                              IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


                      THE STATE OF ARIZONA,
                             Appellee,

                                 v.

                         ANTHONY LEWIS,
                           Appellant.

                      No. 2 CA-CR 2013-0323
                      Filed December 10, 2014


          Appeal from the Superior Court in Pima County
                       No. CR20090879001
             The Honorable Deborah Bernini, Judge

                   AFFIRMED AS MODIFIED


                            COUNSEL

Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Eliza C. Ybarra, Assistant Attorney General, Phoenix
Counsel for Appellee

Lori J. Lefferts, Pima County Public Defender
By David J. Euchner and Erin K. Sutherland,
Assistant Public Defenders, Tucson
Counsel for Appellant
                         STATE v. LEWIS
                        Opinion of the Court


                             OPINION

Judge Howard authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Vásquez concurred.


H O W A R D, Judge:

¶1            After a jury trial, appellant Anthony Lewis was
convicted of one count of first-degree murder, two counts of
aggravated assault, and one count of second-degree burglary. On
appeal, Lewis argues the trial court erroneously found him
competent to stand trial and erred in its instructions to the jury on
his first-degree murder charge. For the following reasons and those
expressed in a separate memorandum decision, we affirm the
convictions and sentences, except as stated in the memorandum
decision.1

                Factual and Procedural Background

¶2           We view the record in the light most favorable to
upholding the jury’s verdicts. State v. Robles, 213 Ariz. 268, ¶ 2, 141
P.3d 748, 750 (App. 2006). Lewis and the victim, A.H., had lived
together in Tucson near the end of 2007 and beginning of 2008.
After an altercation between the two in January 2008, A.H. obtained
an injunction against harassment by Lewis, which he violated later
that month. A.H. subsequently moved to a different home, miles
from where she had lived with Lewis.

¶3          At some point, Lewis learned of A.H.’s new address.
On September 21, A.H. returned home from a camping trip and
discovered that Lewis had broken into her home while she was
away. She also discovered a voicemail message from Lewis in


      1Lewis  raises other issues related to sentencing that do not
meet the criteria for publication. See Ariz. R. Sup. Ct. 111(b). We
address them in a separate, contemporaneously filed memorandum
decision. See Ariz. R. Sup. Ct. 111(h); Ariz. R. Crim. P. 31.26.

                                  2
                         STATE v. LEWIS
                        Opinion of the Court

which he said, “[Y]ou’ll never guess where I am. I’m inside your
house. Oh, what’s that? What’s this over here?” A.H. called 9-1-1
to report the break-in. When the police arrived, they found Lewis in
A.H.’s yard. The police arrested him, and, following his initial
appearance that same day, the justice court released him with an
instruction not to return to A.H.’s residence.

¶4          The next day, September 22, Lewis returned to A.H.’s
home, poured gasoline or some other kind of accelerant on her, and
lit her on fire. A.H., naked and on fire, ran next door to her
neighbor’s house; the neighbor placed her under running water in
his shower and called 9-1-1. A.H. identified Lewis as her assailant
when officers arrived at the neighbor’s home. Five months after the
incident, A.H. died from complications related to her extensive
burns.

¶5            The grand jury indicted Lewis on one count of first-
degree murder, two counts of aggravated assault, and one count of
first-degree burglary for the events that occurred on September 22.
It also indicted him on one count of second-degree burglary for the
break-in discovered on September 21. The jury found Lewis guilty
of all but the first-degree burglary charge. The trial court sentenced
him to an aggravated prison term of seven years for his second-
degree burglary conviction, two aggravated terms of fifteen years
for the assault convictions, both of which were to be served
consecutively to the burglary sentence and to each other, and to
natural life in prison on the first-degree murder charge, to be served
concurrently with the sentences for aggravated assault.2 We have
jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1)
and 13-4033(A)(1).




      2The   sentencing minute entry states Lewis waived his right to
a jury trial and pled guilty. But the record is clear that Lewis was
tried by a jury, and during the oral pronouncement of sentence, the
court correctly stated Lewis had been found guilty of the charges by
a jury.

                                  3
                          STATE v. LEWIS
                         Opinion of the Court

                     Competency to Stand Trial

¶6         Lewis argues the trial court abused its discretion in
finding him competent to stand trial without any evidence
demonstrating    successful   restoration  despite   previously
determining him to be incompetent.

¶7           After Lewis filed a motion pursuant to Rule 11.2,
Ariz. R. Crim. P., the court ordered an examination of his
competence and subsequently found him not competent to stand
trial and ordered restoration treatment. After two attempts at
restoration and further hearings, the court ultimately found Lewis
competent.

