372 P.3d 342
Ariz. Ct. App.2016Background
- In Feb. 2014 police responded to a reported burglary; officers found a briefcase and a bone‑handled knife taken from the victim’s truck and bicycles nearby. Defendant Bruce O’Laughlin and codefendant Sandy McClure were arrested. McClure had a flashlight and a latex glove; more gloves were found in the truck.
- O’Laughlin was charged with burglary and one count of possession of burglary tools listing: “flashlight, knife, gloves” (no conjunction in the list).
- At trial the court’s verdict form listed the tools as “flashlight, knife, and/or gloves”; O’Laughlin did not clearly object pretrial to that wording.
- Jury convicted O’Laughlin of burglary and possession of burglary tools; he was sentenced to concurrent prison terms totaling nine years.
- On appeal O’Laughlin argued (1) the trial court erred by adding “and/or” to the verdict form rather than reading the indictment’s list conjunctively, (2) alternatively the indictment was duplicitous and risked nonunanimous jury verdicts, and (3) insufficient evidence supported the burglary‑tools conviction.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (O’Laughlin) | Held |
|---|---|---|---|
| Whether the indictment was duplicitous for listing multiple tools in one count | Single statutory offense: possession of any burglary tool; listing multiple tools does not allege multiple offenses | The list without a conjunction should be read as conjunctive ("and") or is duplicitous, risking non‑unanimity | §13‑1505 is a single offense (possession of burglary tools); indictment not duplicitous; no fundamental error |
| Whether the court erred by adding "and/or" on the verdict form | Using “and/or” accurately captures that the indictment could be read conjunctively or disjunctively; avoids forcing conjunctive reading | Court should have read the indictment as conjunctive ("and") and not add "and/or"; addition altered the charge | Court did not abuse discretion in adding "and/or"; although discouraged, it did not create reversible error |
| Whether omission of a conjunction in the indictment requires a particular reading (and vs or) | Omission is ambiguous; trial court permissibly clarified with "and/or" | Omission should be read as "and" under ordinary rhetorical rules; commas imply conjunction | Omission can reasonably be read conjunctively or disjunctively; adding "and/or" was proper to resolve ambiguity |
| Sufficiency of the evidence for burglary‑tools conviction | Enough circumstantial and accomplice‑liability evidence to show possession and intent as to at least one listed tool | Insufficient proof that O’Laughlin possessed or intended to use any specific tool (flashlight, gloves, knife) | Evidence (flashlight used by McClure, gloves found near defendant, briefcase/knife stolen) was sufficient for a rational jury to convict |
Key Cases Cited
- State v. Guarino, 238 Ariz. 437 (discussing standard of view of evidence supporting verdict)
- State v. Larin, 233 Ariz. 202 (standard for reviewing trial court decisions on verdict forms)
- State v. Payne, 233 Ariz. 484 (fundamental error review and unanimity issues where statute encompassed multiple factual scenarios)
- State v. Paredes‑Solano, 223 Ariz. 284 (statutory subsections creating separate offenses; unanimity requirement)
- State v. Delgado, 232 Ariz. 182 (single‑offense statutory interpretation where different means cause same harm)
- State v. Jurden, 237 Ariz. 423 (unit of prosecution analysis based on statutory placement and harm)
- State v. Dixon, 127 Ariz. 554 (single offense analysis: theft as one act under differing mental states)
- State v. Klokic, 219 Ariz. 241 (defining duplicitous indictment and risks of nonunanimous verdicts)
- State v. Dann, 220 Ariz. 351 (permitting alternative findings so long as jury unanimous that at least one alleged predicate was proven)