IN THE

ARIZONA COURT OF APPEALS

DIVISION TWO

THE STATE OF ARIZONA,

Appellee,

v.

ANTHONY LEWIS,

Appellant.

No. 2 CA-CR 2013-0323

Filed December 10, 2014

Appeal from the Superior Court in Pima County

No. CR20090879001

The Honorable Deborah Bernini, Judge

AFFIRMED AS MODIFIED

COUNSEL

Thomas C. Horne, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Eliza C. Ybarra, Assistant Attorney General, Phoenix

Counsel for Appellee

Lori J. Lefferts, Pima County Public Defender

By David J. Euchner and Erin K. Sutherland,

Assistant Public Defenders, Tucson

Counsel for Appellant
STATE v. LEWIS

Opinion of the Court

2

OPINION

Judge Howard authored the opinion of the Court, in which 

Presiding Judge Kelly and Judge Vásquez concurred.

H O W A R D, Judge:

¶1 After a jury trial, appellant Anthony Lewis was 

convicted of one count of first-degree murder, two counts of 

aggravated assault, and one count of second-degree burglary. On 

appeal, Lewis argues the trial court erroneously found him 

competent to stand trial and erred in its instructions to the jury on 

his first-degree murder charge. For the following reasons and those 

expressed in a separate memorandum decision, we affirm the 

convictions and sentences, except as stated in the memorandum 

decision.

1

Factual and Procedural Background

¶2 We view the record in the light most favorable to 

upholding the jury’s verdicts. State v. Robles, 213 Ariz. 268, ¶ 2, 141 

P.3d 748, 750 (App. 2006). Lewis and the victim, A.H., had lived 

together in Tucson near the end of 2007 and beginning of 2008. 

After an altercation between the two in January 2008, A.H. obtained 

an injunction against harassment by Lewis, which he violated later 

that month. A.H. subsequently moved to a different home, miles 

from where she had lived with Lewis. 

¶3 At some point, Lewis learned of A.H.’s new address. 

On September 21, A.H. returned home from a camping trip and 

discovered that Lewis had broken into her home while she was 

away. She also discovered a voicemail message from Lewis in 

 

1Lewis raises other issues related to sentencing that do not 

meet the criteria for publication. See Ariz. R. Sup. Ct. 111(b). We 

address them in a separate, contemporaneously filed memorandum 

decision. See Ariz. R. Sup. Ct. 111(h); Ariz. R. Crim. P. 31.26.
STATE v. LEWIS

Opinion of the Court

3

which he said, “[Y]ou’ll never guess where I am. I’m inside your 

house. Oh, what’s that? What’s this over here?” A.H. called 9-1-1 

to report the break-in. When the police arrived, they found Lewis in 

A.H.’s yard. The police arrested him, and, following his initial 

appearance that same day, the justice court released him with an 

instruction not to return to A.H.’s residence. 

¶4 The next day, September 22, Lewis returned to A.H.’s 

home, poured gasoline or some other kind of accelerant on her, and 

lit her on fire. A.H., naked and on fire, ran next door to her 

neighbor’s house; the neighbor placed her under running water in 

his shower and called 9-1-1. A.H. identified Lewis as her assailant 

when officers arrived at the neighbor’s home. Five months after the 

incident, A.H. died from complications related to her extensive 

burns. 

¶5 The grand jury indicted Lewis on one count of firstdegree murder, two counts of aggravated assault, and one count of 

first-degree burglary for the events that occurred on September 22. 

It also indicted him on one count of second-degree burglary for the 

break-in discovered on September 21. The jury found Lewis guilty

of all but the first-degree burglary charge. The trial court sentenced 

him to an aggravated prison term of seven years for his seconddegree burglary conviction, two aggravated terms of fifteen years 

for the assault convictions, both of which were to be served 

consecutively to the burglary sentence and to each other, and to 

natural life in prison on the first-degree murder charge, to be served 

concurrently with the sentences for aggravated assault.2 We have 

jurisdiction over his appeal pursuant to A.R.S. §§ 12-120.21(A)(1) 

and 13-4033(A)(1).

 

2The sentencing minute entry states Lewis waived his right to 

a jury trial and pled guilty. But the record is clear that Lewis was 

tried by a jury, and during the oral pronouncement of sentence, the 

court correctly stated Lewis had been found guilty of the charges by 

a jury. 
STATE v. LEWIS

Opinion of the Court

4

Competency to Stand Trial

¶6 Lewis argues the trial court abused its discretion in 

finding him competent to stand trial without any evidence 

demonstrating successful restoration despite previously 

determining him to be incompetent. 

