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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

KENNETH WILLIAM TAYLOR, Appellant.

No. 1 CA-CR 16-0009

Appeal from the Superior Court in Maricopa County

No. CR2012-165045-001

The Honorable Jo Lynn Gentry, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Joseph T. Maziarz

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Nicholaus Podsiadlik

Counsel for Appellant
STATE v. TAYLOR

Decision of the Court

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MEMORANDUM DECISION

Judge Peter B. Swann delivered the decision of the court, in which Presiding 

Judge Andrew W. Gould and Judge Patricia A. Orozco (Retired) joined.

S W A N N, Judge:

¶1 Appellant Kenneth William Taylor appeals his conviction for 

one count of third-degree burglary. He argues that the evidence was 

insufficient to show intent, that the prosecutor committed misconduct by 

misstating the law, and that the superior court committed fundamental 

error by not instructing the jury that criminal trespass is a lesser-included 

offense or that mere presence is not enough for a conviction. For the reasons 

that follow, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 The night of December 25–26, 2012, Officer Metcalf, a 

uniformed police officer, was on patrol in downtown Mesa in a marked 

police vehicle. At about 12:30 a.m., dispatch received a silent alarm from

the Mesa Historical Museum. Ofc. Metcalf was dispatched and arrived 

about four minutes after the alarm issued. When he arrived, he exited his 

police car and started walking towards the museum. He noticed Taylor

walking back and forth between rooms in one of the building’s other suites, 

the Benedictine University.1 As Ofc. Metcalf got closer, Taylor exited the 

university through a shattered glass door, got on a bicycle, and headed east. 

After a brief chase, Taylor was apprehended, interrogated, and transferred 

to a holding facility. 

¶3 Ofc. Metcalf returned to the university and conducted a 

room-to-room search. The desks had been rummaged through; it was later 

determined that five laptop computers and a couple of docking stations 

were missing; they were never recovered. No fingerprints were found at 

the scene. Ofc. Metcalf also checked the Mesa Historical Museum and 

discovered that the silent alarm was triggered when a river rock was 

thrown through a glass door. No one was in the museum and only a couple 

of TV cables were missing. 

 

1 Though the university had an alarm system, it was not functioning.
STATE v. TAYLOR

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¶4 A jury found Taylor guilty of third-degree burglary. He 

appeals. 

DISCUSSION

I. THE STATE PRESENTED SUFFICIENT EVIDENCE OF INTENT.

¶5 A person commits third-degree burglary by entering or 

remaining unlawfully in a nonresidential structure with the intent to 

commit a theft or felony therein. A.R.S. § 13-1506. Intent may be inferred 

from all the facts and circumstances and need not be supported by direct 

proof. E.g., State v. Quatsling, 24 Ariz. App. 105, 108 (1975); see also State v. 

Noriega, 187 Ariz. 282, 286 (App. 1996). 

¶6 Taylor argues the state failed to present sufficient evidence 

that he intended to commit a crime or theft when he entered the university

and that he was merely present in the university. We view the evidence in 

the light most favorable to support a conviction and will affirm unless there 

is a complete absence of probative facts to support the verdict. Quatsling, 

24 Ariz. App. at 108. 

¶7 Taylor relies on State v. Rood, in which the court held that the 

defendant’s entry through an unlocked door into a house where a neighbor 

saw him “with his hand resting” on a television was not sufficient evidence 

of intent. 11 Ariz. App. 102, 103, 104 (1969). The court held that proof of 

intent cannot be inferred from a nonforcible entry through an unlocked 

door. Id. at 104. But the court noted that the holding did not apply to cases 

in which a defendant entered a structure by force, through a window, or 

“some other suspicious means” where the manner of entry could support 

an inference of intent.2 Id.; see also State v. Taylor, 25 Ariz. App. 497, 499 

(1976) (explaining that intent may be inferred from an unauthorized entry 

by force). 

 

2 Taylor argues this statement is dictum. He is wrong. Dictum is a

“court's statement on a question not necessarily involved in the case before 

it.” Creach v. Angulo, 186 Ariz. 548, 552 (App. 1996), approved 189 Ariz. 212 

(1997). The issue in Rood was if the evidence was sufficient to prove the 

intent element for burglary. The court necessarily had to distinguish Rood’s

facts from those of other cases. See generally Rood, 11 Ariz. App. at 104–05. 

Moreover, our statement is consistent with long-standing law. See

McCreary v. State, 25 Ariz. 1 (1923).
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¶8 To the extent Rood is still good law, it has been confined to its 

facts. See State v. Cabrera, 114 Ariz. 233, 235 (1977) (distinguishing Rood

when the defendants entered a business and ran when the owners caught 

them standing with mechanic’s tools over the open hood of a car); State v. 

Talley, 112 Ariz. 268, 270 (1975) (distinguishing a late-night entry while 

possessing the victim’s revolver from the mid-morning entry in Rood and 

holding that a jury, to find intent, could consider a defendant’s attempt to 

hide); State v. Fierro, 15 Ariz. App. 369, 370–71 (1971) (narrowly applying 

Rood to instances where there is no forcible entry and no evidence of a crime 

after entry); State v. Salcido, 12 Ariz. App. 275, 276 (1970) (distinguishing 

Rood where there was forcible entry and an open cash register and cabinets). 

