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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

JASON ROBERT O’NEILL, Appellant.

No. 1 CA-CR 14-0514

Appeal from the Superior Court in Maricopa County

No. CR2013-449074-001

The Honorable Lisa Andrus, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Paul J. Prato

Counsel for Appellant

Jason Robert O’Neill, Florence

Appellant
STATE v. O'NEILL

Decision of the Court

2

MEMORANDUM DECISION

Judge Randall M. Howe delivered the decision of the Court, in which 

Presiding Judge Margaret H. Downie and Judge Patricia K. Norris joined.

H O W E, Judge:

¶1 This appeal is filed in accordance with Anders v. California, 386 

U.S. 738 (1967) and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Counsel 

for Jason O’Neill asks this Court to search the record for fundamental error.

O’Neill has filed a supplemental brief in propria persona, which we have 

considered. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 We view the facts in the light most favorable to sustaining 

O’Neill’s conviction and resolve all reasonable inferences against him. State 

v. Fontes, 195 Ariz. 229, 230 ¶ 2, 986 P.2d 897, 898 (App. 1998).

¶3 Ruben L.1 returned home and saw that his front gate was

propped open with a suitcase. He heard sounds coming from his laundry 

room. Ruben opened the door and saw O’Neill holding one of his blue bags.

O’Neill immediately threw the bag into the washing machine. Ruben asked 

O’Neill why he was in his house, and O’Neill said that he thought it was an 

empty apartment. Ruben then asked how it could be empty when stuff was 

everywhere. After arguing, O’Neill walked away and grabbed the suitcase

at the gate, took a bottle out, and drank from it. Ruben called the police and

followed O’Neill into the street, updating the police operator as he walked. 

¶4 Soon after, O’Neill sat at a bus stop, and police officers 

approached him. Officer Chris Lentine arrived and took charge of the 

investigation. He spoke to Ruben, who identified O’Neill as the man who 

entered his home. He then spoke to O’Neill. O’Neill said that he needed to 

go to urgent care. But Officer Lentine did not observe anything about 

O’Neill that prompted the officer to get him medical attention. The officer 

looked in O’Neill’s suitcase, but found no “[e]vidence of a crime,” so he 

placed it in “safekeeping.” 

 

1 We use the victim’s first name to protect his privacy. State v. 

Maldonado, 206 Ariz. 339, 341 ¶ 2 n.1, 78 P.3d 1060, 1062 n.1 (App. 2003).
STATE v. O'NEILL

Decision of the Court

3

¶5 While other officers detained O’Neill at the bus stop, Officer 

Lentine drove to Ruben’s condo, which looked “like a residential structure, 

like an adobe type style . . . . [with] several units connected together.” In the 

laundry room, he saw a washer, dryer, shelves, and miscellaneous items. 

Inside the washer was a blue bag that contained power tools and a battery 

or charger. On the washer was a drill bit set. 

¶6 After examining the scene, Officer Lentine returned to the bus 

stop. He read O’Neill his Miranda2 rights, and O’Neill agreed to answer 

questions. O’Neill told the officer that he came to Mesa the previous night

because he had a job interview that day. O’Neill explained that he was 

going to take the bus, but he did not have money. When asked whether he 

had gone into Ruben’s home, he said that he thought it was an urgent care

facility. Once he realized it was a residence, however, he decided to take 

the tools. He was going to either pawn or sell them for money.

¶7 O’Neill was arrested and charged with one count of burglary 

in the second degree. The State filed four sentencing enhancement 

allegations. At trial, Ruben and Officer Lentine testified, and Ruben made 

an in-court identification of O’Neill. After the State rested its case-in-chief, 

defense counsel moved for judgment of acquittal pursuant to Arizona Rule

of Criminal Procedure 20, arguing that substantial evidence did not exist to 

go to the jury. Finding otherwise, the court denied the motion. O’Neill did 

not testify. The jury found O’Neill guilty as charged. 

¶8 The trial court conducted the sentencing hearing in 

compliance with O’Neill’s constitutional rights and Arizona Rule of 

Criminal Procedure 26. The court found that the State had shown by clear 

and convincing evidence that O’Neill had two allegeable prior convictions. 

