State of Arizona v. Joann Bon
338 P.3d 989
Ariz. Ct. App.
2014
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The STATE of Arizona, Appellee, v. Joann BON, Appellant.

No. 2 CA-CR 2014-0054.

Court of Appeals of Arizona, Division 2.

Nov. 28, 2014.

249 Ariz. 249 | 338 P.3d 989

Ariz. 268, n. 4, 141 P.3d at 753 n. 4.5 Solis has not argued the information contained in the pen pack was incorrect or that it failed to show he had two historical prior felony convictions. We thus conclude the trial court did not commit fundamental error by finding Solis had two historical prior felony convictions for sentence enhancement purposes.

Double Jeopardy

¶23 Solis argues the trial court should have vacated his convictions for driving with a BAC of .08 or more and extreme DUI with a BAC of .15 or more because they are lesser-included offenses of extreme DUI with a BAC of .20 or more. He concedes he did not object to the convictions below; accordingly, we review only for fundamental, prejudicial error. . “[A] violation of double jeopardy is fundamental error.” The state concedes the claim of error and “agrees that the correct remedy is to vacate the two lesser included convictions.” We nevertheless examine this issue because we are not bound by the state‘s concession, , and we will not ignore fundamental error when we find it, .

¶24 “The Double Jeopardy Clause ... bars multiple punishments for the same offense.” , quoting . A lesser-included offense is the same offense as the greater if the lesser “is, by its very nature, always a constituent part of the greater offense, or whether the charging document describes the lesser offense even though it does not always make up a constituent part of the greater offense.” ¶ 10, quoting (emphasis omitted). We have stated, “[W]hen the only difference between two DUI charges is the BAC threshold, a court cannot allow a conviction on the lesser charge to stand.” . Here, the only difference between the DUI charges was the BAC threshold. See A.R.S. § 28-1381(A)(2) (defining DUI); A.R.S. § 28-1382(A) (defining extreme DUI). Thus, we conclude that the charges of driving with a BAC of .08 or more and extreme DUI with a BAC of .15 are lesser-included offenses of extreme DUI with a BAC of .20 or more, and double jeopardy barred Solis‘s convictions for those charges.

Disposition

¶25 For the foregoing reasons, we vacate Solis‘s convictions and sentences for driving with a BAC of .08 or more and for extreme DUI with a BAC of .15 or more. We affirm his convictions and sentences in all other respects.

Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz, Section Chief Counsel, Phoenix by Alan L. Amann, Assistant Attorney General, Tucson, Counsel for Appellee.

Lori J. Lefferts, Pima County Public Defender by Lisa M. Hise and Travis K. Ausland, Assistant Public Defenders, Tucson, Counsel for Appellant.

Judge VÁSQUEZ authored the opinion of the Court, in which Presiding Judge KELLY and Judge HOWARD concurred.

OPINION

VÁSQUEZ, Judge.

¶1 After a jury trial, Joann Bon was convicted of third-degree burglary, theft of property having a value of $1,000 or more but less than $2,000, and possession of drug paraphernalia. The trial court sentenced her to concurrent prison terms, the longest of which was three years, followed by a three-year term of probation. In this appeal, we are asked to determine whether the act of removing property from the open bed of a pickup truck constitutes entry of a structure under our burglary statutes. For the reasons that follow, we conclude it does and therefore affirm.

Factual and Procedural Background

¶2 “We view the facts and all reasonable inferences therefrom in the light most favorable to upholding the verdicts.” . In October 2012, two men working for a satellite television company drove to an apartment complex to install a satellite dish. They left their pickup truck in the parking lot and walked to the customer‘s building for an initial inspection of the site. When they returned, the men found Bon standing on the far side of the truck, reaching into its bed. As they approached, the men saw Bon holding a tool belt in her hand. They later discovered she had removed their “tools, hammer drill, impact gun, satellite meter, charger, [and] batteries” from the bed of the truck. The men detained Bon and called 9-1-1. Responding police officers found two crack pipes and a hypodermic needle in Bon‘s possession during a search following her arrest.

