State of Arizona v. Tynerial Ray Kindred , 232 Ariz. 611 ( 2013 )

FILED BY CLERK
IN THE COURT OF APPEALS SEP -6 2013
STATE OF ARIZONA
COURT OF APPEALS
DIVISION TWO DIVISION TWO
THE STATE OF ARIZONA, )
) 2 CA-CR 2012-0479
Appellee, ) DEPARTMENT B
)
v. ) OPINION
)
TYNERIAL RAY KINDRED, )
)
Appellant. )
)
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY
Cause No. CR20122560001
Honorable Richard S. Fields, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz and David A. Sullivan Tucson
Attorneys for Appellee
Harriette P. Levitt Tucson
Attorney for Appellant
E C K E R S T R O M, Judge.
¶1 Tynerial Kindred appeals from his second-degree burglary conviction,
arguing the evidence was insufficient to support his conviction because he did not gain
entry into the structure and there was no evidence he intended to commit theft or a felony
within. We affirm.
¶2 “We construe the evidence in the light most favorable to sustaining the
verdict, and resolve all reasonable inferences against the defendant.” State v. Greene,
192 Ariz. 431, ¶ 12, 967 P.2d 106, 111-12 (1998). In June 2012, an apartment complex
leasing agent called 9-1-1 after seeing Kindred unscrew the light bulb in the front-porch
light of a vacant second-story apartment and then “fidget[] with the doorknob,” while
another man stood nearby. When police arrived, they found Kindred, who had attempted
to jump from the landing, dangling by his hands from the front landing, while the other
man lay flat on the landing. Police officers found a pry bar wedged between the
apartment’s door and door jamb, “about a quarter of the way into the door by the master
lock.” Although the door remained closed with the deadbolt intact, the “frame [was] ajar
a little bit” and there was a visible gap between the door and frame. Kindred’s
companion was carrying a pair of gloves, and another pair was found near where Kindred
had been dangling.
¶3 Kindred was convicted after a jury trial of second-degree burglary and
possession of burglary tools. The trial court sentenced him to concurrent prison terms,
the longest of which was 6.5 years. This appeal followed.
¶4 Kindred first argues the evidence was insufficient to support his conviction
for second-degree burglary because he did not enter the apartment as that term is defined
2
by A.R.S. § 13-1501(3). “Th[e] question of sufficiency of the evidence is one of law,
subject to de novo review on appeal.” State v. West, 226 Ariz. 559, ¶ 15, 250 P.3d 1188,
1191 (2011). “‘[T]he relevant question is whether, after viewing the evidence in the light
most favorable to the prosecution, any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt.”’ Id. ¶ 16, quoting State v. Mathers,
165 Ariz. 64, 66, 796 P.2d 866, 868 (1990) (emphasis omitted). Thus, “[w]hen
reasonable minds may differ on inferences drawn from the facts, the case must be
submitted to the jury, and the trial judge has no discretion to enter a judgment of
acquittal.” State v. Lee, 189 Ariz. 590, 603, 944 P.2d 1204, 1217 (1997).
¶5 A person commits second-degree burglary by “entering or remaining
unlawfully in or on a residential structure with the intent to commit any theft or any
felony therein.” A.R.S. § 13-1507(A). “‘Entry’ means 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.” § 13-1501(3). Kindred argues that he only compromised “the
exterior of the door jam[b]” with the pry bar and he therefore “had not gained entry.”
¶6 Our primary purpose in interpreting a statute is to give effect to the
legislature’s intent. State v. Ross, 214 Ariz. 280, ¶ 22, 151 P.3d 1261, 1264 (App. 2007).
“We look first to the statute’s language because we expect it to be ‘the best and most
reliable index of a statute’s meaning.’” State v. Williams, 175 Ariz. 98, 100, 854 P.2d
131, 133 (1993), quoting Janson v. Christensen, 167 Ariz. 470, 471, 808 P.2d 1222, 1223
(1991). If the statute’s language is plain and unambiguous, we look no further. Id. But,
“[i]f a statute is ambiguous, we consider ‘the statute’s context, subject matter, historical
3
background, effects and consequences, and spirit and purpose.’” State v. Fikes, 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).
¶7 In support of his argument, Kindred relies on dictionary definitions of the
terms “intrusion” and “inside.” Quoting The New American Webster Handy College
Dictionary, he states the definition of “intrusion” is “the act or result of intruding; an
unwelcome visit or entrance” and that “inside” means “in or into; within a body or limit;
the inner part; the interior region.” Nothing in these definitions would prohibit a
conclusion that the pry bar entered the apartment by intruding past the outer threshold of
the door. The pertinent question is instead whether the “external boundar[y]” of the
structure, as that phrase is used in § 13-1501(3), is the exterior of the door, or whether a
person or instrument must penetrate past the door in order to enter the structure.