It sentenced O’Neill to the presumptive 11.25 years’ imprisonment, with 

289 days of presentence incarceration credit. O’Neill timely appealed.

DISCUSSION

¶9 Counsel for O’Neill has advised this Court that after a diligent 

search of the entire record, he has found no arguable question of law. But 

O’Neill has filed a supplemental brief raising 14 issues, which we have 

considered. Because O’Neill failed to raise these issues at trial, we review 

them only for fundamental error. See State v. Henderson, 210 Ariz. 561, 567 

¶¶ 19–20, 115 P.3d 601, 607 (2005). 

 

2 Miranda v. Arizona, 384 U.S. 436 (1966).
STATE v. O'NEILL

Decision of the Court

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¶10 O’Neill primarily argues that the evidence was insufficient to 

support his conviction because the State presented no physical evidence

linking him to the offense, he did not enter a residence, and he did not have 

the requisite intent when he entered. We review de novo the sufficiency of 

evidence to support a conviction. State v. West, 226 Ariz. 559, 562 ¶ 15, 250 

P.3d 1188, 1191 (2011). Contrary to O’Neill’s argument, the State did not 

need to present “physical evidence” linking him to the theft. As the trial 

court instructed the jury: “The State must prove guilt beyond a reasonable 

doubt based on the evidence. . . . Evidence may be direct or circumstantial. 

Direct evidence is the testimony of a witness. . . . Circumstantial evidence 

is the proof of a fact or facts from which you may find another fact.”

“Arizona law makes no distinction between circumstantial and direct 

evidence.” State v. Stuard, 176 Ariz. 589, 603, 863 P.2d 881, 895 (1993). 

¶11 Sufficient evidence supports O’Neill’s conviction. A person 

commits burglary in the second degree by (1) “entering or remaining 

unlawfully in or on a residential structure” and (2) “with the intent to 

commit any theft or any felony therein.” A.R.S. § 13–1507(A). The record 

shows that Ruben’s condo was a residential structure. It also shows that 

when Ruben returned home, O’Neill was standing in his laundry room.

Ruben did not know O’Neill, nor did he give him permission to enter his 

residence. The record further shows that although O’Neill first thought that 

the home was an urgent care facility, after he realized it was a residence, he 

decided to stay. Moreover, O’Neill decided to take Ruben’s tools and pawn 

them for money—as he told Officer Lentine—thereby developing the

necessary intent. See State v. Altamirano, 166 Ariz. 432, 435, 803 P.2d 425, 428 

(App. 1990) (“When a person’s intent in remaining on premises is for the 

purpose of committing a theft or some felony therein, such individual is no 

more welcome than one who initially entered with such intent.”). 

Consequently, sufficient evidence supports O’Neill’s conviction. 

¶12 O’Neill next contends that a prospective juror improperly 

commented on his decision not to testify by answering defense counsel’s 

questions during voir dire about a defendant’s decision not to testify. “To 

be constitutionally proscribed, a comment must be adverse; that is, it must 

support an unfavorable inference against the defendant and, therefore, 

operate as a penalty imposed for exercising a constitutional privilege.” State 

v. Ramos, 235 Ariz. 230, 235 ¶ 13, 330 P.3d 987, 992 (App. 2014) (quoting State 

v. Mata, 125 Ariz. 233, 238, 609 P.2d 48, 53 (1980)). Contrary to O’Neill’s

contention, the prospective juror did not comment on O’Neill’s decision not 

to testify; instead, he was answering defense counsel’s questions about a 

hypothetical defendant not testifying. At that point in the trial, the 

prospective juror had no knowledge that O’Neill would not testify. 
STATE v. O'NEILL

Decision of the Court

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¶13 O’Neill also argues that his voluntary intoxication should 

have been considered in determining intent and that he was unable to 

appreciate the wrongfulness of his action because of the side effects from 

his medicines. The jurors in fact did consider his voluntary intoxication due 

to alcohol and drugs in determining his mental state. The jury instruction 

provided that the jurors “may take into consideration the fact that the 

accused was intoxicated at the time [of committing the offense] in 

determining the culpable mental state with which he committed the act.”

