NOTICE: NOT FOR OFFICIAL PUBLICATION.

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE of ARIZONA, Appellee,

v.

ABDIHAKIM NUMAN HASSAN, Appellant.

No. 1 CA-CR 14-0539

Appeal from the Superior Court in Maricopa County

No. CR2013-102965-001

The Honorable Hugh E. Hegyi, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Spencer D. Heffel

Counsel for Appellant

MEMORANDUM DECISION

Judge John C. Gemmill delivered the decision of the Court, in which 

Presiding Judge Maurice Portley and Judge Michael J. Brown joined.
STATE v. HASSAN

Decision of the Court

2

G E M M I L L, Judge:

¶1 Abdihakim Numan Hassan appeals from his conviction and 

sentence for burglary in the second degree, a class three felony. Hassan’s

counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 

(1967), and State v. Leon, 104 Ariz. 297 (1969), stating that he has searched 

the record and found no arguable question of law and requesting that this 

court examine the record for reversible error. Hassan filed a pro se 

supplemental brief in accordance with State v. Clark, 196 Ariz. 530, 537, ¶ 30

(App. 1999). For the following reasons, we affirm his conviction and 

sentence.

FACTS AND PROCEDURAL HISTORY

¶2 “We view the facts and all reasonable inferences therefrom in 

the light most favorable to sustaining the convictions.” State v. Powers, 200 

Ariz. 123, 124, ¶ 2 (App. 2001). On January 17, 2013, D.E. and her family 

were on vacation at the Legacy Golf Resort (“the Resort”) in Phoenix, 

Arizona. Late that evening, after she and her family had gone to bed, D.E. 

heard a door slam in the suite. Minutes later, a resort security guard 

informed her that someone had broken into the suite. D.E realized that 

someone had gone through her purse and that money was missing from it.

¶3 Security guard K.B. was on duty at the Resort that night when 

he saw someone walking near the back of the Resort property. He 

witnessed a man walking around D.E.’s suite and rummaging through a 

bag. K.B. pursued the man, whom he identified at trial as Hassan, and 

finally caught him one building away from D.E.’s suite. The Resort called 

Phoenix Police, who arrived at the scene and took custody of Hassan. 

Hassan apologized for his actions and told the police that the money he had 

in his pocket belonged to D.E. The State filed a complaint against Hassan, 

and on February 22, he was indicted by a Maricopa County grand jury on 

one count of second-degree burglary.

¶4 On March 4, Hassan pled not guilty to the burglary charge. 

Prior to trial, Hassan was afforded several opportunities to enter into a plea 

agreement with the State. On January 9, 2014, Hassan was present at a plea 

hearing and Donald advisement, at which the State presented its final plea 

offer of a mitigated, 3.3 year term in the Department of Corrections, 

followed by supervised probation. Hassan rejected the offer and chose to 

proceed with trial.
STATE v. HASSAN

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¶5 At trial, the jury found Hassan guilty of second-degree 

burglary. After a trial on aggravating factors, the jury also found the State 

had proven two aggravators: 1) Hassan committed the crime for the 

purpose of pecuniary gain; and 2) Hassan was on release under community 

supervision at the time of the crime. At a sentencing hearing on July 18, 

2014, the court sentenced Hassan to the presumptive term of 6.5 years’

incarceration, with credit for 401 days served.

¶6 Hassan appeals his conviction and sentence. This court has 

jurisdiction under Article 6, Section 9, of the Arizona Constitution and 

Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031 and 

13-4033.

DISCUSSION

¶7 In his supplemental brief, Hassan makes four arguments that 

his conviction should be overturned. We address each in turn. 

I. Sufficiency of the Evidence

¶8 First, Hassan argues that there was insufficient evidence 

presented at trial to support a burglary conviction. He asserts that the jury 

was never presented with evidence that the hotel suite was a “residential 

area,” as defined by the burglary statute, and that no evidence shows that 

anything of value was stolen from the suite. We review the sufficiency of 

the evidence to determine whether there is substantial evidence to support 

the jury’s verdict. State v. Payne, 233 Ariz. 484, 507, ¶ 76 (2013). Reversible 

error based on insufficient evidence “occurs only when there is a complete 

absence of probative facts to support the conviction.” State v. Soto-Fong, 187 

Ariz. 186, 200 (1996) (quoting State v. Scott, 113 Ariz. 423, 424–25 (1976)). 