¶8             We review the trial court’s competency determinations
for abuse of discretion. State v. Glassel, 211 Ariz. 33, ¶ 27, 116 P.3d
1193, 1204 (2005). We do not reweigh the evidence. State v. Arnoldi,
176 Ariz. 236, 239, 860 P.2d 503, 506 (App. 1993), overruled on other
grounds by State v. Jones, 235 Ariz. 501, ¶ 10, 334 P.3d 191, 193 (2014).
Instead, “[w]e must determine whether reasonable evidence
supports the trial court’s finding that the defendant was competent,
considering the facts in the light most favorable to sustaining the
trial court’s findings.” Glassel, 211 Ariz. 33, ¶ 27, 116 P.3d at 1204.

¶9             Competency is an “extremely narrow issue” focused on
the test articulated by Rule 11.1, Ariz. R. Crim. P. See State v.
Steelman, 120 Ariz. 301, 315, 585 P.2d 1213, 1227 (1978). A defendant
is incompetent to stand trial when, “as a result of mental illness,
defect, or disability, the person is unable to understand the
proceedings against him or her or to assist in his or her own
defense.” Ariz. R. Crim. P. 11.1; see also A.R.S. § 13-4501(2). The fact
that a defendant suffers from a mental illness, defect, or disability is
not, by itself, grounds for finding the defendant incompetent. § 13-
4501(2); Ariz. R. Crim. P. 11.1. Thus, a defendant found to have an
intellectual disability is “not shielded from trial” automatically.
State v. Grell, 212 Ariz. 516, ¶ 38, 135 P.3d 696, 705 (2006).

¶10          If the trial court finds the defendant incompetent, the
court “shall order competency restoration treatment unless there is
clear and convincing evidence that [the] defendant will not regain

                                   4
                          STATE v. LEWIS
                         Opinion of the Court

competency within 15 months.” Ariz. R. Crim. P. 11.5(b)(3). The
initial determination of incompetence raises a rebuttable
presumption of continued incompetence. State v. Hehman, 110 Ariz.
459, 460, 520 P.2d 507, 508 (1974); State v. Blazak, 110 Ariz. 202, 204,
516 P.2d 575, 577 (1973). Nevertheless restoration treatment most
often results in restoration to competence or a discovery the
defendant had been malingering. Grell, 212 Ariz. 516, ¶ 39, 135 P.3d
at 705.

¶11           Lewis argues that, after finding a defendant
incompetent, a trial court cannot find the defendant competent
unless “a positive change in condition [is] presented, and there [is]
evidence presented that the restoration efforts were successful.” He
relies on the following language quoted in Nowell v. Rees:

             “For competency to be restored or regained
             there must be a positive change in the
             defendant’s condition indicating that he is
             now able to understand the proceedings
             against him and assist his own defense,
             whereas he could not previously do so. It
             is not enough for a new expert to disagree
             with the previous determination. A new
             expert must be able to explain that
             restoration efforts were effective, and the
             trial court must make findings to that
             effect.”

219 Ariz. 399, ¶ 4, 199 P.3d 654, 657 (App. 2008), quoting Nowell v.
Hintze, No. 1 CA-SA 06-0236, 3 (decision order filed Mar. 22, 2007).

¶12          Lewis’s reliance on Nowell for this proposition is
misplaced. The statement relied on is a quote from an unpublished
decision, was dictum as to the published opinion in Nowell, and did
not create binding precedent. See Creach v. Angulo, 186 Ariz. 548,
552, 925 P.2d 689, 693 (App. 1996); see also Ariz. R. Sup. Ct. 111(c);
Ariz. R. Crim. P. 31.24. The issue decided in Nowell was whether the
trial court had authority to order competency restoration treatment
for more than twenty-one months after an initial finding of
incompetence. 219 Ariz. 399, ¶¶ 12, 27-28, 199 P.3d at 659, 662. This
                                   5
                          STATE v. LEWIS
                         Opinion of the Court

court’s opinion did not concern the evidence necessary to overcome
the presumption of continued incompetence, and the court “may not
have been fully advised on the question.” Creach, 186 Ariz. at 552,
925 P.3d at 693.