¶7 After Lewis filed a motion pursuant to Rule 11.2, 

Ariz. R. Crim. P., the court ordered an examination of his

competence and subsequently found him not competent to stand 

trial and ordered restoration treatment. After two attempts at 

restoration and further hearings, the court ultimately found Lewis 

competent.

¶8 We review the trial court’s competency determinations 

for abuse of discretion. State v. Glassel, 211 Ariz. 33, ¶ 27, 116 P.3d 

1193, 1204 (2005). We do not reweigh the evidence. State v. Arnoldi, 

176 Ariz. 236, 239, 860 P.2d 503, 506 (App. 1993), overruled on other 

grounds by State v. Jones, 235 Ariz. 501, ¶ 10, 334 P.3d 191, 193 (2014). 

Instead, “[w]e must determine whether reasonable evidence 

supports the trial court’s finding that the defendant was competent, 

considering the facts in the light most favorable to sustaining the 

trial court’s findings.” Glassel, 211 Ariz. 33, ¶ 27, 116 P.3d at 1204.

¶9 Competency is an “extremely narrow issue” focused on 

the test articulated by Rule 11.1, Ariz. R. Crim. P. See State v. 

Steelman, 120 Ariz. 301, 315, 585 P.2d 1213, 1227 (1978). A defendant 

is incompetent to stand trial when, “as a result of mental illness, 

defect, or disability, the person is unable to understand the 

proceedings against him or her or to assist in his or her own 

defense.” Ariz. R. Crim. P. 11.1; see also A.R.S. § 13-4501(2). The fact 

that a defendant suffers from a mental illness, defect, or disability is 

not, by itself, grounds for finding the defendant incompetent. § 13-

4501(2); Ariz. R. Crim. P. 11.1. Thus, a defendant found to have an 

intellectual disability is “not shielded from trial” automatically. 

State v. Grell, 212 Ariz. 516, ¶ 38, 135 P.3d 696, 705 (2006).

¶10 If the trial court finds the defendant incompetent, the 

court “shall order competency restoration treatment unless there is 

clear and convincing evidence that [the] defendant will not regain 
STATE v. LEWIS

Opinion of the Court

5

competency within 15 months.” Ariz. R. Crim. P. 11.5(b)(3). The 

initial determination of incompetence raises a rebuttable 

presumption of continued incompetence. State v. Hehman, 110 Ariz. 

459, 460, 520 P.2d 507, 508 (1974); State v. Blazak, 110 Ariz. 202, 204, 

516 P.2d 575, 577 (1973). Nevertheless restoration treatment most 

often results in restoration to competence or a discovery the 

defendant had been malingering. Grell, 212 Ariz. 516, ¶ 39, 135 P.3d 

at 705. 

¶11 Lewis argues that, after finding a defendant 

incompetent, a trial court cannot find the defendant competent 

unless “a positive change in condition [is] presented, and there [is] 

evidence presented that the restoration efforts were successful.” He 

relies on the following language quoted in Nowell v. Rees: 

“For competency to be restored or regained 

there must be a positive change in the 

defendant’s condition indicating that he is 

now able to understand the proceedings 

against him and assist his own defense, 

whereas he could not previously do so. It 

is not enough for a new expert to disagree 

with the previous determination. A new 

expert must be able to explain that 

restoration efforts were effective, and the 

trial court must make findings to that 

effect.”

219 Ariz. 399, ¶ 4, 199 P.3d 654, 657 (App. 2008), quoting Nowell v. 

Hintze, No. 1 CA-SA 06-0236, 3 (decision order filed Mar. 22, 2007). 

¶12 Lewis’s reliance on Nowell for this proposition is 

misplaced. The statement relied on is a quote from an unpublished 

decision, was dictum as to the published opinion in Nowell, and did 

not create binding precedent. See Creach v. Angulo, 186 Ariz. 548, 

552, 925 P.2d 689, 693 (App. 1996); see also Ariz. R. Sup. Ct. 111(c); 

Ariz. R. Crim. P. 31.24. The issue decided in Nowell was whether the 

trial court had authority to order competency restoration treatment 

for more than twenty-one months after an initial finding of 

incompetence. 219 Ariz. 399, ¶¶ 12, 27-28, 199 P.3d at 659, 662. This 
STATE v. LEWIS

Opinion of the Court

6

court’s opinion did not concern the evidence necessary to overcome 

the presumption of continued incompetence, and the court “may not 

have been fully advised on the question.” Creach, 186 Ariz. at 552, 

925 P.3d at 693. 

¶13 Further, Nowell does not address whether the 

subsequent discovery that a defendant had been malingering will 

overcome this presumption. See 219 Ariz. 399, ¶¶ 12-27, 199 P.3d at 

659-62. And Lewis does not cite to any Arizona case suggesting a 

subsequent discovery of malingering is not sufficient to overcome 

this burden.3 Nor does he explain how the state could show a 

malingering defendant has been restored to competence when the 

defendant does not, in reality, lack the competence to stand trial. 