¶9 At trial, D.E. testified that her family was at the Resort for 

lodging during a family vacation. Arizona’s criminal code defines a 

“[r]esidential structure” as “any structure . . . permanent or temporary, that 

is adapted for both human residence and lodging whether occupied or not.” 

A.R.S. § 13-1501(11). Sufficient evidence existed to support the jury’s 

determination that the suite was a residential structure, and we therefore 

reject Hassan’s argument. 

¶10 Hassan’s claim that there was insufficient evidence to prove 

that anything of value was taken from the suite is similarly unpersuasive. 

The charge of second-degree burglary does not require proof that a theft

was actually committed while the perpetrator was unlawfully in or on a 
STATE v. HASSAN

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residential structure. See A.R.S. § 13-1507(A). Rather, it requires only that 

the perpetrator have the “intent to commit” a theft or felony therein. Id. 

Testimony at trial indicated that, at a very late hour of the night, Hassan 

entered the suite uninvited. Once inside, he began rummaging through a 

bag located in the suite. Further, the victim and the security officers 

testified that Hassan did in fact take some amount of money, which 

belonged to D.E., from the suite. Even if it is unclear how much money was 

taken, if any at all, there is sufficient evidence to conclude that Hassan 

entered the suite with the intent to commit a theft once inside. We therefore 

find that sufficient evidence existed to support the jury’s verdict. 

II. Courtroom Identification of Defendant

¶11 Hassan also argues that the prosecution made an in-court 

identification of Hassan as the defendant in a way that violated his due 

process rights. Because no objection was made to the prosecutor’s 

statements during trial, we review for fundamental error. State v. 

Henderson, 210 Ariz. 561, 607, ¶ 19 (2005). 

¶12 At trial, the prosecutor asked victim D.E. whether she 

recognized Hassan: 

[THE PROSECUTION]: The defendant that’s charged in this 

case is sitting at Defense table. Do you recognize either of the 

parties that are sitting at the table?

[D.E.]: No, I do not.

[THE PROSECUTION]: Did either of those parties have 

permission to be in your hotel room on the night of January 

16th into the morning of January 17th?

[D.E.]: No, they did not.

¶13 Hassan argues that through this line of questioning, the 

prosecutor “told the victim that [Hassan] was the defendant” in violation 

of his due process rights. We decline to hold that referring to Hassan as 

“the defendant” was inappropriate. The prosecutor made no statement of 

his personal belief in Hassan’s guilt, see, e.g., State v. Hernandez, 170 Ariz. 

301, 307 (App. 1991), nor did his identification of Hassan as simply “the 

defendant” improperly suggest to the jury that Hassan was the actual 

perpetrator of the crime alleged. Furthermore, the prosecutor’s questions
STATE v. HASSAN

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were presumably intended to prove that the defendant did not have 

permission to be in the hotel room in the first place. On this record, 

therefore, we find no error in the prosecution’s question and identification.1

III. Jury Instructions 

¶14 Next, Hassan argues that the trial court erred when it declined 

to instruct the jury on criminal trespass as a lesser included offense of 

burglary. After closing arguments, Hassan renewed his request that the 

court include an instruction on criminal trespassing in the final jury 

instructions, arguing that the jury had heard conflicting testimony as to the 

amount of money actually stolen and returned to the victim. Although the 

State disagreed with Hassan’s argument and characterization of the 

evidence, it agreed that an instruction on criminal trespass would be 

appropriate under the circumstances. Because there was no objection from 

the State, the court initially agreed to include the requested instruction.

¶15 Upon further study, the court determined that the proposed 

instruction was not appropriate in light of State v. Malloy, 131 Ariz. 125 

(1981), which held that criminal trespass is not a lesser included offense of 

burglary. Accordingly, the court ultimately declined to instruct the jury on 

criminal trespass. Hassan noted his objection. We review for abuse of 

discretion a court’s refusal to give a requested jury instruction. State v. 

Dann, 220 Ariz. 351, 363–64, ¶ 51 (2009) (citing State ex rel. Thomas v. 