¶13           Further, Nowell does not address whether the
subsequent discovery that a defendant had been malingering will
overcome this presumption. See 219 Ariz. 399, ¶¶ 12-27, 199 P.3d at
659-62. And Lewis does not cite to any Arizona case suggesting a
subsequent discovery of malingering is not sufficient to overcome
this burden.3 Nor does he explain how the state could show a
malingering defendant has been restored to competence when the
defendant does not, in reality, lack the competence to stand trial.
Accordingly, we reject Lewis’s contention that a positive change in a
defendant’s condition and successful restoration is always required
before a trial court can find competent a defendant previously found
incompetent.

¶14           We accept, however, the premise that the trial court
cannot make a subsequent finding of competence unless some new
evidence—either of restoration or malingering—is presented to
rebut the presumption of continued incompetence. But, as with
other rebuttable presumptions, the presumption of continued
incompetence “disappears entirely upon the introduction of any
contradicting evidence and when such evidence is introduced the
existence or non-existence of the presumed [incompetence] is to be
determined exactly as if no presumption had ever been operative.”
Sheehan v. Pima County, 135 Ariz. 235, 238, 660 P.2d 486, 489 (App.
1982); cf. State v. Grilz, 136 Ariz. 450, 455, 666 P.2d 1059, 1064 (1983)
(presumption of sanity “vanishes once [defendant] presents
sufficient evidence to raise a reasonable doubt as to sanity”). Thus,
evidence demonstrating the defendant is competent or invalidating

      3In fact, in describing the competency restoration process, the
Arizona Supreme Court has suggested that the discovery of
malingering will overcome this presumption. Grell, 212 Ariz. 516,
¶ 39, 135 P.3d at 705 (noting that, in event of either restoration to
competence or discovery of malingering, defendant can be tried and
punished).

                                   6
                          STATE v. LEWIS
                         Opinion of the Court

the original determination of incompetence, such as evidence of
malingering, will suffice to remove the presumption of continued
incompetence. Cf. State v. Arellano, 213 Ariz. 474, ¶ 13, 143 P.3d 1015,
1018 (2006) (rebuttable presumption of intellectual disability4
“vanishes” when state presents evidence intelligence quotient scores
invalid or other evidence capital defendant not suffering from
intellectual disability).

¶15           At oral argument, Lewis asked this court to adopt a rule
requiring the state to present clear and convincing evidence of
competence to rebut the presumption. But our supreme court
adopted a rebuttable presumption of continued incompetence. State
v. Bradley, 102 Ariz. 482, 487, 433 P.3d 273, 278 (1967), overruled on
other grounds by State v. Harvill, 106 Ariz. 386, 391, 476 P.2d 841, 846
(1970). Lewis’s suggested heightened standard would contradict the
general rule that a presumption vanishes with the introduction of
“any contradicting evidence.” Sheehan, 135 Ariz. at 238, 660 P.2d at
489 (emphasis added); see also Seiler v. Whiting, 52 Ariz. 542, 548, 84
P.2d 452, 454 (1938) (presumption exists “in the absence of any evidence
to the contrary”). And we are not at liberty to ignore supreme court
precedent. Lear v. Fields, 226 Ariz. 226, ¶ 17, 245 P.3d 911, 917 (App.
2011). Further, Lewis has not produced any compelling rationale
that the state’s burden should be increased to the clear and
convincing standard. Thus we reject Lewis’s proposed rule.5 See

      4Although    Arellano uses the term “mental retardation,” in
2011, the legislature amended the capital sentencing statutes to
remove that term and replace it with “intellectual disability.” 2011
Ariz. Sess. Laws, ch. 89, § 5.
      5We   recognize that, if the state bears the burden of proof on a
defendant’s incompetence once the trial court has ordered a Rule 11
examination pursuant to Rule 11.2, Ariz. R. Crim. P., this
presumption provides little benefit to a defendant. Neither party
briefed the burden issue, but we assume for purposes of this opinion
that the state does bear the burden of proof. See State v. Romers, 159
Ariz. 271, 274, 766 P.2d 623, 626 (App. 1988) (noting in dictum that
state bears burden). We note that neither Rule 11.5, Ariz. R.
Crim. P., nor A.R.S. § 13-4510 allocate the burden of proof. Because
we conclude the court’s competency determination here “did not
                                     7
                        STATE v. LEWIS
                       Opinion of the Court

Golonka v. Gen. Motors Corp., 204 Ariz. 575, ¶ 50, 65 P.3d 956, 971
(App. 2003) (adhering to general rules for rebuttable presumptions
where neither substantive common law nor statute creating
presumption compels otherwise).