Accordingly, we reject Lewis’s contention that a positive change in a 

defendant’s condition and successful restoration is always required 

before a trial court can find competent a defendant previously found 

incompetent.

¶14 We accept, however, the premise that the trial court 

cannot make a subsequent finding of competence unless some new 

evidence—either of restoration or malingering—is presented to 

rebut the presumption of continued incompetence. But, as with 

other rebuttable presumptions, the presumption of continued 

incompetence “disappears entirely upon the introduction of any 

contradicting evidence and when such evidence is introduced the 

existence or non-existence of the presumed [incompetence] is to be 

determined exactly as if no presumption had ever been operative.” 

Sheehan v. Pima County, 135 Ariz. 235, 238, 660 P.2d 486, 489 (App. 

1982); cf. State v. Grilz, 136 Ariz. 450, 455, 666 P.2d 1059, 1064 (1983)

(presumption of sanity “vanishes once [defendant] presents 

sufficient evidence to raise a reasonable doubt as to sanity”). Thus, 

evidence demonstrating the defendant is competent or invalidating 

 

3In fact, in describing the competency restoration process, the 

Arizona Supreme Court has suggested that the discovery of 

malingering will overcome this presumption. Grell, 212 Ariz. 516, 

¶ 39, 135 P.3d at 705 (noting that, in event of either restoration to 

competence or discovery of malingering, defendant can be tried and 

punished). 
STATE v. LEWIS

Opinion of the Court

7

the original determination of incompetence, such as evidence of 

malingering, will suffice to remove the presumption of continued 

incompetence. Cf. State v. Arellano, 213 Ariz. 474, ¶ 13, 143 P.3d 1015, 

1018 (2006) (rebuttable presumption of intellectual disability4

“vanishes” when state presents evidence intelligence quotient scores 

invalid or other evidence capital defendant not suffering from 

intellectual disability).

¶15 At oral argument, Lewis asked this court to adopt a rule 

requiring the state to present clear and convincing evidence of 

competence to rebut the presumption. But our supreme court 

adopted a rebuttable presumption of continued incompetence. State 

v. Bradley, 102 Ariz. 482, 487, 433 P.3d 273, 278 (1967), overruled on 

other grounds by State v. Harvill, 106 Ariz. 386, 391, 476 P.2d 841, 846 

(1970). Lewis’s suggested heightened standard would contradict the 

general rule that a presumption vanishes with the introduction of 

“any contradicting evidence.” Sheehan, 135 Ariz. at 238, 660 P.2d at

489 (emphasis added); see also Seiler v. Whiting, 52 Ariz. 542, 548, 84 

P.2d 452, 454 (1938) (presumption exists “in the absence of any evidence 

to the contrary”). And we are not at liberty to ignore supreme court 

precedent. Lear v. Fields, 226 Ariz. 226, ¶ 17, 245 P.3d 911, 917 (App. 

2011). Further, Lewis has not produced any compelling rationale 

that the state’s burden should be increased to the clear and 

convincing standard. Thus we reject Lewis’s proposed rule.

5 See

 

4Although Arellano uses the term “mental retardation,” in

2011, the legislature amended the capital sentencing statutes to 

remove that term and replace it with “intellectual disability.” 2011 

Ariz. Sess. Laws, ch. 89, § 5.

5We recognize that, if the state bears the burden of proof on a 

defendant’s incompetence once the trial court has ordered a Rule 11 

examination pursuant to Rule 11.2, Ariz. R. Crim. P., this 

presumption provides little benefit to a defendant. Neither party 

briefed the burden issue, but we assume for purposes of this opinion 

that the state does bear the burden of proof. See State v. Romers, 159 

Ariz. 271, 274, 766 P.2d 623, 626 (App. 1988) (noting in dictum that 

state bears burden). We note that neither Rule 11.5, Ariz. R. 

Crim. P., nor A.R.S. § 13-4510 allocate the burden of proof. Because 

we conclude the court’s competency determination here “did not 
STATE v. LEWIS

Opinion of the Court

8

Golonka v. Gen. Motors Corp., 204 Ariz. 575, ¶ 50, 65 P.3d 956, 971 

(App. 2003) (adhering to general rules for rebuttable presumptions 

where neither substantive common law nor statute creating 

presumption compels otherwise).

