State v. Denson

Decision Date01 November 2016
Docket NumberNo. 1 CA–CR 15–0592,1 CA–CR 15–0592
Citation382 P.3d 1221,241 Ariz. 6,751 Ariz. Adv. Rep. 4
Parties State of Arizona, Appellee, v. Thomas Edward Denson, Appellant.
CourtArizona 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

Presiding Judge Andrew W. Goulddelivered the opinion of the Court, in which Judge Peter B. Swann and Judge Patricia A. Orozco joined.

OPINION

GOULD, Judge:

¶ 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.

FACTS AND PROCEDURAL BACKGROUND1

¶ 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.

DISCUSSION
I.Vagueness

¶ 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)(a criminal statute is void for vagueness if it fails to “provide a person of ordinary intelligence fair notice of what is prohibited, or is so standardless that it authorizes or encourages seriously discriminatory enforcement”).“Due process does not require, however, that a statute be drafted with absolute precision.‘It requires only that the language of a statute convey a definite warning of the proscribed conduct.’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)(criminal statutes need not describe the prescribed criminal conduct to a degree of “mathematical certainty”)(citingBrockmueller v. State , 86 Ariz. 82, 84, 340 P.2d 992(1959) ).

¶ 10 Under A.R.S. § 13–1505(A)(1),

[a] person commits possession of burglary tools by ... [p]ossessing any explosive, tool, instrument or other article adapted or commonly used for committing any form of burglary as defined in sections 13–1506,13–1507and13–1508 and intending to use or permit the use of such an item in the commission of a burglary.

¶ 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 “to use...[it] in the commission of a burglary.”SeeA.R.S. § 13–1507(A)(statute defining residential burglary).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)(holding officers had probable cause to arrest for burglary in part because victim reported seeing a flashlight being used in his home, and officers found a flashlight and pair of gloves in defendant's car);State v. O'Laughlin , 239 Ariz. 398, 404, ¶ 16, 372 P.3d 342, 348(App.2016)(finding sufficient evidence for burglary tools conviction in part because defendant possessed gloves and a flashlight);State v. Adkins , 678 S.W.2d 855, 860(Mo. Ct. App.1984)(finding flashlight and gloves are burglary tools because [i]t requires no imagination to hold that [they] can facilitate the forcible entry into a building.”).

¶ 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)(holding burglary tools defined as any tool “adapted, designed, or commonly used” to commit a burglary not void for vagueness);Hogan v. Atkins , 224 Ga. 358, 162 S.E.2d 395, 395(1968)(holding burglary tools defined in part as “things adapted, designed, or commonly used” to commit a burglary conveys sufficient definite warning as to the conduct forbidden);State v. Hart , 200 Kan. 153, 434 P.2d 999, 1004–05(1967)(holding burglary tools defined in part as “tools or devices suitable for and commonly used” to commit a burglary is not vague or ambiguous);State v. Lawson , 59 N.M. 482, 286 P.2d 1076, 1077(1955)(holding burglary tools defined in part as “adapted, designed or commonly used” to commit a burglary is not void for indefiniteness);State v. McDonald , 74 Wash.2d 474, 445 P.2d 345, 348 n.1(1968)(holding burglary tools defined in part as “adapted, designed, or commonly used” to commit a burglary is not unconstitutionally vague);but seeState v. Graves , 299 Or. 189, 700 P.2d 244, 248–49(1985)(holding that phrase “commonly used” in defining burglary tools was unconstitutionally vague).

¶ 15 Accordingly, we conclude A.R.S. § 13–1505(A)(1) is not unconstitutionally vague.2

II.Sufficiency of the Evidence

¶ 16 Denson also argues that there is insufficient...

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23 cases
  • State v. Morgan
    • United States
    • Arizona Court of Appeals
    • 31 Enero 2020
    ...accordingly and remand for resentencing on that count. ¶7 We review de novo whether sufficient evidence supports a conviction. State v. Denson , 241 Ariz. 6, ¶ 17, 382 P.3d 1221 (App. 2016). We will reverse a conviction only if no substantial evidence supports it. Id. "Substantial evidence ......
  • T.R.C. v. State, Case No. 2D18-4295
    • United States
    • Florida District Court of Appeals
    • 19 Febrero 2020
    ...to prevent the owner from unlocking his apartment door while the larceny was being committed").4 See, e.g., State v. Denson, 241 Ariz. 6, 382 P.3d 1221, 1224 (Ariz. Ct. App. 2016) ("A person of ordinary intelligence would be able to understand what is prohibited under the burglary tools sta......
  • State v. Severin
    • United States
    • Arizona Court of Appeals
    • 24 Febrero 2023
    ...insufficient evidence to support his convictions below. We review de novo whether evidence is sufficient to support a conviction. State v. Denson, 241 Ariz. 6, ¶ 17 (App. We view reasonable inferences drawn from the evidence in the light most favorable to upholding the conviction. State v. ......
  • State v. Helms
    • United States
    • Arizona Court of Appeals
    • 4 Marzo 2021
    ...v. West, 226 Ariz. 559, ¶ 15 (2011). We will only reverse a jury's verdict if "no substantial evidence supports the conviction." State v. Denson, 241 Ariz. 6, ¶ 17 (App. 2016) (quoting State v. Pena, 209 Ariz. 503, ¶ 7 (App. 2005)). Substantial evidence is "such proof that 'reasonable perso......
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