Intoxication is “any mental or physical incapacity resulting from use of 

drugs, toxic vapors or intoxicating liquors.” 

¶14 O’Neill further contends that he was prejudiced by admission 

of Ruben’s alleged inconsistent statements and of Officer Lentine’s alleged 

inconsistent statements and paraphrases of O’Neill’s statements. O’Neill 

has not demonstrated how the statements prejudiced his case, however. See 

State v. Parker, 22 Ariz. App. 111, 116, 524 P.2d 506, 511 (1974) (providing 

that a mere claim of prejudice is not enough to meet a showing of prejudice 

requiring reversal). Further, inconsistency and paraphrasing is not 

necessarily false or perjured, and witness credibility is for jurors, not the 

court, to determine. State v. Williams, 209 Ariz. 228, 231 ¶ 6, 99 P.3d 43, 46 

(App. 2004).

¶15 O’Neill also argues that the State violated his rights under 

Brady v. Maryland, 373 U.S. 83 (1963), by failing to disclose exculpatory 

evidence. But O’Neill has waived this argument because he does not 

identify the evidence the State allegedly withheld, nor does the record 

indicate that the State withheld evidence. See State v. Bolton, 182 Ariz. 290, 

298, 896 P.2d 830, 838 (1995) (providing that insufficient argument on 

appeal waives claim). 

¶16 O’Neill next contends that his Miranda rights were violated 

during his initial encounter with the officers. See Miranda, 384 U.S. at 436. 

But this argument fails because O’Neill was in investigative detention, 

which does not implicate Miranda. See Berkemer v. McCarty, 468 U.S. 420, 

439–40 (1984) (“The comparatively nonthreatening character of detentions

of this sort explains the absence of any suggestion in our opinions that Terry

stops are subject to the dictates of Miranda.”); State v. Spreitz, 190 Ariz. 129, 

143–44, 945 P.2d 1260, 1274–75 (1997) (relying in part on Berkemer to 

conclude that investigative traffic stop not subject to Miranda). 

¶17 O’Neill further argues that the State failed to introduce 

evidence that would have proved him innocent, specifically, that he was 

not a “homeless, penniless and a vagabond” and that his suitcase contained 
STATE v. O'NEILL

Decision of the Court

6

evidence to support his interview story. But the State has no obligation to

offer any particular type of evidence at trial. See, e.g., State v. Rhodes, 112 

Ariz. 500, 504, 543 P.2d 1129, 1133 (1975) (explaining that the fact that the 

“fingerprint people did not attempt to take fingerprints from certain areas 

or items” constituted no error).

¶18 O’Neill contends finally that his prior felony convictions were 

non-violent, that the trial court should have considered his interview story 

in evaluating his pecuniary value, and that Ruben suffered no harm from 

his action. We summarily reject these claims because they have no legal 

basis or are based on a misapprehension of the applicable law.

¶19 We have read and considered counsel’s brief and fully 

reviewed the record for reversible error. See Leon, 104 Ariz. at 300, 451 P.2d 

at 881. We find none. All of the proceedings were conducted in compliance 

with the Arizona Rules of Criminal Procedure. So far as the record reveals, 

counsel represented O’Neill at all stages of the proceedings, and the 

sentences imposed was within the statutory limits. We decline to order 

briefing, and we affirm O’Neill’s conviction and sentence.

¶20 Upon the filing of this decision, defense counsel shall inform 

O’Neill of the status of his appeal and of his future options. Defense counsel 

has no further obligations unless, upon review, counsel finds an issue 

appropriate for submission to the Arizona Supreme Court by petition for 

review. See State v. Shattuck, 140 Ariz. 582, 584–85, 684 P.2d 154, 156–57 

(1984). O’Neill shall have 30 days from the date of this decision to proceed, 

if he desires, with a pro per motion for reconsideration or petition for 

review.

CONCLUSION

¶21 We affirm O’Neill’s conviction and sentence.