¶16           Here, the record shows contrary evidence sufficient to
rebut the presumption of continued incompetence, and reasonable
evidence supports the trial court’s finding that Lewis was competent
to stand trial. See Glassel, 211 Ariz. 33, ¶ 27, 116 P.3d at 1204.

¶17          After four months of treatment and observation, Dr.
Joseph, a forensic psychologist at the Pima County Restoration to
Competency Program (“RTC”), submitted her final report
concluding that Lewis had been malingering symptoms to
exaggerate the severity of his intellectual deficiencies and that he
was competent to stand trial. Joseph relied “on tests of effort,
motivation, and malingering” that indicated Lewis had been trying
to appear mentally ill by exaggerating or feigning symptoms.
Joseph further noted that Lewis’s behavior during interviews, his
telephone calls and medical requests while in custody, his
demonstrated ability to maintain employment, his educational
history, and observations of his behavior while in custody—
including a video of Lewis playing chess with another inmate—were
inconsistent with the extent of his poor performance on psychiatric
and cognitive tests. With this evidence before it, the court found
Lewis incompetent but still restorable, believing that restoration
treatment had been terminated prematurely.6




depend upon the allocation of the burden of proof,” we do not
decide the issue. United States v. Whittington, 586 F.3d 613, 617-18
(8th Cir. 2009) (noting federal statute on competency does not
allocate burden of proof and circuit courts split on the issue).
      6We  reject Lewis’s suggestion that the trial court “rejected”
Joseph’s report by finding Lewis incompetent. Nothing in the
minute entries containing those rulings shows the court determined
it would not give any weight to Joseph’s opinion.

                                 8
                        STATE v. LEWIS
                       Opinion of the Court

¶18          After nearly seven months of additional treatment and
observation, Dr. Christiansen, restoration supervisor and forensic
psychologist at the RTC, also concluded that Lewis had been
malingering and that he was competent to stand trial.
Christiansen’s report and his testimony were the only new evidence
submitted to the trial court for the last contested competency
hearing, the only new evidence upon which the trial court based its
ultimate determination that Lewis was competent.7

¶19         Lewis contends that Christiansen’s final opinion was
insufficient to overcome the presumption of continued
incompetence because it did nothing more than disagree with the
previous findings of incompetence and relied on much of the same
evidence on which Joseph had relied without further formal testing.
But these contentions are contradicted by the record.

¶20           Christiansen reviewed Joseph’s assessment and much of
the same data concerning Lewis’s behavior and history, yet he also
reviewed information gathered during the second attempt at
restoration. Psychiatric providers reported to Christiansen that
Lewis could not recall information he previously had been able to
recall in other interviews, unless the information asked about would
support a diagnosis of psychiatric disorder and thereby benefit him.
One provider reported that Lewis said he did not want to do
anything that would assist restoration treatment, and Lewis told a
social worker that another inmate and a guard told him not to talk to
RTC personnel. And his behavior with social workers and other
inmates at RTC showed few signs, if any, of mood or psychotic
disorders.

¶21          Additionally while Lewis continued to deny the details
of his own case, he was able to remember and relay details of his
cellmate’s legal proceedings and of a Texas criminal case in which a


      7We  note that a trial court is also allowed to rely on its own
observations of a defendant when determining competence. Glassel,
211 Ariz. 33, ¶ 28, 116 P.3d at 1204. But the record here does not
suggest that the court’s direct observations were a factor in the
ultimate determination of Lewis’s competence.

                                 9
                          STATE v. LEWIS
                         Opinion of the Court

man had been exonerated for murder after twenty-five years in
prison. At one point, he commented to a social worker about his
own case, saying in reference to the prosecution, “It’s about what
they can prove.” During Christiansen’s approximate total of four
hours meeting face-to-face with Lewis, Christiansen personally
observed that Lewis, despite his initial refusals to talk and denial of
understanding, eventually betrayed a greater understanding of his
case and the role of the RTC than what he initially portrayed.

¶22          Christiansen’s opinion did not rely exclusively on old
information. Rather, he formed his opinion relying, in part, on new
evidence gathered during nearly seven months of further restoration
treatment. Consequently, the trial court was entitled to rely on
Christiansen’s opinion as new evidence of malingering sufficient to
rebut the presumption of continued incompetence.

¶23            Lewis also contends that Christiansen did not dispute
evidence of Lewis’s low intelligence quotient, which suggested he
had a mild intellectual disability. But again, intellectual disability,
by itself, is not incompetence. See Grell, 212 Ariz. 516, ¶ 38, 135 P.3d
at 705. We find nothing improper in the trial court’s reliance on his
opinion.