¶16 Here, the record shows contrary evidence sufficient to 

rebut the presumption of continued incompetence, and reasonable 

evidence supports the trial court’s finding that Lewis was competent 

to stand trial. See Glassel, 211 Ariz. 33, ¶ 27, 116 P.3d at 1204. 

¶17 After four months of treatment and observation, Dr. 

Joseph, a forensic psychologist at the Pima County Restoration to 

Competency Program (“RTC”), submitted her final report 

concluding that Lewis had been malingering symptoms to 

exaggerate the severity of his intellectual deficiencies and that he 

was competent to stand trial. Joseph relied “on tests of effort, 

motivation, and malingering” that indicated Lewis had been trying 

to appear mentally ill by exaggerating or feigning symptoms. 

Joseph further noted that Lewis’s behavior during interviews, his 

telephone calls and medical requests while in custody, his 

demonstrated ability to maintain employment, his educational 

history, and observations of his behavior while in custody—

including a video of Lewis playing chess with another inmate—were 

inconsistent with the extent of his poor performance on psychiatric 

and cognitive tests. With this evidence before it, the court found 

Lewis incompetent but still restorable, believing that restoration 

treatment had been terminated prematurely.6

 

depend upon the allocation of the burden of proof,” we do not 

decide the issue. United States v. Whittington, 586 F.3d 613, 617-18 

(8th Cir. 2009) (noting federal statute on competency does not 

allocate burden of proof and circuit courts split on the issue).

6We reject Lewis’s suggestion that the trial court “rejected” 

Joseph’s report by finding Lewis incompetent. Nothing in the 

minute entries containing those rulings shows the court determined 

it would not give any weight to Joseph’s opinion. 
STATE v. LEWIS

Opinion of the Court

9

¶18 After nearly seven months of additional treatment and 

observation, Dr. Christiansen, restoration supervisor and forensic 

psychologist at the RTC, also concluded that Lewis had been 

malingering and that he was competent to stand trial. 

Christiansen’s report and his testimony were the only new evidence 

submitted to the trial court for the last contested competency 

hearing, the only new evidence upon which the trial court based its 

ultimate determination that Lewis was competent.

7 

¶19 Lewis contends that Christiansen’s final opinion was 

insufficient to overcome the presumption of continued

incompetence because it did nothing more than disagree with the 

previous findings of incompetence and relied on much of the same 

evidence on which Joseph had relied without further formal testing. 

But these contentions are contradicted by the record.

¶20 Christiansen reviewed Joseph’s assessment and much of 

the same data concerning Lewis’s behavior and history, yet he also 

reviewed information gathered during the second attempt at 

restoration. Psychiatric providers reported to Christiansen that 

Lewis could not recall information he previously had been able to 

recall in other interviews, unless the information asked about would 

support a diagnosis of psychiatric disorder and thereby benefit him.

One provider reported that Lewis said he did not want to do 

anything that would assist restoration treatment, and Lewis told a 

social worker that another inmate and a guard told him not to talk to 

RTC personnel. And his behavior with social workers and other 

inmates at RTC showed few signs, if any, of mood or psychotic 

disorders. 

¶21 Additionally while Lewis continued to deny the details 

of his own case, he was able to remember and relay details of his 

cellmate’s legal proceedings and of a Texas criminal case in which a 

 

7We note that a trial court is also allowed to rely on its own 

observations of a defendant when determining competence. Glassel, 

211 Ariz. 33, ¶ 28, 116 P.3d at 1204. But the record here does not 

suggest that the court’s direct observations were a factor in the 

ultimate determination of Lewis’s competence. 
STATE v. LEWIS

Opinion of the Court

10

man had been exonerated for murder after twenty-five years in 

prison. At one point, he commented to a social worker about his 

own case, saying in reference to the prosecution, “It’s about what 

they can prove.” During Christiansen’s approximate total of four 

hours meeting face-to-face with Lewis, Christiansen personally 

observed that Lewis, despite his initial refusals to talk and denial of 

understanding, eventually betrayed a greater understanding of his 

case and the role of the RTC than what he initially portrayed. 

¶22 Christiansen’s opinion did not rely exclusively on old 

information. Rather, he formed his opinion relying, in part, on new 

evidence gathered during nearly seven months of further restoration 

treatment. Consequently, the trial court was entitled to rely on 

Christiansen’s opinion as new evidence of malingering sufficient to 

rebut the presumption of continued incompetence.

¶23 Lewis also contends that Christiansen did not dispute 

evidence of Lewis’s low intelligence quotient, which suggested he 

had a mild intellectual disability. But again, intellectual disability, 

by itself, is not incompetence. See Grell, 212 Ariz. 516, ¶ 38, 135 P.3d 

at 705. We find nothing improper in the trial court’s reliance on his 

opinion.

