State v. Hamblin

• Decision Date: 06 February 2008
• Docket Number: No. 2 CA-CR 2007-0166.,2 CA-CR 2007-0166.
• Citation: 176 P.3d 49,217 Ariz. 481
• Parties: The STATE of Arizona, Appellee, v. Lance Christian HAMBLIN, Appellant.
• Court: Arizona Court of Appeals

176 P.3d 49

217 Ariz. 481

The STATE of Arizona, Appellee, v.Lance Christian HAMBLIN, Appellant.

No. 2 CA-CR 2007-0166.

Court of Appeals of Arizona, Division 2, Department A.

February 6, 2008.

Terry Goddard, Arizona.Attorney General By Randall M. Howe and Julie A. Done, Phoenix, Attorneys for Appellee.

Law Offices of Perry Hicks, P.C.By Adam Ambrose, Sierra Vista, Attorneys for Appellant.

OPINION

BRAMMER, Judge.

¶ 1 A jury found appellantLance Hamblin guilty of third-degree burglary and theft.In this opinion, we address Hamblin's argument that his actions did not constitute burglary under A.R.S. § 13-1506.In a separate, simultaneously filed memorandum decision, we address other issues that do not meet the criteria for publication and conclude they, like the claim we resolve in this opinion, are without merit.SeeAriz. R. Sup.Ct. 111(h);Ariz. R.Crim. P. 31.26.

Factual and Procedural Background

¶ 2 On appeal, "[w]e view the facts in the light most favorable to sustaining the verdict[s]."State v. Cropper,205 Ariz. 181, ¶ 2, 68 P.3d 407, 408(2003).At approximately 6:30 p.m. on January 3, 2006, W. saw a truck belonging to his friend, S., parked in a Wal-Mart parking lot.He pulled into the parking lot and parked next to S.'s truck, intending to go into the store and talk to S.As he was walking toward the store, he saw a Ford Bronco pull into the parking lot next to S.'s truck.A man got out of the Bronco and "started urinating right there in the parking lot."W. continued to watch "because something didn't seem right."W. saw the man walk between W.'s vehicle and S.'s truck.He then saw the dome light in S.'s truck go on and off.The man then got back in the Bronco and drove away, "squealing tires as he took off" and running a stop sign.W wrote down the Bronco's license plate number.

¶ 3 After W. found S. in the store, he told S. what he had seen and gave him the license plate number.S. went to his truck and looked inside but initially did not notice anything missing.Later, as S. got in his truck to drive home, he noticed his radar detector was missing.He called the police and reported the incident, giving them the license plate number W. had recorded.

¶ 4 Police determined the license plate number matched that of a Ford Bronco registered to Hamblin.An officer went to Hamblin's address, but neither Hamblin nor the Bronco was there.The officer returned later that night and saw the Bronco at the house.He then spoke with Hamblin, who told the officer that he had been at a meeting and had not been in the Wal-Mart parking lot earlier that evening.

¶ 5 Three days later, Thatcher Police Department DetectiveKendall Curtis went to Hamblin's house to speak with Hamblin and arrange an interview.Hamblin then admitted he had taken a radar detector out of a truck at Wal-Mart but claimed "he wanted to meet with the victim and make it right with the victim rather than [have] criminal charges [filed]."Hamblin said he could recover the radar detector, so Curtis "gave him until Monday morning to bring [it] to our office."Hamblin did not do so.Curtis then tried to reach him several times the following week without success.

¶ 6 Hamblin was charged with third-degree burglary and theft.His first trial ended in a mistrial when the jury was unable to reach a verdict.At a second trial, the jury found Hamblin guilty of both counts.¹The trial court suspended imposition of sentence and placed Hamblin on concurrent terms of supervised probation, the longer for four years.This appeal followed.

Discussion

¶ 7 Hamblin asserts that, even if all the evidence presented at trial is taken as true, "this record still could not support a conviction for [third-degree] burglary under current law."²Section 13-1506 describes two ways to commit third-degree burglary.Under § 13-1506(A)(1), a person commits burglary by "[e]ntering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or residential yard with the intent to commit any theft or any felony therein."A person commits burglary under § 13-1506(A)(2) by "[m]aking entry into any part of a motor vehicle by means of a manipulation key or master key, with the intent to commit any theft or felony in the motor vehicle,"The legislature added subsection (A)(2) to § 13-1506 in 2003.See2003 Ariz. Sess. Laws, ch. 39, § 3.

¶ 8 Hamblin first argues that the charging documents in his case are unclear and asserts that § 18-1506(A)(2)"appears to [have been] the basis for prosecution" here.He reasons that we must vacate his conviction because he did not use a manipulation key or master key to gain entry to S.'s unlocked truck and thus did not violate § 13-1506(A)(2).But Hamblin misstates the record.The charging document alleged he committed burglary "by entering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or residential yard with the intent to commit any theft or any felony therein."Thus, he Was clearly charged under § 13-1506(A)(1), not (A)(2), and, as we explain in our memorandum decision, the evidence produced at trial amply supported his conviction under that subsection.

