decision of the Court

the prosecutor may not misstate the law to the jury. State v. Serna, 163 Ariz.
260, 266–67 (1990). Because Taylor did not object at trial, we review for
fundamental error, and must affirm unless Taylor proves there was an error
that goes to the foundation of the case, deprived him of a right essential to
his defense, or was of such magnitude to render the trial unfair. State v.
Henderson, 210 Ariz. 561, 567, ¶ 19 (2005).

¶11            The prosecutor correctly stated that burglary requires entry
with the intent to commit a theft or felony. A.R.S. § 13-1506(A). In
reviewing the prosecutor’s statements, we find only one instance that could
plausibly imply that mere presence is sufficient. The prosecutor said in
relevant part:

       [L]et’s assume, for argument’s sake, he wasn’t the one that
       smashed the door. Let’s assume he wasn’t the one that went
       in and disconnected computers, turned over monitors,
       opened drawers. For argument’s sake, just assume somebody
       else did it. . . .

       If you believe at that moment, even if he didn’t do any of that
       other stuff, but he enters after somebody else does, he enters
       without permission. He had no permission from Benedictine
       University. Even if the door was broken, even if the door, let’s
       say, was wide open and propped open with something, he
       had no permission to be in there, period, whatsoever.

       If you believe he entered at that point with the intent to
       commit a theft, that’s burglary in the third degree. And,
       again, in the context of 12:30 in the morning, nobody around,
       it’s a business, no authority whatsoever to be there, there’s no
       other reason for somebody to go in there but for [sic] to
       commit a theft.

We see nothing legally incorrect in this statement.

¶12            The jury can infer intent from the totality of the circumstances.
The prosecutor correctly stated that the state did not have to prove Taylor
actually stole anything, only that he intended to do so. Fairly construed,
the prosecutor’s argument did not suggest that mere presence is enough for
a conviction. Though Taylor takes issue with the prosecutor’s final
statement that “there's no other reason for somebody to go in there,” this
statement simply presented a reasonable inference from the facts. Taylor
offers no innocent explanation for his presence. We perceive no error, much
less one that rendered his trial fundamentally unfair.


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                             STATE v. TAYLOR
                            Decision of the Court

III.   THERE WAS NO FUNDAMENTAL ERROR IN THE FINAL JURY
       INSTRUCTIONS.

¶13          Taylor finally argues that the superior court committed
fundamental error by not instructing the jury that trespass is a lesser-
included offense to burglary and by not including a mere-presence
instruction.

¶14            Because he did not object at trial, Taylor has waived his
arguments on the jury instructions on appeal, and we review only for
fundamental error. Ariz. R. Crim. P. 21.3(c); State v. Erivez, 236 Ariz. 472,
475, ¶ 13 (App. 2015). Though the failure to give a jury instruction can be
fundamental error, we require a specific showing of prejudice for relief.
State v. Eddington, 226 Ariz. 72, 80, ¶ 22 (App. 2010) (internal quotations and
citations omitted), as amended on reconsideration (Feb. 10, 2011), aff'd, 228
Ariz. 361 (2011).

¶15            Taylor contends that the case law is split on whether trespass
is a lesser-included offense for burglary. He encourages us to hold that it
is.

¶16             In 1981, our supreme court held that trespass is not
necessarily a lesser-included offense of burglary, because criminal trespass
requires that a defendant know his presence was unlawful while burglary
does not. State v. Malloy, 131 Ariz. 125, 129–31 (1981). The court relied on
the version of A.R.S. § 13-105 in effect at the time, which prescribed:
“‘Knowingly’ means, with respect to conduct or to a circumstance
described by a statute defining an offense, that a person is aware or believes
that the person’s conduct is of that nature or that the circumstance exists.”
See also State v. Kozan, 146 Ariz. 427, 429 (App. 1985).

¶17           In 1981, the legislature amended the definition of “knowing”
by adding: “It does not require any knowledge of the unlawfulness of the
act or omission.” Id. In State v. Kozan, we determined that the added
language did not affect the holding of Malloy, because the statutory
elements of trespass require the defendant to know his presence is unlawful
even if the statutory definition of “knowing” does not. Id.; see also A.R.S.
§ 13-504.

¶18           In 1991, without discussing Kozan or Malloy, this court upheld
the superior court’s vacation of a conviction for criminal trespass when the
jury was instructed that it was a lesser-included offense for burglary and
found the defendant guilty of both. State v. Engram, 171 Ariz. 363 (App.
1991). We noted that, “When the jury improperly returned the inconsistent


                                      6
                             STATE v. TAYLOR
                            Decision of the Court

verdicts for burglary and the lesser included offense of trespass, the trial
judge immediately realized that a defendant cannot be convicted for both a
greater and a lesser included offense.” Id. at 365 (citing Brown v. Ohio, 432
U.S. 161, 168 (1977)).

¶19           There is no split in the case law. First, our opinion in Engram
assumed, rather than held, that trespass was a lesser-included offense.
Second, we reject the argument that Kozan and Malloy were improperly
decided and should be reversed. Malloy was a decision by the Arizona
Supreme Court, which we cannot overrule, modify, or disregard. State v.
Sullivan, 205 Ariz. 285, 288, ¶ 15 (App. 2003). For that reason, to the extent
that Engram stands for a rule inconsistent with Malloy, it is not persuasive
authority. The rule in Arizona is the Supreme Court’s holding in Malloy,
and we apply it here. Because trespass is not a lesser-included offense of
burglary as a matter of law, we conclude that the trial court did not err.

¶20            Taylor next argues that based on the facts of this case, trespass
is a lesser-included offense of burglary. Taylor’s argument is contrary to
well-established Arizona law. In Arizona, a defendant may ask for a lesser-
included-offense instruction only if the requested instruction deals with an
offense that (1) is a lesser-included offense by its nature or as charged and
(2) is supported by the facts. State v. Mitchell, 138 Ariz. 478, 479 (App. 1983)
(citing State v. Celaya, 135 Ariz. 248 (1983)). Here, trespass is not a lesser-
included offense, ¶ 19, supra, nor was it charged as one. Thus, it does not
matter whether the facts would have supported the charge. State v. Teran,
130 Ariz. 277, 278 (1981).

¶21             Finally, Taylor argues that the trial court committed
fundamental error by failing to issue the mere-presence instruction he
requested. We perceive no fundamental error. Taylor was caught moving
room-to-room in an obviously burglarized, nonresidential building after
midnight. Though the court could properly have given the instruction, the
facts of this case did not require it.




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                    STATE v. TAYLOR
                   Decision of the Court

                      CONCLUSION

¶22   For the foregoing reasons, we affirm.




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




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