State v. Denson
Decision Date | 01 November 2016 |
Docket Number | No. 1 CA–CR 15–0592,1 CA–CR 15–0592 |
Citation | 382 P.3d 1221,241 Ariz. 6,751 Ariz. Adv. Rep. 4 |
Parties | State of Arizona, Appellee, v. Thomas Edward Denson, Appellant. |
Court | Arizona Court of Appeals |
Arizona Attorney General's Office, Phoenix, By Terry M. Crist, Counsel for Appellee
Maricopa County Public Defender's Office, Phoenix, By Nicholaus Podsiadlik, Counsel for Appellant
OPINION
¶ 1We hold that the statute criminalizing possession of burglary tools, Arizona Revised Statute(“A.R.S.”)section 13–1505(A)(1)(2016), is not unconstitutionally vague.Additionally, we hold there was sufficient evidence to support Thomas Denson's convictions for second degree burglary and possession of burglary tools.We therefore affirm.
¶ 2 On March 24, 2014, at around 2:40 a.m., victim J.B. awoke in his bedroom with a light shining in his eyes from a flashlight shining down the hallway.He got out of bed and ran down the hallway, but the intruder was gone.J.B. checked the house, and observed that the garage door leading into the backyard was open.He immediately called the police, and an officer was sent to patrol his neighborhood.
¶ 3 At around 3:50 a.m., less than a mile from J.B.'s residence, a patrol officer saw two men walking.When the officer approached the men in his vehicle, they ran into a yard and laid down in the grass.The officer flashed his spotlight on them, and they fled.One of the men stopped running, put a laptop computer on the ground, and then laid down again.The other man, Denson, kept running, but the officer caught him.As the officer was taking Denson into custody, the other man fled.
¶ 4 The officer searched Denson, and found the power cord for the laptop, two iPods, a high school ring, a pair of gloves, and a small flashlight.Denson told the officer that he bought the two iPods on Indian School Road for $20, but later said it was actually on Camelback Road.Denson also told the officer he found the ring on the ground.
¶ 5 Police later contacted victim J.B., who identified the two iPods as his property.The ring had a surname on it, leading officers to victim J.P., who lived half a mile from the location of Denson's arrest.J.P. identified the ring as his son's high school ring, and he was able to show that the laptop belonged to him by logging on to the computer using a password.
¶ 6 Denson was indicted on two counts of theft, two counts of second degree (residential) burglary, and one count of possession of burglary tools based on his possession of the gloves and the flashlight.The jury found Denson guilty on all counts.Denson timely appealed.
¶ 7 Denson argues his conviction for possession of burglary tools should be reversed because the statute defining the offense, A.R.S. § 13–1505(A)(1), is unconstitutionally vague on its face.Specifically, Denson argues the statute's definition of burglary tools as “any ... article ... commonly used for committing any form of burglary” is so vague and ambiguous it is “impossible” to know what items are proscribed as burglary tools.Although Denson did not raise a vagueness challenge in the superior court, “we may consider a vagueness challenge for the first time on appeal.”SeeState v. Anderson , 199 Ariz. 187, 191, ¶ 14, 16 P.3d 214, 218(App.2000).
¶ 8We review the constitutionality of a statute de novo.State v. Burke , 238 Ariz. 322, 325, ¶ 4, 360 P.3d 118, 121(App.2015)(citation omitted).Here, because Denson is challenging the facial validity of A.R.S. § 13–1505(A), he“must establish that no set of circumstances exists under which the [statute] would be valid.”United States v. Salerno , 481 U.S. 739, 745, 107 S.Ct. 2095, 95 L.Ed.2d 697(1987);seeHernandez v. Lynch , 216 Ariz. 469, 472, ¶ 8, 167 P.3d 1264, 1267(App.2007).Thus, the possibility that the burglary tools statute“might operate unconstitutionally under some conceivable set of circumstances is insufficient to render it wholly invalid.”Salerno , 481 U.S. at 745, 107 S.Ct. 2095;Burke , 238 Ariz. at 325, ¶ 6, 360 P.3d at 121.