¶ 9 Hamblin next argues that, although the definition of "structure" under § 13-1501(12) includes a "vehicle,"the legislature did not intend to include a "motor vehicle" because § 13-1506(A)(2), not (A)(1), separately defines burglary of a motor vehicle.He urges us to adopt his interpretation as opposed to one that includes motor vehicles within the definition of a structure, claiming the latter would render subsection (A)(2) a "nullity" because any act encompassed by (A)(2) would also be encompassed by (A)(1).SeeState v. Box,205 Ariz. 492, 11( 10, 73 P.3d 623, 627(App.2003)(legislature is "presumed not to enact meaningless, redundant, or futile legislation").

¶ 10We agree with Hamblin that it is difficult to envision a scenario that would be punishable under § 13-1506(A)(2) but not (A)(1).Subsection (A)(2) creates a crime narrower in scope than subsection (A)(1) because it requires the use of a manipulation or master key to gain entry to a motor vehicle.Subsection (A)(1), however, does not specify any particular method of entry that must be proven to support a conviction.SeeState v. Van Dyke,127 Ariz. 335, 336, 621 P.2d 22, 23(1980)("Arizona cases clearly establish that even where the physical entry is objectively legitimate, entry will be illegal if the defendant's subjective intent is to commit a felony.");State v. Jackson,121 Ariz. 277, 279, 589 P.2d 1309, 1311(1979) ("[The[ manner of entry is not material to . . . burglary.").And, as we have noted, the definition of a structure encompasses vehicles.A.R.S. § 13-1501(12).Thus, an individual who has violated § 13-1506(A)(2) has also violated subsection(A)(1).Further, any act in violation of subsection (A)(2) would have violated § 13-1506 prior to the 2003amendment.

¶ 11We generally "presume the legislature is aware of existing statutes when it enacts new statutes, and we presume the legislature intends to change the law when it substantively changes the language of a statute."Washburn v. Pima County, 206 Ariz. 571, ¶ 11, 81 P.3d 1030, 1035(App.2003).That does not mean, however, that we must adopt an interpretation that is patently unreasonable.SeeState v. Dixon,216 Ariz. 18, ¶ 7, 162 P.3d 657, 659(App.2007)(primary goal of statutory interpretation is to determine legislature's intent).Hamblin's interpretation of § 13-1506 would exclude from the definition of third-degree burglary the entry of a motor vehicle with intent to commit a felony therein unless the entry was accomplished by means of a manipulation or master key.That unduly restrictive interpretation is unsupported by either legislative history or public policy.

¶ 12We find nothing in the legislative history evincing an intent by the legislature to narrow the scope of activity prohibited by the burglary statutes.When the legislature added subsection (A)(2) to § 13-1506 in 2003, it also added definitions of "manipulation key" and "master key" to § 13-1501 and expanded the crime of possessing burglary tools, defined in A.R.S. § 13-1505, to include "[b]uying, selling, transferring, possessing, or using a motor vehicle manipulation key or master key."See2003 Ariz. Sess. Laws, ch. 39, §§ 1-3.The senate's fact sheet for that bill, S.B. 1057, states the bill's purpose is to add "`manipulation keys' to the list of burglary tools that are illegal to buy, sell, transfer or possess."Senate Fact Sheet,S.B. 1057, 46th Leg., 1st Reg. Sess. (Ariz.2003).In its background section, the fact sheet states such keys "are a rapidly increasing mode of auto theft."Id.Nothing in the legislative history suggests S.B. 1057 was intended to narrow the definition of a "structure" in § 13-1501(12) or to eliminate the crime of burglary of a motor vehicle under § 13-1506 except when entry is accomplished by use of a manipulation or master key.Nor can we discern any public policy reason for doing so.

¶ 13 Under Hamblin's theory, an individual who entered a motor vehicle by using another burglary tool, or no tool at all, could not be guilty of violating § 13-1506, while someone who used a manipulation or master key to gain entry would.And, by that reasoning, a person entering a motor vehicle without a manipulation or master key would be less culpable than a person who entered some other nonresidential structure—including, presumably, a nonmotorized vehicle.Had the legislature intended to curtail the scope of § 13-1506 in this fashion, it surely would have done so explicitly by amending the definition of "structure" in § 13-1501(12) to remove the term "vehicle."

¶ 14 There are reasonable explanations for the legislature's decision to amend § 13-1506.The legislature may properly amend statutes to clarify existing law and may well have intended to do that here.SeeRowe Int'l, Inc. v. Ariz....