¶3 A grand jury indicted Bon for third-degree burglary, theft of property or services with a value of $2,000 or more but less than $3,000, and possession of drug paraphernalia. At the close of evidence at trial, Bon moved for a judgment of acquittal on the burglary charge pursuant to Rule 20(a), Ariz. R. Crim. P., arguing that the truck bed did not meet the statutory definition of a structure and that her actions did not amount to entry of a structure. The trial court denied the motion and later instructed the jury that “a vehicle includes the bed of a pickup truck, and a vehicle is a structure.”

¶4 The jury found Bon guilty on all counts but determined that the tools and equipment had a value of $1,000 or more but less than $2,000. The trial court sentenced her as described above, and this appeal followed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).

Burglary

¶5 Bon argues “the trial court erred in ruling that the unsecured, open-air bed of a pickup truck is a structure” within the meaning of A.R.S. §§ 13-1501(12) and 13-1506. She also suggests that the act of reaching into a truck bed does not constitute an “entry” of a structure as defined by § 13-1501(3). We review the denial of a Rule 20 motion, as well as issues of statutory interpretation, de novo. See ; .

¶6 “Our primary purpose in interpreting a statute is to give effect to the legislature‘s intent.” . “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.” , quoting . And, “[i]f statutory terms are defined, we apply that definition; otherwise, we interpret statutory terms ‘in accordance with their commonly accepted meanings.‘” , quoting . “[T]here is no need to resort to other methods of statutory interpretation to determine the legislature‘s intent” if the statute‘s language is unambiguous. .

¶7 A person commits third-degree burglary by “[e]ntering or remaining unlawfully in or on a nonresidential structure ... with the intent to commit any theft or any felony therein.” § 13-1506(A)(1). Our legislature has provided several definitions to guide our interpretation of § 13-1506. See . “Entry” is “the intrusion of ... any part of a person‘s body inside the external boundaries of a structure.” § 13-1501(3). A “structure” can include “any building, object, vehicle, railroad car or place with sides and a floor that is separately securable from any other structure attached to it and that is used for lodging, business, transportation, recreation or storage.” § 13-1501(12). And, a “vehicle” is “a device in, upon or by which any person or property is ... transported or drawn upon a highway.” A.R.S. § 13-105(41).

¶8 When discussing burglary of a truck in , overruled on other grounds by , this court suggested a truck‘s cabin was included in the statutory definition of “vehicle,” concluding “a truck is plainly a vehicle” and “the legislature must have intended third-degree burglary to include burglary of a truck.” The facts of this case do not lead us to a different result. Under the statute‘s plain language, the bed of the truck—upon which “property is ... transported or drawn,” § 13-105(41)—is a part of the vehicle and is therefore a part of that structure, see § 13-1501(12). And, the act of reaching into a truck bed amounts to an intrusion beyond the external boundaries of that structure. See § 13-1501(3); .

¶9 Bon nevertheless argues burglary must be limited to spaces that are securable, such as the cabin of a truck. We disagree. This court recently parsed the language of § 13-1501(12) in :

[A] “structure” for these purposes must satisfy three requirements: the structure must be (1) “any vending machine or any building, object, vehicle, railroad car or place with sides and a floor” that is (2) “separately securable from any other structure attached to it” and (3) “used for lodging, business, transportation, recreation or storage.”

. We explained that the second element represents “words of limitation on the scope of those options described in the first requirement.” ¶ 8.

¶10 As it relates to a vehicle, the second requirement applies only to other structures that may be attached to the vehicle. In this case, however, the truck bed was not an independent structure, but a part of the vehicle itself. See § 13-1501(12). Consequently, it is immaterial whether the bed was separately securable. And, in any event, Bon‘s argument essentially asks us to apply only the initial portion of this limitation: “separately securable.” But we must read the words of the second requirement as a whole. See (“last antecedent rule” requires qualifying phrase to be “applied to the word or phrase immediately preceding it“). Thus, § 13-1501(12) does not require that all parts of a single structure be “securable.” Rather, the second requirement applies to two “separately securable” structures that are attached. See (resolving “conceptual problems” created by this distinction). In other contexts, this requirement has helped distinguish between residential and commercial structures found within or attached to another structure. (laundry room within hotel); see also (storage room attached to residence).

