307 P.3d 1038
Ariz. Ct. App.2013Background
- In June 2012 a leasing agent observed Kindred unscrew a front-porch light bulb of a vacant second-story apartment, fidget with the doorknob, and stand with a companion; agent called 9-1-1.
- When police arrived, Kindred was found dangling by his hands from the front landing after attempting to jump; his companion lay on the landing nearby.
- Officers discovered a pry bar wedged into the apartment’s door jamb roughly a quarter of the way in near the deadbolt; the door remained closed but the frame was ajar and a gap was visible.
- Gloves were found on the companion and another pair near where Kindred had been dangling; a dining room light in the apartment was on and the unit was vacant.
- A jury convicted Kindred of second-degree burglary (A.R.S. § 13-1507(A)) and possession of burglary tools; the trial court imposed concurrent terms, the longest 6.5 years; Kindred appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether insertion of a pry bar into the door jamb (without full penetration past the door) constitutes “entry” under A.R.S. § 13-1501(3) | The State: penetration of the structure’s external boundary (door jamb) is an intrusion sufficient to constitute entry | Kindred: pry bar only compromised exterior of door jamb and did not place any instrument or body part inside the structure’s external boundaries, so no entry occurred | Entry may be established by penetration of the structure’s outer boundary; insertion of the pry bar into the door jamb constituted entry |
| Whether evidence supported specific intent to commit theft or felony inside (element of second-degree burglary) | The State: forced entry and surrounding circumstances permit an inference of intent to steal upon entry | Kindred: apartment was visibly vacant and contained only large appliances requiring tools—no evidence of intent to steal or other felony | Jury could reasonably infer intent to commit theft; forced entry supports the requisite specific intent |
Key Cases Cited
- State v. Greene, 192 Ariz. 431, 967 P.2d 106 (Ariz. 1998) (standard for construing evidence on sufficiency review)
- State v. West, 226 Ariz. 559, 250 P.3d 1188 (Ariz. 2011) (de novo review of sufficiency of the evidence)
- State v. Malloy, 131 Ariz. 125, 639 P.2d 315 (Ariz. 1981) (forced entry permits inference of requisite burglary intent)
- People v. Garcia, 16 Cal. Rptr. 3d 833 (Cal. Ct. App. 2004) (insertion of crowbar into door jamb constitutes entry)
- Ortega v. State, 626 S.W.2d 746 (Tex. Crim. App. 1981) (failed attempt to open wooden door after removing screen door can constitute entry)
- Williams v. State, 997 S.W.2d 415 (Tex. App. 1999) (breaking door frame constitutes entry)
- Commonwealth v. Burke, 467 N.E.2d 846 (Mass. 1984) (breaking outer storm window constitutes entry despite inner window intact)