Granville, 211 Ariz. 468, 471, ¶ 8 (2005)). We review de novo, however, 

whether one crime is a lesser included offense of another. State v. Breed, 230 

Ariz. 462, 462, ¶ 4 (App. 2012). 

¶16 Generally, a defendant is entitled to receive instructions on 

any theory of a case supported by the evidence, State v. Valenzuela, 194 Ariz. 

404, 405, ¶ 2 (1999), and “all offenses necessarily included in the offense 

charged” must be submitted in a verdict form for the jury’s consideration, 

Ariz. R. Crim. P. 23.3. A jury should be instructed on a lesser included 

offense if it could rationally find that, although the evidence did not 

support all the elements of the crime charged, “all the elements of another 

or other lesser offenses had been [proven].” Malloy, 131 Ariz. at 129. An 

offense is “lesser included” if the more serious offense cannot be committed 

 

1 Because we hold there was no error, we also reject Hassan’s argument 

that the trial court should have conducted an evidentiary hearing to 

determine whether the allegedly suggestive identification prejudiced 

Hassan. 
STATE v. HASSAN

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without commission of the less serious offense. State v. Wall, 212 Ariz. 1, 3, 

¶ 14 (2006). 

¶17 In Malloy, our supreme court held that “[c]riminal trespass is 

not necessarily a lesser included offense of burglary.” 131 Ariz. at 131. As 

the court explained, under A.R.S. § 13-1503(A), criminal trespass requires 

that the perpetrator “knowingly” enter or unlawfully remain in a 

nonresidential structure. Id. at 130. Second-degree burglary, as it is defined 

in A.R.S. § 13-1507, has no such requirement. Instead, it requires that the 

perpetrator enter a structure unlawfully “with the intent to commit any 

theft or felony therein.” A.R.S. § 13-1507(A). In Malloy, the court explained 

that the word “knowingly” distinguishes criminal trespass from burglary 

by adding an additional, distinct element: the prosecution must prove that 

the defendant was aware of the unlawful nature of his entry. 131 Ariz. at 

130–31. Therefore, it is not a lesser-included offense of burglary. 

¶18 Accordingly, the trial court was not required to instruct the 

jury on criminal trespass. See id. at 129. The trial court did not abuse its 

discretion when it declined to give Hassan’s proposed jury instruction.

IV. Grand Jury Proceedings 

¶19 Finally, Hassan argues that he was denied due process at the

grand jury proceeding. Hassan claims the prosecutor did not adequately 

inform or educate the grand jury as to the applicable law and failed to

present sufficient evidence as to the critical elements of the charged 

offenses.

¶20 An error committed during grand jury proceedings, even if it 

may have impacted the grand jury’s charging decision, is rendered moot by 

a trial jury’s subsequent guilty verdict. State v. Atwood, 171 Ariz. 576, 617–

18 (1992) (disapproved on other grounds by State v. Nordstrom, 200 Ariz. 229 

(2001); United States v. Mechanik, 475 U.S. 66, 73 (1986) (explaining that a 

jury’s guilty verdict makes any error in its charging decision harmless). In 

this case, even assuming for discussion that the prosecution failed to 

properly inform the grand jury at the indictment proceedings, any error 

that may have occurred was rendered harmless by the jury’s guilty verdict 

at trial. We therefore reject Hassan’s argument. 
STATE v. HASSAN

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CONCLUSION

¶21 Having considered both Hassan’s and defense counsel’s 

briefs and having examined the record for reversible error, see Leon, 104 

Ariz. at 300, we find none. The evidence presented supports the conviction

and the sentence imposed falls within the range permitted by law. As far 

as the record reveals, Hassan was represented by counsel at all stages of the 

proceedings, and these proceedings were conducted in compliance with his 

constitutional and statutory rights and the Arizona Rules of Criminal 

Procedure.

¶22 Pursuant to State v. Shattuck, 140 Ariz. 582, 584–85 (1984), 

counsel’s obligations in this appeal have ended. Counsel need do no more 

than inform Hassan of the disposition of the appeal and his future options, 

unless counsel’s review reveals an issue appropriate for submission to the 

Arizona Supreme Court by petition for review. Hassan has thirty days from 

the date of this decision in which to proceed, if he desires, with a pro se

motion for reconsideration or petition for review.

¶23 The conviction and sentence are affirmed.