STATE v. JACKSON

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NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) KENNETH CASEY JACKSON, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 12/27/2012 RUTH A. WILLINGHAM, CLERK BY: GH No. 1 CA-CR 11-0901 DEPARTMENT D MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-164957-001 DT The Honorable Carolyn A. Passamonte, Judge Pro Tempore AFFIRMED Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Assistant Attorney General Attorneys for Appellee Arizona Department of Economic Security James J. Haas, Maricopa County Public Defender By Terry J. Reid, Deputy Public Defender Attorneys for Appellant Phoenix B R O W N, Judge ¶1 Kenneth Casey Jackson appeals from his conviction and resulting sentence for burglary in the third degree, a class four felony. For the following reasons, we affirm. BACKGROUND 1 ¶2 In the early morning hours of July 11, 2009, Jackson parked his car outside a residence in Paradise Valley and scaled the six-foot high wall surrounding the property. Security cameras captured video showing Jackson as he opened the driver s side door of the victim s vehicle, which was left unlocked in the front driveway. Without permission, and using a flashlight, he looked around the car and eventually opened the trunk. ¶3 Meanwhile, Sergeant C., who was providing overnight private security services for the owners of the residence, heard a sound like a metal door or lid or metal on metal closing and walked out to the driveway to investigate. He noticed the vehicle s trunk was open and that a light was coming from the inside of the passenger area. investigate, pointing his Jackson light yelling profanities. came in As he approached the car to around Sergeant from C. s the face driver s and side, aggressively Sergeant C. identified himself as a police officer and Jackson calmed down. ¶4 ensued. damaged, Sergeant C. Nothing was and the called for missing officers backup from the not find did and vehicle, any devices on Jackson, except the flashlight. 1 an investigation it tools was or not other When questioned, We view the facts in the light most favorable to sustaining the jury s verdict. State v. Salman, 182 Ariz. 359, 361, 897 P.2d 661, 663 (App. 1994). 2 Jackson denied being in committing a burglary. the car, opening the trunk, or However, he offered conflicting stories as to why he was in a highly secured yard without permission in the middle of the night. To one officer, Jackson said his car had been burglarized, he chased the perpetrator over the wall into the property, and he then looked in the victim s car for the perpetrator. To another officer, he stated that a woman who was in his car grabbed money from his console, ran away, jumped over the wall into the secured property, and he jumped the wall in pursuit. Based on their investigation and their opinions that the stories were fabricated, the officers arrested Jackson. ¶5 The State indicted Jackson on two counts of third- degree burglary, in violation of Arizona ( A.R.S. ) section 13-1506(A)(1) (2010). 2 on his unlawful presence in a fenced Revised Statutes Count 1 was premised residential yard and Count 2 was premised on his unlawful presence in . . . a nonresidential dismiss structure. Count 1 without Prior to trial, prejudice, the which State the moved trial to court granted. ¶6 State s A jury trial was held on Count 2. evidence, Jackson moved for a At the close of the Rule 20 judgment of acquittal, arguing the State failed to prove beyond a reasonable 2 Absent material revisions after the relevant date, we cite a statute s current version. 3 doubt that Jackson intended to commit a theft or felony in the vehicle. The court denied the motion and submitted the case to the jury, which returned a guilty verdict. The court found Jackson had two prior felony convictions and sentenced him to a mitigated term of eight years imprisonment. This timely appeal followed. DISCUSSION ¶7 Jackson argues support his conviction. there is insufficient evidence to We resolve all reasonable inferences and conflicts in the evidence against a defendant, and we will affirm the conviction if there is substantial evidence to support the guilty verdict. 293, 778 P.2d 1185, 1189 State v. Guerra, 161 Ariz. 289, (1989) (internal quotations and citations omitted). Substantial evidence is more than a mere scintilla . . . but it nonetheless must be evidence that reasonable could persons accept as sufficient guilty verdict beyond a reasonable doubt. to support a State v. Stroud, 209 Ariz. 410, 411-12, ¶ 6, 103 P.3d 912, 913-14 (2005) (internal quotations and citation omitted). The substantial evidence required to warrant a conviction may be either circumstantial or direct, and a conviction circumstantial evidence. may be sustained solely on State v. Blevins, 128 Ariz. 64, 67, 623 P.2d 853, 856 (App. 1981) (citation omitted). 4 ¶8 To convict Jackson of third-degree burglary, the State was required to prove beyond a reasonable doubt that (1) Jackson entered or remained unlawfully, (2) in or on a nonresidential structure, (3) with the intent to commit any theft or any felony therein. A.R.S. § 13-1506(A)(1). Jackson disputes only the third element, asserting the State did not present sufficient evidence of his intent to commit a theft or felony in the vehicle. 399 Relying on State v. Rood, 11 Ariz. App. 102, 462 P.2d (1969), he argues the State failed to meet its burden because it did not provide any independent evidence other than Jackson s presence in the vehicle to show his intent. ¶9 In Rood, our court reversed a third-degree burglary conviction for insufficiency of the evidence. 104-05, 462 P.2d at 402-03. 11 Ariz. App. at Jackson believes Rood resolves the issue before us; however, we read that case as supporting the general proposition that we look to the totality of the circumstances in each case to determine whether intent to commit a theft can be inferred. See id. at 104, 462 P.2d at 401 ( We distinguish this case from those in which the mode of entry is something more suspicious than simply walking into a building through an unlocked door. ); see also State v. Ortiz, 9 Ariz. App. 116, inferences 119, 449 can be P.2d 953, 956 (1969) (noting drawn from the totality of sufficient circumstances, flight, presence, time and place, and an absence of any rational 5 explanation conviction). for the defendant s presence to sustain Thus, the unique factual situation in Rood does not justify reversal here. ¶10 Under a totality of the circumstances analysis, sufficient evidence exists in the record to support the intent element of burglary. See State v. Routhier, 137 Ariz. 90, 99, 669 P.2d 68, 77 (1983) (recognizing that intent must often be shown by circumstantial evidence such as a defendant s conduct and comments); see also State v. Noriega, 187 Ariz. 282, 286, 928 P.2d 706, 710 (App. 1996) (stating that a jury will usually have to infer [intent] from [a defendant s] behaviors and other circumstances surrounding the event ). Jackson climbed over a six-foot fence surrounding a highly secured home at 3:30 in the morning. He approached the victim s car and opened the door. With a flashlight, he rummaged around the inside of the vehicle and then opened the trunk of the car. continue, however, he was apprehended. Before his search could After being caught, Jackson gave two versions of why he was on the property at such an early morning hour without permission. ¶11 Based on this evidence, a jury could infer that (1) Jackson entered the secured yard of the private residence with the intent to commit a crime; (2) he used the flashlight to search for items of value in the vehicle; (3) he opened the trunk because he was unable to find anything of value in the 6 passenger compartment; and (4) he was untruthful because he gave inconsistent could explanations reasonably evidence, for conclude considered in his the light behavior. State of Thus, presented all of the the jury sufficient relevant circumstances, that Jackson intended to commit a theft within the vehicle. CONCLUSION ¶12 For the foregoing reasons, we affirm Jackson s conviction and sentence. _/s/_____________________________ ___ MICHAEL J. BROWN, Presiding Judge CONCURRING: _/s/__________________________________ ANDREW W. GOULD, Judge _/s/__________________________________ DONN KESSLER, Judge 7

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