Appeal in Maricopa County, Juvenile Action No. J-75755, In re

Decision Date03 July 1974
Docket NumberJ--75755,No. 11565--PR,11565--PR
Citation523 P.2d 1304,111 Ariz. 103
CourtArizona Supreme Court

Ross P. Lee, Maricopa County Public Defender, Anne Kappes, Deputy Public Defender, Phoenix, for appellant.

Moise Berger, Maricopa County Atty., C. O. Lamp, Deputy County Atty., Phoenix, for appellee.

LOCKWOOD, Justice:

This petition for review was filed on behalf of the State of Arizona pursuant to Rule 28(a), 17A A.R.S. by the Maricopa County Attorney. We have been asked to review the decision of the Court of Appeals in the Matter of the Appeal in Maricopa County Juvenile Action No. J--75755, 21 Ariz.App. 542, 521 P.2d 641 (1974). In that decision the Court of Appeals reversed an adjudication of delinquency by the juvenile court based on a finding that the juvenile had committed criminal trespass.

On April 9, 1973, a petition was filed in the juvenile court alleging that on or about March 30, 1973, the juvenile had committed burglary on the dwelling house of Lydia Gonzales and stole three dollars from her purse. On July 5, 1973 the hearing was held. The evidence presented at the hearing indicated that two other boys went into the house and took the money. The juvenile refused to accept any of the money. The juvenile took the stand in his own defense and testified concerning what transpired in the following manner:

'A. Well, we was walking along and then Ralph asked us, did we want to go break in this house. And we said: Well, we ain't going to break in; we ain't going to take nothing; we are just going to walk in, you know.

'And Ralph said, 'Well, I will take something,' and he went inside. Cory, he stayed outside. I went inside and then a purse was laying on the thing and then Ralph picked it up and took all the money out, and then he told me to come in and help him check the house over; and I said, 'No, I'm going back out.'

'Then he called me chicken and then I went back out, and then he started checking the house over. He went until he was through.'

The court granted a motion for a directed verdict for the juvenile as to the charge of petty theft. In addition the court found that there was no burglary but found that there was sufficient evidence to support a charge of 'trespass'. Accordingly the court adjudicated the juvenile delinquent. On appeal the adjudication was reversed on the ground that trespass was not a lesser included offense of burglary.

The first issue raised by the petitioner is whether the crime of trespass for which the juvenile was found to have committed is a lesser included offense of burglary with which he was originally charged. The general rule is that the accused may be convicted of an offense different from that which he was charged only if it is an included offense. State v. Parsons,70 Ariz. 399, 222 P.2d 637 (1950); Peterson v. Jacobson, 2 Ariz.App. 593, 411 P.2d 31 (1966). This may occur under two circumstances: (1) the included offense is by its very nature always a constituent part of the major offense charged; or (2) the terms of the charging document describe the lesser offense even though the lesser offense would not always form a constituent part of the major offense charged. State v. Woody, 108 Ariz. 284, 496 P.2d 584 (1972).

The test to determine if an offense is a lesser included offense is whether the first (greater) offense cannot be committed without necessarily committing the second (lesser). State v. Branch, 108 Ariz. 351, 498 P.2d 218 (1972); State v. Woody, supra; State v. Sutton, 104 Ariz. 317, 452 P.2d 110 (1969); State v. Westbrook, 79 Ariz. 116, 285 P.2d 161 (1954).

Criminal trespass is defined by A.R.S § 13--712(9) as:

'Loitering or prowling upon the private property of another, without the consent of or lawful business with the owner or occupant thereof.'

Burglary is defined by A.R.S. § 13--302(A) as:

'* * * entering a building, dwelling house * * * with intent to commit grand or petty theft, or any felony, * * *.'

Under certain circumstances a burglary can be committed where the accused had the permission of the owner of the property to be there. For example where the defendant had general permission to pass through the room of the victim in order to have access to his own room, but entered the victim's room with the intent to steal and did steal the victim's watch, he was guilty of burglary. The elements of breaking and unlawful entry were not essential to the statute. In McCreary v. State, 25 Ariz. 1, 212 P. 336 (1923) the court pointed out the distinction between statutory and common law burglary:

'Much of the reasoning upon which this appeal is based is due to a misunderstanding of the meaning and scope of the statute defining burglary. The statutory burglary is widely different from the common-law crime of the same name, and the reasoning and decisions of the courts cited by appellant have to do with the common-law burglary, which involves a breaking, and have little application to the offense in which breaking is not an element. The statutory offense involves no unlawfulness of entry, except as the entry becomes unlawful by reason of the felonious or larcenous intent of the person entering. If appellant entered the room of the complaining witness under general permission to do so for the purpose of going to and from his own room, but with larcenous intent, the burglary of the statute was committed. The courts of other states have many times applied statutes in which breaking is not an element of burglary to conditions similar to the facts of this case. In the case of People v. Barry, 94 Cal. 481, 29 P. 1026, decided in 1892, a larceny was committed in a grocery store during business hours, by a person who entered under the general invitation to the public to visit the store on lawful errands.' 25 Ariz. at 2, 212 P. at 336.

Thus the fact that the defendant had permission to go in and out of a service station was no defense to statutory burglary of the station if he subsequently entered with intent to steal the cash register. State v. Owen, 94 Ariz. 354, 385 P.2d 227 (1963).

In State v. Miller, 108 Ariz. 441, 501 P.2d 383 (1972), this court held that because the burglary statute does not contain the common law requirement of breaking and entering and only requires a showing that the person entering the building with intent to commit theft or any felony, forcible trespass, A.R.S. § 13--711, is not a lesser included offense of burglary.

On the other hand the elements of trespass are loitering or prowling, on the property of another, and without the owner's permission. Thus it is apparent from the foregoing that the elements of the two offenses are different and that one is not a lesser included offense of the other.

Nevertheless the adjudication of delinquency may still be...

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29 cases
  • Steven G., In re, 13437
    • United States
    • Connecticut Supreme Court
    • March 21, 1989
    ...(applying fundamental fairness analysis to midtrial amendment in juvenile delinquency proceeding); see also In re Appeal in Maricopa County, 111 Ariz. 103, 106, 523 P.2d 1304 (1974) (amendment at close of juvenile delinquency proceeding under rule providing for amendment at any time permiss......
  • State v. Malloy, 5284-PR
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    • Arizona Supreme Court
    • December 18, 1981
    ...whether the more serious offense cannot be committed without necessarily committing the lesser. In re Appeal in Maricopa County Juvenile Action No. J-75755, 111 Ariz. 103, 523 P.2d 1304 (1974). In making this determination, we look to the statutory elements of the two offenses. State v. Laf......
  • In re Jeremiah T.
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    • January 9, 2006
    ...which he had been charged, in the absence of his consent to the change or prior notice. See In re Maricopa County Juvenile Action No. J-75755, 111 Ariz. 103, 106, 523 P.2d 1304, 1307 (1974). Jeremiah was not required to demonstrate prejudice because, when an amendment changes the nature of ......
  • State v. Calvery
    • United States
    • Arizona Court of Appeals
    • November 3, 1977
    ...intent to commit grand or petty theft. Proof of a breaking or unlawful entry is not required. In re Appeal in Maricopa County, Juvenile Action No. J-75755, 111 Ariz. 103, 523 P.2d 1304 (1974). While the requisite intent may not be established by mere entry or theft alone, any additional rel......
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