¶24           Through Christiansen’s report and testimony, the state
adequately rebutted any presumption of continued incompetence.
And before making its ultimate ruling, the trial court reviewed
Lewis’s entire competency file, including all expert opinions
submitted on the issue, and made its determination by applying the
proper Rule 11.1 standard. Thus the court did not abuse its
discretion in determining Lewis was competent to stand trial. See
Glassel, 211 Ariz. 33, ¶ 27, 116 P.3d at 1204.

               Jury Instructions on Predicate Offense

¶25         Lewis also argues his conviction for first-degree murder
must be vacated because the trial court erred in instructing the jury
on third-degree burglary as the predicate offense for felony murder,
and because insufficient evidence supports the jury’s finding that
Lewis had committed this offense. Our analysis of the instructional
error disposes of the challenge to the sufficiency of the evidence.

                                  10
                           STATE v. LEWIS
                          Opinion of the Court

“Fenced Commercial or Residential Yard”

¶26          Lewis argues the trial court erred by failing to instruct
the jury that it was required to find he had entered a “fenced
residential yard” in order to be guilty of third-degree burglary. We
review de novo whether jury instructions properly state the law.
State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997). We
also review issues involving the interpretation of a statute de novo.
State v. Magnum, 214 Ariz. 165, ¶ 6, 150 P.3d 252, 254 (App. 2007).

¶27          Lewis was charged with first-degree murder and first-
degree burglary in connection with the events of September 22. On
the last day of trial, the state asked the trial court to instruct the jury
on third-degree burglary as a predicate offense for felony murder.
Lewis objected, contending he had no notice of that charge and that
third-degree burglary requires entry of a fenced residential yard,
rather than just any residential yard.

¶28        Over Lewis’s objection, the trial court gave the third-
degree burglary instruction. The court instructed the jury as
follows:

             For the limited purpose of determining
             whether the state has proven the
             underlying offense of burglary for
             purposes of felony murder, you may also
             consider whether the defendant entered or
             remained unlawfully in a residential yard,
             and did so with the intent to commit any
             felony therein. That would constitute a
             form of burglary that would support a
             charge of felony murder.

¶29          The jury found Lewis guilty of first-degree murder,
specifying in the verdict form its unanimous determination of guilt
based on the felony-murder theory; it also unanimously rejected the
premeditation theory. The jury acquitted Lewis of first-degree
burglary and the lesser-included offense of second-degree burglary
related to the events on September 22.


                                    11
                          STATE v. LEWIS
                         Opinion of the Court

¶30         On appeal, Lewis argues the jury’s rejection of the
premeditation theory and the acquittal on the September 22 burglary
charge indicate that it must have found him guilty of felony murder
based on the predicate offense of third-degree burglary. Thus, he
contends, the felony-murder conviction rests on a predicate offense
for which the jury received an erroneous instruction.8

¶31           Section 13-1506(A)(1), A.R.S., defines third-degree
burglary as “[e]ntering or remaining unlawfully in or on a
nonresidential structure or in a fenced commercial or residential
yard with the intent to commit any theft or felony therein.” The
parties disagree as to whether “fenced” modifies both commercial
yard and residential yard, or if it modifies commercial yard only.
And it appears that no other court has addressed the issue directly.
See State v. Johnson, 215 Ariz. 28, ¶ 17, 156 P.3d 445, 449 (App. 2007)
(referring to burglary in dictum as entrance into a “residential
yard”); see also State v. McKeon, 201 Ariz. 571, ¶ 30, 38 P.3d 1236, 1242
(App. 2002) (referring to burglary in dictum as entering or
remaining in “a fenced residential yard”); State v. Bass, 184 Ariz. 543,
546, 911 P.2d 549, 552 (App. 1995) (referring to third-degree burglary
in dictum as concerning a “residential yard”).


      8The    state argues Lewis’s assumption that third-degree
burglary was the predicate offense for the jury’s guilty verdict on a
felony-murder theory is incorrect because inconsistent verdicts are
allowed in Arizona and the jury may have “based its felony murder
conviction on first or second degree burglary, but still chosen not to
convict on either burglary charge because of compromise or
leniency.” The verdict form did not ask the jury to specify the
predicate offense that was the basis for the guilty verdict; the jury
could have based the verdict on third-degree burglary. Even if we
accept the state’s argument, we nevertheless must decide whether
third-degree burglary may be a predicate offense for felony murder
because we will reverse a conviction that “may have been based, in
whole or in part, on [an] impermissible felony murder theory.” See
State v. Lopez, 158 Ariz. 258, 266, 762 P.2d 545, 553 (1988) (reversing
conviction potentially based on felony-murder theory for which
record showed insufficient evidence to convict).