¶24 Through Christiansen’s report and testimony, the state 

adequately rebutted any presumption of continued incompetence. 

And before making its ultimate ruling, the trial court reviewed 

Lewis’s entire competency file, including all expert opinions 

submitted on the issue, and made its determination by applying the 

proper Rule 11.1 standard. Thus the court did not abuse its 

discretion in determining Lewis was competent to stand trial. See

Glassel, 211 Ariz. 33, ¶ 27, 116 P.3d at 1204.

Jury Instructions on Predicate Offense

¶25 Lewis also argues his conviction for first-degree murder

must be vacated because the trial court erred in instructing the jury 

on third-degree burglary as the predicate offense for felony murder, 

and because insufficient evidence supports the jury’s finding that 

Lewis had committed this offense. Our analysis of the instructional 

error disposes of the challenge to the sufficiency of the evidence. 
STATE v. LEWIS

Opinion of the Court

11

“Fenced Commercial or Residential Yard”

¶26 Lewis argues the trial court erred by failing to instruct 

the jury that it was required to find he had entered a “fenced 

residential yard” in order to be guilty of third-degree burglary. We 

review de novo whether jury instructions properly state the law. 

State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997). We 

also review issues involving the interpretation of a statute de novo. 

State v. Magnum, 214 Ariz. 165, ¶ 6, 150 P.3d 252, 254 (App. 2007).

¶27 Lewis was charged with first-degree murder and firstdegree burglary in connection with the events of September 22. On 

the last day of trial, the state asked the trial court to instruct the jury 

on third-degree burglary as a predicate offense for felony murder. 

Lewis objected, contending he had no notice of that charge and that 

third-degree burglary requires entry of a fenced residential yard, 

rather than just any residential yard. 

¶28 Over Lewis’s objection, the trial court gave the thirddegree burglary instruction. The court instructed the jury as 

follows:

For the limited purpose of determining 

whether the state has proven the 

underlying offense of burglary for 

purposes of felony murder, you may also 

consider whether the defendant entered or 

remained unlawfully in a residential yard, 

and did so with the intent to commit any 

felony therein. That would constitute a 

form of burglary that would support a 

charge of felony murder. 

¶29 The jury found Lewis guilty of first-degree murder, 

specifying in the verdict form its unanimous determination of guilt

based on the felony-murder theory; it also unanimously rejected the 

premeditation theory. The jury acquitted Lewis of first-degree 

burglary and the lesser-included offense of second-degree burglary 

related to the events on September 22. 
STATE v. LEWIS

Opinion of the Court

12

¶30 On appeal, Lewis argues the jury’s rejection of the 

premeditation theory and the acquittal on the September 22 burglary 

charge indicate that it must have found him guilty of felony murder 

based on the predicate offense of third-degree burglary. Thus, he 

contends, the felony-murder conviction rests on a predicate offense 

for which the jury received an erroneous instruction.8 

¶31 Section 13-1506(A)(1), A.R.S., defines third-degree 

burglary as “[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 felony therein.” The 

parties disagree as to whether “fenced” modifies both commercial 

yard and residential yard, or if it modifies commercial yard only. 

And it appears that no other court has addressed the issue directly. 

See State v. Johnson, 215 Ariz. 28, ¶ 17, 156 P.3d 445, 449 (App. 2007) 

(referring to burglary in dictum as entrance into a “residential 

yard”); see also State v. McKeon, 201 Ariz. 571, ¶ 30, 38 P.3d 1236, 1242 

(App. 2002) (referring to burglary in dictum as entering or 

remaining in “a fenced residential yard”); State v. Bass, 184 Ariz. 543, 

546, 911 P.2d 549, 552 (App. 1995) (referring to third-degree burglary 

in dictum as concerning a “residential yard”). 

 

