State v. Bithell, 1 CA-CR 15-0265

Background

In April 2012 Phoenix police observed Tom Bithell handling tires at a Discount Tire "dead bin" (storage shed); officers saw him put tires into and back out of his truck. Four tires remained in his truck when arrested.
Bithell gave inconsistent statements: initially said he had no permission; later claimed a man named "Bob Shea" had permission and that he was helping Bob and would return bad tires in exchange for money/food.
Discount Tire’s manager testified neither Bithell nor "Bob Shea" had permission, the shed was secured and persons with access were limited.
A jury convicted Bithell of third-degree burglary (intent to commit theft in a nonresidential structure). Trial court found two prior felonies and sentenced Bithell to a 2.25-year minimum term.
Bithell filed a delayed appeal raising (1) insufficiency of evidence as to intent, (2) failure to instruct sua sponte on mistake-of-fact, and (3) failure to give a criminal-trespass lesser-included instruction. The Court of Appeals affirmed.

Issues

Issue	Plaintiff's Argument (State)	Defendant's Argument (Bithell)	Held
Sufficiency of evidence of intent for 3rd-degree burglary	Evidence (officer observation, inconsistent statements, manager testimony, absence of Bob) supports intent to steal	Evidence ambiguous; at best shows mistake or lack of intent to steal	Affirmed: circumstantial evidence and inconsistent statements permitted jury to find intent beyond a reasonable doubt
Failure to give mistake-of-fact instruction sua sponte	No reversible error; defendant argued mistake at trial so jury heard defense	Court should have instructed jury on mistake-of-fact because Bithell claimed derivative permission through Bob Shea and that negated intent	No fundamental error: omission speculative and defendant was able to present the defense to the jury
Failure to give criminal trespass lesser-included instruction sua sponte	Trial court had no duty to instruct on lesser unless requested; trespass is not a lesser-included of burglary under Arizona precedent	Court should have instructed on trespass as lesser offense	No error: trespass is not necessarily a lesser-included offense and courts generally need a request to charge lesser offenses
Fundamental-error standard for unrequested instructions	When not requested, omission reviewed for fundamental error requiring prejudice	Defendant argues prejudice from missing instructions	No fundamental error shown; defendant failed to prove prejudice

Key Cases Cited

State v. Harm, 236 Ariz. 402 (App. 2015) (standard for viewing facts on appeal)
State v. Valencia, 186 Ariz. 493 (App. 1996) (appellate review of evidence in defendant's disfavor)
State v. Routhier, 137 Ariz. 90 (1983) (criminal intent may be proved circumstantially)
State v. Ramos, 133 Ariz. 4 (1982) (intent to commit theft can be shown by circumstantial evidence)
State v. Fulminante, 193 Ariz. 485 (1999) (false or inconsistent statements as consciousness of guilt)
In re Winship, 397 U.S. 358 (1970) (beyond a reasonable doubt standard)
State v. Clemons, 110 Ariz. 555 (1974) (credibility and weight of testimony for jury)
State v. Gill, 235 Ariz. 418 (App. 2014) (definition of nonresidential structure applied)
State v. Malloy, 131 Ariz. 125 (1981) (criminal trespass not necessarily a lesser-included of burglary)
State v. Kozan, 146 Ariz. 427 (App. 1985) (confirming Malloy rule)
State v. Newnom, 208 Ariz. 507 (App. 2004) (Court of Appeals bound by Supreme Court precedent on lesser-included issue)
State v. Henderson, 210 Ariz. 561 (2005) (fundamental-error review standard)
State v. Dickinson, 233 Ariz. 527 (App. 2013) (defendant must prove prejudice under fundamental-error review)
State v. Engram, 171 Ariz. 363 (App. 1991) (no duty to sua sponte instruct on lesser-included offenses)
State v. Gipson, 229 Ariz. 484 (2012) (trial judge generally should withhold lesser-included instructions absent request)
State v. Munninger, 213 Ariz. 393 (App. 2006) (prejudice requirement under fundamental-error review)
State v. James, 231 Ariz. 490 (App. 2013) (requirements for relief on fundamental-error review)