                                   12
                           STATE v. LEWIS
                          Opinion of the Court

¶32            “Our task in interpreting the meaning of a statute is to
fulfill the intent of the legislature that wrote it.” State v. Williams, 175
Ariz. 98, 100, 854 P.2d 131, 133 (1993). “In determining the
legislature’s intent, we initially look to the language of the statute
itself.” Bilke v. State, 206 Ariz. 462, ¶ 11, 80 P.3d 269, 271 (2003). If
the statute’s language is clear, we apply it “unless application of the
plain meaning would lead to impossible or absurd results.” Id. “If a
statute is ambiguous, we consider ‘the statute’s context, subject
matter, historical background, effects and consequences, and spirit
and purpose.’” State v. Filkes, 228 Ariz. 389, ¶ 6, 267 P.3d 1181,
1182-83 (App. 2011), quoting Zamora v. Reinstein, 185 Ariz. 272, 275,
915 P.2d 1227, 1230 (1996). Where no contrary legislative intent
appears from the statute’s language or context, we may utilize
grammatical rules to aid our construction of an ambiguous statute.
See Pawn 1st, L.L.C. v. City of Phoenix, 231 Ariz. 309, ¶¶ 16, 19, 294
P.3d 147, 149-50 (App. 2013).

¶33          The cases cited above demonstrate, albeit in dicta, the
language in § 13-1506(A)(1) could support either interpretation. It
could mean a fenced commercial or any residential yard, or a fenced
commercial or fenced residential yard. Accordingly, we conclude
the statute is ambiguous, and we must apply rules of statutory
construction to determine its meaning. See Filkes, 228 Ariz. 389, ¶ 6,
267 P.3d at 1182-83.

¶34          We first look to the statute’s context and surrounding
sections. See id. “[O]ur statutory scheme . . . sets forth no less than
three levels each of burglary and trespass . . . .” State v. Hinden, 224
Ariz. 508, ¶ 13, 233 P.3d 621, 624 (App. 2010); see A.R.S. §§ 13-1502
through 13-1504 (trespass); A.R.S. §§ 13-1506 through 13-1508
(burglary). In the statute defining first-degree criminal trespass, the
legislature explicitly distinguished between fenced residential yards
and all residential yards by using the phrases, “fenced residential
yard” and “any residential yard” to distinguish between different
criminal acts. § 13-1504(A)(2), (3) (emphasis added). Thus, when
the legislature has intended to criminalize an act committed in both
fenced and unfenced residential yards in this statutory scheme, it
has done so explicitly and unambiguously. Cf. State v. Peek, 219
Ariz. 182, ¶ 19, 195 P.3d 641, 644 (2008) (“When the legislature
intends to include attempts, it knows how to do so.”).
                                   13
                          STATE v. LEWIS
                         Opinion of the Court

¶35           We next apply grammatical rules to aid in our
construction. See Pawn 1st, 231 Ariz. 309, ¶ 19, 294 P.3d at 150. One
general rule of syntax is that “‘an initial modifier will tend to govern
all elements in the series unless it is repeated for each element.’”
Cady v. Schroll, 317 P.3d 90, 96 (Kan. 2014), quoting Wash. Educ. Ass’n
v. Nat’l Right to Work Legal Def. Found., Inc., 187 Fed. App’x 681, 682
(9th Cir. 2006). Courts will employ this rule when its application
does not conflict with other principles of statutory construction.
See, e.g., Cady, 317 P.3d at 96-99 (noting rule but finding it
inapplicable to phrase “vicarious liability or responsibility,” in part
because its application would render word “responsibility”
meaningless); see also Long v. United States, 199 F.2d 717, 719 (4th Cir.
1952) (“forcibly” modifies all verbs in phrase “forcibly assaults,
resists, opposes, impedes, intimidates, or interferes with”); State v.
Huggins, 802 So. 2d 276, 277-79 (Fla. 2001) (“occupied” modifies both
nouns in phrase “occupied structure or dwelling” in burglary
statute); Rounsavell v. Tipton, 497 P.2d 108, 109 (Kan. 1972)
(“restricted” modifies both registered mail and certified mail in
phrase “restricted registered or certified mail”); Wash.-Va. Ry. Co. v.
Fisher, 92 S.E. 809, 811 (Va. 1917) (“county” modifies both nouns in
phrase “county roads or highways”).