8The state argues Lewis’s assumption that third-degree 

burglary was the predicate offense for the jury’s guilty verdict on a 

felony-murder theory is incorrect because inconsistent verdicts are 

allowed in Arizona and the jury may have “based its felony murder 

conviction on first or second degree burglary, but still chosen not to 

convict on either burglary charge because of compromise or 

leniency.” The verdict form did not ask the jury to specify the 

predicate offense that was the basis for the guilty verdict; the jury 

could have based the verdict on third-degree burglary. Even if we 

accept the state’s argument, we nevertheless must decide whether 

third-degree burglary may be a predicate offense for felony murder 

because we will reverse a conviction that “may have been based, in 

whole or in part, on [an] impermissible felony murder theory.” See 

State v. Lopez, 158 Ariz. 258, 266, 762 P.2d 545, 553 (1988) (reversing 

conviction potentially based on felony-murder theory for which 

record showed insufficient evidence to convict). 
STATE v. LEWIS

Opinion of the Court

13

¶32 “Our task in interpreting the meaning of a statute is to 

fulfill the intent of the legislature that wrote it.” State v. Williams, 175 

Ariz. 98, 100, 854 P.2d 131, 133 (1993). “In determining the 

legislature’s intent, we initially look to the language of the statute 

itself.” Bilke v. State, 206 Ariz. 462, ¶ 11, 80 P.3d 269, 271 (2003). If 

the statute’s language is clear, we apply it “unless application of the 

plain meaning would lead to impossible or absurd results.” Id. “If a 

statute is ambiguous, we consider ‘the statute’s context, subject 

matter, historical background, effects and consequences, and spirit 

and purpose.’” State v. Filkes, 228 Ariz. 389, ¶ 6, 267 P.3d 1181, 

1182-83 (App. 2011), quoting Zamora v. Reinstein, 185 Ariz. 272, 275, 

915 P.2d 1227, 1230 (1996). Where no contrary legislative intent 

appears from the statute’s language or context, we may utilize 

grammatical rules to aid our construction of an ambiguous statute. 

See Pawn 1st, L.L.C. v. City of Phoenix, 231 Ariz. 309, ¶¶ 16, 19, 294 

P.3d 147, 149-50 (App. 2013).

¶33 The cases cited above demonstrate, albeit in dicta, the 

language in § 13-1506(A)(1) could support either interpretation. It 

could mean a fenced commercial or any residential yard, or a fenced 

commercial or fenced residential yard. Accordingly, we conclude 

the statute is ambiguous, and we must apply rules of statutory 

construction to determine its meaning. See Filkes, 228 Ariz. 389, ¶ 6, 

267 P.3d at 1182-83.

¶34 We first look to the statute’s context and surrounding 

sections. See id. “[O]ur statutory scheme . . . sets forth no less than 

three levels each of burglary and trespass . . . .” State v. Hinden, 224 

Ariz. 508, ¶ 13, 233 P.3d 621, 624 (App. 2010); see A.R.S. §§ 13-1502 

through 13-1504 (trespass); A.R.S. §§ 13-1506 through 13-1508

(burglary). In the statute defining first-degree criminal trespass, the 

legislature explicitly distinguished between fenced residential yards 

and all residential yards by using the phrases, “fenced residential 

yard” and “any residential yard” to distinguish between different 

criminal acts. § 13-1504(A)(2), (3) (emphasis added). Thus, when

the legislature has intended to criminalize an act committed in both 

fenced and unfenced residential yards in this statutory scheme, it 

has done so explicitly and unambiguously. Cf. State v. Peek, 219 

Ariz. 182, ¶ 19, 195 P.3d 641, 644 (2008) (“When the legislature 

intends to include attempts, it knows how to do so.”). 
STATE v. LEWIS

Opinion of the Court

14

¶35 We next apply grammatical rules to aid in our 

construction. See Pawn 1st, 231 Ariz. 309, ¶ 19, 294 P.3d at 150. One 

general rule of syntax is that “‘an initial modifier will tend to govern 

all elements in the series unless it is repeated for each element.’” 

Cady v. Schroll, 317 P.3d 90, 96 (Kan. 2014), quoting Wash. Educ. Ass’n 

v. Nat’l Right to Work Legal Def. Found., Inc., 187 Fed. App’x 681, 682 

(9th Cir. 2006). Courts will employ this rule when its application 

does not conflict with other principles of statutory construction. 

See, e.g., Cady, 317 P.3d at 96-99 (noting rule but finding it 

inapplicable to phrase “vicarious liability or responsibility,” in part 

because its application would render word “responsibility” 

meaningless); see also Long v. United States, 199 F.2d 717, 719 (4th Cir. 

1952) (“forcibly” modifies all verbs in phrase “forcibly assaults, 

resists, opposes, impedes, intimidates, or interferes with”); State v. 

Huggins, 802 So. 2d 276, 277-79 (Fla. 2001) (“occupied” modifies both 

nouns in phrase “occupied structure or dwelling” in burglary 

statute); Rounsavell v. Tipton, 497 P.2d 108, 109 (Kan. 1972) 

(“restricted” modifies both registered mail and certified mail in 

phrase “restricted registered or certified mail”); Wash.-Va. Ry. Co. v. 

Fisher, 92 S.E. 809, 811 (Va. 1917) (“county” modifies both nouns in 

phrase “county roads or highways”).