¶11 Bon also argues a truck bed cannot be burglarized because § 13-1501(12) does not expressly list the “parts of the vehicle as prohibited space.” She relies on a decision by the New Mexico Supreme Court rejecting a lower court‘s application of the plain meaning of “vehicle” in the context of a truck bed burglary.1 . The court reasoned:

By giving the term “vehicle” its plain meaning, the meaning of the statute as a whole [becomes] far from customary. For example, if an ordinary person were told to “enter” a pickup, he or she would find a seat in the passenger compartment, not lay down in the bed of the pickup.

¶ 38. The court also noted that, unlike New Mexico, other jurisdictions explicitly include “‘any part of a vehicle,‘” ¶ 37, quoting Tex. Penal Code Ann. § 30.04 (Vernon 2007), or “any part thereof,” ¶ 37, quoting 720 Ill. Comp. Stat. 5/19-1 (2010), in their burglary statutes. And, the court ex-

plained that, without similar language to clarify the New Mexico legislature‘s intent, the court would not resort to the “‘beguiling simplicity‘” of a plain-language interpretation. ¶ 38, quoting .

¶12 Bon‘s reliance on Muqqddin is unavailing. First, as the state points out, unlike other jurisdictions, our legislature has provided a statutory definition of “entry.” See § 13-1501(3). And, entry is not limited to those spaces a person might occupy. See . Moreover, we disagree that the plain meaning of this definition would lead to absurd results such that we must disregard it. See (plain language applies “unless impossible or absurd consequences would result“). Second, we can glean no legislative intent from the absence of a list of vehicle parts in the definition of structure. See § 13-1501(12). Here, § 13-1501(12) simply states “vehicle” without distinguishing any of its constituent parts. Thus, we are bound to apply the plain meaning of “vehicle” without resorting to other methods of statutory construction. See ; .

¶13 Lastly, Bon suggests her actions did not result in an “entry” of the structure. She notes that the phrase “external boundaries” lacks a definition and argues the rule of lenity requires that we resolve that ambiguity in her favor. The rule of lenity, however, is a construction principle of last resort. See . We only resolve ambiguity in favor of a defendant if the statutory language is unclear and other forms of statutory construction have failed to reveal the legislature‘s intent. See .2

¶14 Moreover, we disagree that the phrase “external boundaries” is ambiguous under the facts of this case. A “boundary” in this context marks the distinct periphery of a structure specified in § 13-1506(A). See Webster‘s Third New Int‘l Dictionary 260 (1971) (defining boundary as “something that indicates or fixes a limit or extent: something that marks a bound (as of a territory or a playing field): a bounding or separating line“). Although the term is most often used in the context of real property, it also applies here. The sides of the truck bed indicate the external boundary of that part of the vehicle. And, reaching into the truck bed amounts to an entry. See § 13-1501(3); .

¶15 In sum, the truck in this case, including its bed, is a structure pursuant to § 13-1501(12). The evidence established that Bon reached inside the truck bed to remove tools and other equipment from the vehicle. See §§ 13-1501(3), 13-1506(A)(1). Therefore, the trial court did not err in denying Bon‘s motion for a judgment of acquittal on the charge of burglary. See .

Disposition

¶16 For the foregoing reasons, we affirm Bon‘s convictions and sentences.

GARYE L. VÁSQUEZ

JUDGE

Notes

1
New Mexico‘s burglary statute states: “Burglary consists of the unauthorized entry of any vehicle ... or other structure, movable or immovable, with the intent to commit any felony or theft therein.” N.M. Stat. § 30-16-3.
2
Bon also cites , to argue that the statutory language is ambiguous. The portion of that case on which she relies interprets § 13-1506(A)(2), which concerns burglary of a vehicle using a manipulation or master key. . We stated that under that subsection, “jurors would not have to decide if the truck or storage area of a motor vehicle fell within the definition of ‘structure,‘” because the subsection expressly includes “‘any part of a motor vehicle.‘” , quoting § 13-1506(A)(2). As Bon acknowledges, however, “the addition of ... § 13-1506(A)(2) neither expands or limits subsection (A)(1).” And, because the present issue was not before the court in Hamblin, the reference to subsection (A)(1) was dictum. See .
5
Indeed, the state offered certified copies of documents from the prior cases, to which Solis did not object, but those documents never were admitted.
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