¶8 Despite the fact that Arizona’s burglary statute differs in several ways from
the common law, it retains the common law requirement of entry. See In re Maricopa
Cnty. Juv. Action No. J-75755, 111 Ariz. 103, 105-06, 523 P.2d 1304, 1306-07 (1974);
State v. Miller, 108 Ariz. 441, 445, 501 P.2d 383, 387 (1972). Entry under common law
burglary, consistent with § 13-1501(3), requires “some movement by the defendant
across the external boundaries of the structure, some breaking of the planes created by the
threshold and the four walls.” United States v. Eichman, 756 F. Supp. 143, 148
(S.D.N.Y. 1991), citing 3 Wharton’s Criminal Law §§ 331-32 (C. Torcia 14th ed. 1980).
We find no authority, however, expressly discussing whether that threshold has any
particular depth and thus whether entry into the threshold, without more, constitutes entry
4
into the structure. But “[t]he predominate impetus of common law burglary was ‘to
protect the security of the home, and the person within his home.’” Id., quoting Note,
Statutory Burglary—The Magic of Four Walls and a Roof, 100 U. Pa. L. Rev. 401, 427
(1951). Because a penetration into an outer barrier violates the home’s security, that
strongly suggests such penetration constitutes entry.
¶9 We find limited authority addressing entry under facts similar to those
before us, but the bulk of that authority is consistent with our conclusion that a person
must penetrate whatever forms a structure’s outer boundary—a door, window, or wall,
for example—but need not go further to have entered the structure. In People v. Garcia,
the California Court of Appeal concluded that “insertion of [a crowbar] into the door
jamb itself constituted entry into the residence.” 16 Cal. Rptr. 3d 833, 840 (Ct. App.
2004). The Texas Court of Criminal Appeals determined that a failed attempt to open a
wooden door after removing its screen door constituted entry. Ortega v. State, 626
S.W.2d 746, 747 (Tex. Crim. App. 1981); see also People v. Moore, 37 Cal. Rptr. 2d
104, 106 (Ct. App. 1994) (penetrating area between screen door and door sufficient).
And breaking a door frame was found to constitute entry in Williams v. State, 997 S.W.2d
415, 417 (Tex. App. 1999). See also Commonwealth v. Burke, 467 N.E.2d 846, 848-49
(Mass. 1984) (breaking “outer storm window” entry even if inner window intact); but see
Stamps v. Commonwealth, 602 S.W.2d 172, 173 (Ky. 1980) (breaking exterior of cinder
block wall not entry; inside of blocks “not a protected space”). Thus, based on the
foregoing, we conclude that the insertion of the pry bar into the door jamb constitutes
entry as contemplated by § 13-1501(3).
5
¶10 Kindred next argues there was “a complete absence of evidence regarding
the defendants’ intent once they would have gained entry” because the apartment was
visibly vacant—and thus contained nothing to steal except “large appliances which would
have required tools and equipment” the defendants did not have. He additionally notes
there was no evidence the defendants intended to commit some other felony upon entry,
“such as the use of drugs.”
¶11 We find no deficiency in the evidence; the jury readily could conclude that
Kindred and his companion had intended to commit theft upon entering the apartment.
See § 13-1507(A). As Kindred admits, there were items in the apartment that could be
stolen. That the defendants might have been ill-equipped to steal those items does not
require the jury to conclude they did not intend to do so. And the jury could conclude the
defendants were unaware the apartment was vacant—a dining room light was on, there
was no evidence either had looked in the apartment window, and the leasing manager
testified that someone looking through the window would not necessarily be able to “tell
whether there’s furniture or anything else in there.” In any event, as the state correctly
points out, a defendant’s forced entry into a structure permits a jury to infer that
defendant had the requisite specific intent for burglary. See State v. Malloy, 131 Ariz.
125, 130, 639 P.2d 315, 320 (1981).
6
¶12 For the reasons stated, Kindred’s convictions and sentences are affirmed.
/s/ Peter J. Eckerstrom
PETER J. ECKERSTROM, Judge
CONCURRING:
/s/ Virginia C. Kelly
VIRGINIA C. KELLY, Presiding Judge
/s/ Philip G. Espinosa
PHILIP G. ESPINOSA, Judge
7