¶36 Applying this rule of syntax, “fenced” modifies both 

“commercial yard” and “residential yard” in the phrase “fenced 

commercial or residential yard.” See Rounsavell, 497 P.2d at 109. 

This construction gives effect to each of the words in the phrase and 

does not conflict with other principles of statutory interpretation. 

See Cady, 317 P.3d at 96. Further, nothing in the language or context 

of § 13-1506 suggests that this construction conflicts with the 

legislative intent behind the statute. See Pawn 1st, 231 Ariz. 309, 

¶ 19, 294 P.3d at 150. 

¶37 We conclude that “fenced commercial or residential 

yard” in § 13-1506 refers to fenced commercial or fenced residential 

yards, and it does not include unfenced residential yards. Thus the 

trial court erred in instructing the jury on third-degree burglary in 

this case. See State v. Moody, 208 Ariz. 424, ¶ 191, 94 P.3d 1119, 1161 

(2004) (instruction that misstates law is error). 
STATE v. LEWIS

Opinion of the Court

15

¶38 “Erroneous jury instructions are subject to a harmless 

error analysis.” State v. Dann, 205 Ariz. 557, ¶ 18, 74 P.3d 231, 239 

(2003). “An error is harmless if it appears ‘beyond a reasonable 

doubt that the error . . . did not contribute to the verdict obtained.’” 

Id., quoting Chapman v. California, 386 U.S. 18, 24 (1967). If a rational 

jury could find that the element omitted from the jury instructions 

had not been established beyond a reasonable doubt, then the error 

is not harmless. Id. The state has the burden of establishing that the 

error is harmless. State v. Henderson, 210 Ariz. 561, ¶ 18, 115 P.3d 

601, 607 (2005).

¶39 The state has met this burden by relying on evidence in 

the record showing no rational jury could have had a reasonable 

doubt A.H.’s yard was fenced. A “fenced residential yard” is “a unit 

of real property that immediately surrounds or is adjacent to a 

residential structure and that is enclosed by a fence, wall, building 

or similar barrier or combination of fences, walls, buildings or 

similar barriers.” A.R.S. § 13-1501(5). The photographs of A.H.’s 

property in the record clearly show that her backyard was enclosed 

by a combination of fences, gates, bushes, and trees forming a 

barrier. Witnesses familiar with A.H.’s yard also described a 

combination of fences, gates, bushes, and foliage separating A.H.’s 

yard from her neighbors’ yards and her back alley.

¶40 Nevertheless, Lewis argues that a gate on one side of 

the house “does not seem to connect to anything,” but the 

photographs cited by Lewis in support for this claim show 

otherwise. Consequently, this argument is unavailing.

¶41 Lewis further contends that “[t]he evidence presented at 

. . . trial does not permit a finding that the residential yard was 

‘fenced’” because it was not “enclosed” as required by the definition 

of “fenced residential yard” in § 13-1501(5). Lewis supports this 

contention by alleging, with little supporting evidence, that the gates 

to the yard were “rarely if ever closed” or were “propped open.” He 

cites testimony that one of the fences was “really ratty, really half 

broken down.” Lewis further alleges that one side of the house has 

“no fence or gate at all” but only shrubbery. 
STATE v. LEWIS

Opinion of the Court

16

¶42 But the existence of a barrier, not its quality, is what the 

fact-finder must determine to decide whether a yard is “enclosed” 

under § 13-1501(5). Lewis cites no authority to support his 

restrictive reading of § 13-1501(5). “Absent statutory definitions, 

courts apply common meanings and may look to dictionaries.” State 

v. Pena, 235 Ariz. 277, ¶ 6, 331 P.3d 412, 414 (2014) (internal citation 

omitted). The relevant dictionary definitions of “enclose” are “[t]o 

surround on all sides; close in” and “[t]o fence in so as to prevent 

common use.” The American Heritage Dictionary 587 (5th ed. 2011). 

Nothing in this definition suggests that a yard must be impenetrable 

to be enclosed, and we see no reason that an open gate or a “ratty” 

fence would make a residential yard any less “enclosed.” The fence 

was sufficient to prevent common use of the back yard. As to 

Lewis’s shrubbery concern, the definition of “fenced residential 

yard” includes yards that are enclosed with barriers other than 

fences. See § 13-1501(5) (“fence, wall, building, or similar barrier”). 

Consequently, we decline to adopt Lewis’s restrictive interpretation 

of “fenced residential yard.”

¶43 For the foregoing reasons, we find that the error in the 

jury instruction was harmless, and we will not disturb the jury’s 

first-degree murder verdict on these grounds. See Dann, 205 Ariz. 

557, ¶ 18, 74 P.3d at 239.