¶36           Applying this rule of syntax, “fenced” modifies both
“commercial yard” and “residential yard” in the phrase “fenced
commercial or residential yard.” See Rounsavell, 497 P.2d at 109.
This construction gives effect to each of the words in the phrase and
does not conflict with other principles of statutory interpretation.
See Cady, 317 P.3d at 96. Further, nothing in the language or context
of § 13-1506 suggests that this construction conflicts with the
legislative intent behind the statute. See Pawn 1st, 231 Ariz. 309,
¶ 19, 294 P.3d at 150.

¶37           We conclude that “fenced commercial or residential
yard” in § 13-1506 refers to fenced commercial or fenced residential
yards, and it does not include unfenced residential yards. Thus the
trial court erred in instructing the jury on third-degree burglary in
this case. See State v. Moody, 208 Ariz. 424, ¶ 191, 94 P.3d 1119, 1161
(2004) (instruction that misstates law is error).


                                   14
                          STATE v. LEWIS
                         Opinion of the Court

¶38           “Erroneous jury instructions are subject to a harmless
error analysis.” State v. Dann, 205 Ariz. 557, ¶ 18, 74 P.3d 231, 239
(2003). “An error is harmless if it appears ‘beyond a reasonable
doubt that the error . . . did not contribute to the verdict obtained.’”
Id., quoting Chapman v. California, 386 U.S. 18, 24 (1967). If a rational
jury could find that the element omitted from the jury instructions
had not been established beyond a reasonable doubt, then the error
is not harmless. Id. The state has the burden of establishing that the
error is harmless. State v. Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d
601, 607 (2005).

¶39          The state has met this burden by relying on evidence in
the record showing no rational jury could have had a reasonable
doubt A.H.’s yard was fenced. A “fenced residential yard” is “a unit
of real property that immediately surrounds or is adjacent to a
residential structure and that is enclosed by a fence, wall, building
or similar barrier or combination of fences, walls, buildings or
similar barriers.” A.R.S. § 13-1501(5). The photographs of A.H.’s
property in the record clearly show that her backyard was enclosed
by a combination of fences, gates, bushes, and trees forming a
barrier. Witnesses familiar with A.H.’s yard also described a
combination of fences, gates, bushes, and foliage separating A.H.’s
yard from her neighbors’ yards and her back alley.

¶40         Nevertheless, Lewis argues that a gate on one side of
the house “does not seem to connect to anything,” but the
photographs cited by Lewis in support for this claim show
otherwise. Consequently, this argument is unavailing.

¶41           Lewis further contends that “[t]he evidence presented at
. . . trial does not permit a finding that the residential yard was
‘fenced’” because it was not “enclosed” as required by the definition
of “fenced residential yard” in § 13-1501(5). Lewis supports this
contention by alleging, with little supporting evidence, that the gates
to the yard were “rarely if ever closed” or were “propped open.” He
cites testimony that one of the fences was “really ratty, really half
broken down.” Lewis further alleges that one side of the house has
“no fence or gate at all” but only shrubbery.



                                   15
                          STATE v. LEWIS
                         Opinion of the Court

¶42           But the existence of a barrier, not its quality, is what the
fact-finder must determine to decide whether a yard is “enclosed”
under § 13-1501(5). Lewis cites no authority to support his
restrictive reading of § 13-1501(5). “Absent statutory definitions,
courts apply common meanings and may look to dictionaries.” State
v. Pena, 235 Ariz. 277, ¶ 6, 331 P.3d 412, 414 (2014) (internal citation
omitted). The relevant dictionary definitions of “enclose” are “[t]o
surround on all sides; close in” and “[t]o fence in so as to prevent
common use.” The American Heritage Dictionary 587 (5th ed. 2011).
Nothing in this definition suggests that a yard must be impenetrable
to be enclosed, and we see no reason that an open gate or a “ratty”
fence would make a residential yard any less “enclosed.” The fence
was sufficient to prevent common use of the back yard. As to
Lewis’s shrubbery concern, the definition of “fenced residential
yard” includes yards that are enclosed with barriers other than
fences. See § 13-1501(5) (“fence, wall, building, or similar barrier”).
Consequently, we decline to adopt Lewis’s restrictive interpretation
of “fenced residential yard.”

¶43           For the foregoing reasons, we find that the error in the
jury instruction was harmless, and we will not disturb the jury’s
first-degree murder verdict on these grounds. See Dann, 205 Ariz.
557, ¶ 18, 74 P.3d at 239.

