State of Arizona v. Anthony Lewis, 236 Ariz. 336

Background

In Sept. 2008, Anthony Lewis broke into A.H.’s home; the next day he returned, poured an accelerant on her and set her on fire; A.H. later died of burn complications. Lewis was indicted for first-degree murder (felony-murder and premeditation theories), aggravated assaults, and burglaries.
A jury convicted Lewis of first-degree murder (unanimously on felony-murder theory), two counts of aggravated assault, and second-degree burglary (acquitted on first-degree burglary for Sept. 22 incident).
Pretrial, Lewis was found initially incompetent and ordered to competency restoration; after two restoration attempts, the court ultimately found him competent based on evidence of malingering.
Lewis appealed, arguing (1) the court abused its discretion in finding him competent absent proof of successful restoration, and (2) the jury was improperly instructed that third-degree burglary (as a predicate for felony-murder) could be based on entry into a residential yard without proof the yard was fenced.
The Court of Appeals affirmed convictions and most sentences, modifying one concurrent/aggravated assault sentence in a separate memorandum decision.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Lewis)	Held
Competency determination after prior finding of incompetence	Competency determination may rest on evidence that defendant was malingering; subsequent expert opinion and observations can rebut presumption of continued incompetence	After an initial incompetence finding, court cannot find competence without evidence of positive change or proof restoration was successful; prior incompetence creates strong presumption	Court held presumption of continued incompetence is rebuttable by any contradicting evidence (including proof of malingering); trial court did not abuse discretion in finding Lewis competent based on new expert opinion and restoration-period evidence
Standard of proof to overcome presumption of incompetence	State need not meet a heightened clear-and-convincing standard; ordinary rebuttal by contradicting evidence suffices	Court should require clear-and-convincing evidence to rebut presumption of continued incompetence	Court rejected raising burden to clear-and-convincing; presumption vanishes upon introduction of contradicting evidence; assumed state bears burden but ordinary rebuttal is enough
Jury instruction: third-degree burglary predicate for felony-murder — whether "fenced" modifies both commercial and residential yard in A.R.S. §13-1506	The jury could be instructed that third-degree burglary included entry into a residential yard as a predicate for felony murder; even if instruction erred, evidence shows the yard was fenced so error harmless	Instruction was erroneous because statute requires a "fenced residential yard"; court erred in not so instructing and conviction must be vacated if based on that predicate	Court held statute ambiguous and applied grammar and context: "fenced" modifies both commercial and residential yard; trial court erred in omitting that element but error was harmless because evidence showed A.H.’s yard was enclosed by fences/vegetation
Requested criminal trespass instruction as alternative/theory of the case	—	Lewis sought criminal trespass instruction to give jury an alternative verdict/theory	Court properly refused: criminal trespass is not a lesser-included offense of burglary and a defendant is not entitled to an uncharged-offense instruction just as a competing theory; refusal not reversible error

Key Cases Cited

State v. Glassel, 211 Ariz. 33 (court reviews competency determinations for abuse of discretion)
State v. Grell, 212 Ariz. 516 (discovery of malingering can permit trial after prior incompetence finding)
State v. Dann, 205 Ariz. 557 (erroneous jury instructions are subject to harmless-error analysis)
Chapman v. California, 386 U.S. 18 (harmless error standard: conviction must be overturned unless error did not contribute to verdict beyond a reasonable doubt)
Sheehan v. Pima County, 135 Ariz. 235 (presumption vanishes upon introduction of contradicting evidence)
State v. Bolton, 182 Ariz. 290 (must have evidence reasonably supporting requested instruction/theory)
State v. Gonzalez, 221 Ariz. 82 (defendant not entitled to instruction on uncharged offense that is not a lesser-included offense)
State v. Moody, 208 Ariz. 424 (instruction that misstated law is error)