Requested Criminal Trespass Instruction

¶44 Lewis further argues the trial court committed 

reversible error in refusing to give the jury his requested instruction 

on criminal trespass as a “theory of the case.” We review a court’s 

refusal to give a requested jury instruction for an abuse of discretion. 

State v. Dann, 220 Ariz. 351, ¶ 51, 207 P.3d 604, 616-17 (2009). A 

party is not entitled to an instruction on a theory of the case unless 

the evidence reasonably supports it. State v. Bolton, 182 Ariz. 290, 

309, 896 P.2d 830, 849 (1995). The failure to give an instruction that 

is reasonably supported by the evidence is reviewed for harmless 

error. State v. Rodriguez, 192 Ariz. 58, ¶ 27, 961 P.2d 1006, 1011 

(1998).

¶45 After the trial court agreed to give the state’s instruction 

on third-degree burglary, Lewis asked for an instruction on criminal 
STATE v. LEWIS

Opinion of the Court

17

trespass, both as a lesser-included offense of first-degree burglary 

and as a “theory of the case.” The court refused to give the 

instruction as a lesser-included offense and as a “theory of the case,” 

stating, “I don’t think I can give a theory of the case that’s contrary 

to appellate case law or that in any way would confuse the jury as to 

what the law actually is.” 

¶46 “A defendant is not entitled to an instruction on an 

uncharged offense that does not qualify as a lesser-included offense, 

even if he might have been charged and convicted of the offense.” 

State v. Gonzalez, 221 Ariz. 82, ¶ 8, 210 P.3d 1253, 1255 (App. 2009). 

And characterizing the uncharged offense as a “theory of the case” 

does not entitle the defendant to an instruction. See State v. Keel, 137 

Ariz. 532, 534, 672 P.2d 197, 199 (App. 1983); see also State v. Teran, 

130 Ariz. 277, 279, 635 P.2d 870, 872 (App. 1981). 

¶47 In Teran, the defendant appealed his conviction for theft 

on the ground that the trial court had denied his request for an 

instruction and verdict form on shoplifting. 130 Ariz. at 278, 635 

P.2d at 871. Even though shoplifting was not a lesser-included 

offense of theft, the defendant argued that the instruction should 

have been given as a “theory of the case” instruction because “he 

should [have been] entitled to have the jury decide between the two 

offenses.” Id. We rejected this argument because “a finding that 

[defendant] was guilty of shoplifting would not mean that he was 

innocent of the theft charge.” Id. In Keel, we rejected a “theory of 

the case” argument when a defendant claimed he was entitled to a 

criminal trespass instruction during trial on a charge of attempted 

theft. 137 Ariz. at 534, 672 P.2d at 199. We noted that “a finding that 

[defendant] was guilty of trespass would not mean he could not be 

guilty of attempted theft.” Id.

¶48 In this case, the trial court did not abuse its discretion in 

refusing the requested instruction. Criminal trespass is not a lesserincluded offense of burglary, State v. Kozan, 146 Ariz. 427, 428-29, 

706 P.2d 753, 754-55 (App. 1985), and Lewis was not entitled to an 

instruction on it so that the jury could choose to find he committed a 

less serious crime if it was doubtful about felonious intent, see 

Gonzalez, 221 Ariz. 82, ¶ 8, 210 P.3d at 1255. 
STATE v. LEWIS

Opinion of the Court

18

¶49 Nor was criminal trespass a “theory of the case” 

because a finding of criminal trespass by the jury would not have 

meant that Lewis was not guilty of third-degree burglary. See Keel, 

137 Ariz. at 534, 672 P.2d at 199; see also Teran, 130 Ariz. at 278, 635

P.2d at 871. His theory of the case was simply that he was not guilty 

of burglary, and the absence of a criminal trespass instruction did 

not affect that argument. Further, the jury had been properly 

instructed on the felonious intent element of burglary, and an 

instruction on criminal trespass would have, if anything, “do[ne] 

nothing more than reiterate[d] or enlarge[d] the instructions in 

defendant’s language.” See Bolton, 182 Ariz. at 309, 896 P.2d at 849. 

The trial court properly refused Lewis’s proposed criminal trespass 

instruction, and we uphold the first-degree murder conviction.

Disposition

¶50 Based on the foregoing, we affirm Lewis’s convictions 

on all counts and his sentences on first-degree murder in count one, 

aggravated assault in count three, and second-degree burglary in 

count five. For the reasons discussed in the contemporaneously 

filed, separate memorandum decision, we modify Lewis’s sentence 

for aggravated assault in count two to be served concurrently with 

the sentence for aggravated assault in count three.