Requested Criminal Trespass Instruction

¶44           Lewis further argues the trial court committed
reversible error in refusing to give the jury his requested instruction
on criminal trespass as a “theory of the case.” We review a court’s
refusal to give a requested jury instruction for an abuse of discretion.
State v. Dann, 220 Ariz. 351, ¶ 51, 207 P.3d 604, 616-17 (2009). A
party is not entitled to an instruction on a theory of the case unless
the evidence reasonably supports it. State v. Bolton, 182 Ariz. 290,
309, 896 P.2d 830, 849 (1995). The failure to give an instruction that
is reasonably supported by the evidence is reviewed for harmless
error. State v. Rodriguez, 192 Ariz. 58, ¶ 27, 961 P.2d 1006, 1011
(1998).

¶45         After the trial court agreed to give the state’s instruction
on third-degree burglary, Lewis asked for an instruction on criminal

                                   16
                          STATE v. LEWIS
                         Opinion of the Court

trespass, both as a lesser-included offense of first-degree burglary
and as a “theory of the case.” The court refused to give the
instruction as a lesser-included offense and as a “theory of the case,”
stating, “I don’t think I can give a theory of the case that’s contrary
to appellate case law or that in any way would confuse the jury as to
what the law actually is.”

¶46          “A defendant is not entitled to an instruction on an
uncharged offense that does not qualify as a lesser-included offense,
even if he might have been charged and convicted of the offense.”
State v. Gonzalez, 221 Ariz. 82, ¶ 8, 210 P.3d 1253, 1255 (App. 2009).
And characterizing the uncharged offense as a “theory of the case”
does not entitle the defendant to an instruction. See State v. Keel, 137
Ariz. 532, 534, 672 P.2d 197, 199 (App. 1983); see also State v. Teran,
130 Ariz. 277, 279, 635 P.2d 870, 872 (App. 1981).

¶47           In Teran, the defendant appealed his conviction for theft
on the ground that the trial court had denied his request for an
instruction and verdict form on shoplifting. 130 Ariz. at 278, 635
P.2d at 871. Even though shoplifting was not a lesser-included
offense of theft, the defendant argued that the instruction should
have been given as a “theory of the case” instruction because “he
should [have been] entitled to have the jury decide between the two
offenses.” Id. We rejected this argument because “a finding that
[defendant] was guilty of shoplifting would not mean that he was
innocent of the theft charge.” Id. In Keel, we rejected a “theory of
the case” argument when a defendant claimed he was entitled to a
criminal trespass instruction during trial on a charge of attempted
theft. 137 Ariz. at 534, 672 P.2d at 199. We noted that “a finding that
[defendant] was guilty of trespass would not mean he could not be
guilty of attempted theft.” Id.

¶48          In this case, the trial court did not abuse its discretion in
refusing the requested instruction. Criminal trespass is not a lesser-
included offense of burglary, State v. Kozan, 146 Ariz. 427, 428-29,
706 P.2d 753, 754-55 (App. 1985), and Lewis was not entitled to an
instruction on it so that the jury could choose to find he committed a
less serious crime if it was doubtful about felonious intent, see
Gonzalez, 221 Ariz. 82, ¶ 8, 210 P.3d at 1255.

                                   17
                          STATE v. LEWIS
                         Opinion of the Court

¶49          Nor was criminal trespass a “theory of the case”
because a finding of criminal trespass by the jury would not have
meant that Lewis was not guilty of third-degree burglary. See Keel,
137 Ariz. at 534, 672 P.2d at 199; see also Teran, 130 Ariz. at 278, 635
P.2d at 871. His theory of the case was simply that he was not guilty
of burglary, and the absence of a criminal trespass instruction did
not affect that argument. Further, the jury had been properly
instructed on the felonious intent element of burglary, and an
instruction on criminal trespass would have, if anything, “do[ne]
nothing more than reiterate[d] or enlarge[d] the instructions in
defendant’s language.” See Bolton, 182 Ariz. at 309, 896 P.2d at 849.
The trial court properly refused Lewis’s proposed criminal trespass
instruction, and we uphold the first-degree murder conviction.

                             Disposition

¶50          Based on the foregoing, we affirm Lewis’s convictions
on all counts and his sentences on first-degree murder in count one,
aggravated assault in count three, and second-degree burglary in
count five. For the reasons discussed in the contemporaneously
filed, separate memorandum decision, we modify Lewis’s sentence
for aggravated assault in count two to be served concurrently with
the sentence for aggravated assault in count three.




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