¶ 9“The [D]ue [P]rocess [C]lause of the [F]ourteenth [A]mendment does not permit the state to deprive a person of liberty for violating a statute whose terms are ‘so vague, indefinite and uncertain’ that their meaning cannot be reasonably ascertained.”State v. Western , 168 Ariz. 169, 171, 812 P.2d 987, 989(1991)(citation omitted).A statute is unconstitutionally vague if it fails to provide fair notice to a person of reasonable intelligence what conduct is prohibited and it does not state clear enforcement standards for the police and prosecutors.State v. Tocco , 156 Ariz. 116, 118, 750 P.2d 874, 876(1988);seeUnited States v. Williams , 553 U.S. 285, 304, 128 S.Ct. 1830, 170 L.Ed.2d 650(2008)( ).Burke , 238 Ariz. at 326, ¶ 6, 360 P.3d at 122(internal citations omitted);seeState v. Womack , 174 Ariz. 108, 112, 847 P.2d 609, 703(App.1992)( )(citingBrockmueller v. State , 86 Ariz. 82, 84, 340 P.2d 992(1959) ).
¶ 11 When interpreting a statute, “we look to the plain language of the statute as the best indicator” of the legislature's intent.State v. Pledger,236 Ariz. 469, 471, ¶ 8, 341 P.3d 511, 513(App.2015).If the language of the statute is clear and unambiguous, we give effect to that language and do not use other methods of statutory construction.State v. Riggs,189 Ariz. 327, 333, 942 P.2d 1159, 1165(1997).Additionally, “[i]n construing a legislative enactment, we apply a practical and commonsensical construction.”State v. Alawy,198 Ariz. 363, 365, ¶ 8, 9 P.3d 1102, 1104(App.2000).
¶ 12 As relevant here, the statute only applies to a person who possesses: (1) a tool, article or instrument that is commonly used to burglarize a residence, and (2) intends SeeA.R.S. § 13–1507(A)( ).Thus, the plain language of the statute only applies to items a person actually intends to use as burglary tools.This effectively eliminates any possible vagueness in the statute, because innocent possession of an item that could be used as a burglary tool is not a crime.
¶ 13 A person of ordinary intelligence would be able to understand what is prohibited under the burglary tools statute.It takes no special insight or understanding to recognize that possessing items such as gloves or a flashlight for the purpose of burglarizing a home is proscribed by A.R.S. § 13–1507(A).Cf.State v. Jackson , 112 Ariz. 149, 152, 539 P.2d 906, 909(1975)( );State v. O'Laughlin , 239 Ariz. 398, 404, ¶ 16, 372 P.3d 342, 348(App.2016)( );State v. Adkins , 678 S.W.2d 855, 860(Mo. Ct. App.1984)( ).
¶ 14 Here, Denson has failed to show that “no set of circumstances exists under which the [statute] would be valid.”Salerno , 481 U.S. at 745, 107 S.Ct. 2095;seeHernandez , 216 Ariz. at 472, ¶ 8, 167 P.3d at 1267.Indeed, the overwhelming majority of jurisdictions defining burglary tools, like Arizona, as tools and instruments “commonly used” in committing a burglary, have held this definition is not unconstitutionally vague.SeePeople v. Chastain , 733 P.2d 1206, 1209(Colo.1987)( );Hogan v. Atkins , 224 Ga. 358, 162 S.E.2d 395, 395(1968)( );State v. Hart , 200 Kan. 153, 434 P.2d 999, 1004–05(1967)( );State v. Lawson , 59 N.M. 482, 286 P.2d 1076, 1077(1955)( );State v. McDonald , 74 Wash.2d 474, 445 P.2d 345, 348 n.1(1968)( );but seeState v. Graves , 299 Or. 189, 700 P.2d 244, 248–49(1985)( ).
¶ 15 Accordingly, we conclude A.R.S. § 13–1505(A)(1) is not unconstitutionally vague.2
¶ 16 Denson also argues that there is insufficient...
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