¶9 The facts of this case differ significantly from those in Rood.

Here, there was clearly a theft. And at most, five minutes passed between 

the silent alarm and Ofc. Metcalf’s arrival. Though he was not caught in 

possession of any items from the university, the jury could have inferred 

that Taylor had help and stayed at the scene longer than his co-conspirators

who escaped with the loot. Even if someone else broke the glass doors at 

the museum and the university and fled with the property before Taylor 

arrived, the jury could reasonably infer that Taylor intended to steal 

something from the already-burglarized university.

3 Taylor entered a 

university office, without permission or authorization, through a shattered 

glass door at 12:30 a.m. on Christmas Night wearing gloves with a “full 

rubber bottom,” then fled from uniformed police officers. Ofc. Metcalf saw 

him going back and forth between rooms, and there was a box with a 

printer, clock, and other items (that was not placed there by an employee)

near the shattered door through which Taylor fled. There is sufficient

evidence that Taylor intended to commit a theft.

II. THERE WAS NO PROSECURTORIAL MISCONDUCT.

¶10 Taylor argues that the prosecutor incorrectly told the jury that 

mere presence was sufficient to convict Taylor of burglary. It is true that 

 

3 Taylor seems to argue that so long as a defendant merely enters an 

already-burglarized structure, he cannot be convicted of burglary unless he 

is caught with stolen property in his hands. This is not a reasonable reading 

of Rood and runs contrary to Arizona’s long-standing burglary law. 

Arizona abandoned the common law requirements of breaking and 

entering in favor of a standard under which even a lawful entry becomes 

burglary if it is supported by the proper intent. McCreary, 25 Ariz. at 2; see 

also Rood, 11 Ariz. App. at 104 (distinguishing cases where a breaking and 

entering can imply intent).
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the prosecutor may not misstate the law to the jury. State v. Serna, 163 Ariz. 

260, 266–67 (1990). Because Taylor did not object at trial, we review for 

fundamental error, and must affirm unless Taylor proves there was an error 

that goes to the foundation of the case, deprived him of a right essential to 

his defense, or was of such magnitude to render the trial unfair. State v. 

Henderson, 210 Ariz. 561, 567, ¶ 19 (2005). 

¶11 The prosecutor correctly stated that burglary requires entry 

with the intent to commit a theft or felony. A.R.S. § 13-1506(A). In 

reviewing the prosecutor’s statements, we find only one instance that could 

plausibly imply that mere presence is sufficient. The prosecutor said in 

relevant part: 

[L]et’s assume, for argument’s sake, he wasn’t the one that 

smashed the door. Let’s assume he wasn’t the one that went 

in and disconnected computers, turned over monitors, 

opened drawers. For argument’s sake, just assume somebody 

else did it. . . . 

If you believe at that moment, even if he didn’t do any of that 

other stuff, but he enters after somebody else does, he enters 

without permission. He had no permission from Benedictine 

University. Even if the door was broken, even if the door, let’s 

say, was wide open and propped open with something, he 

had no permission to be in there, period, whatsoever.

If you believe he entered at that point with the intent to 

commit a theft, that’s burglary in the third degree. And, 

again, in the context of 12:30 in the morning, nobody around, 

it’s a business, no authority whatsoever to be there, there’s no 

other reason for somebody to go in there but for [sic] to 

commit a theft. 

We see nothing legally incorrect in this statement. 

¶12 The jury can infer intent from the totality of the circumstances. 

The prosecutor correctly stated that the state did not have to prove Taylor 

actually stole anything, only that he intended to do so. Fairly construed, 

the prosecutor’s argument did not suggest that mere presence is enough for 

a conviction. Though Taylor takes issue with the prosecutor’s final 

statement that “there's no other reason for somebody to go in there,” this 

statement simply presented a reasonable inference from the facts. Taylor 

offers no innocent explanation for his presence. We perceive no error, much 

less one that rendered his trial fundamentally unfair.
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III. THERE WAS NO FUNDAMENTAL ERROR IN THE FINAL JURY 

INSTRUCTIONS.

¶13 Taylor finally argues that the superior court committed 

fundamental error by not instructing the jury that trespass is a lesserincluded offense to burglary and by not including a mere-presence 

instruction. 

¶14 Because he did not object at trial, Taylor has waived his 

arguments on the jury instructions on appeal, and we review only for 

fundamental error. Ariz. R. Crim. P. 21.3(c); State v. Erivez, 236 Ariz. 472, 

475, ¶ 13 (App. 2015). Though the failure to give a jury instruction can be 

fundamental error, we require a specific showing of prejudice for relief. 

State v. Eddington, 226 Ariz. 72, 80, ¶ 22 (App. 2010) (internal quotations and 

citations omitted), as amended on reconsideration (Feb. 10, 2011), aff'd, 228 

Ariz. 361 (2011). 

¶15 Taylor contends that the case law is split on whether trespass 

is a lesser-included offense for burglary. He encourages us to hold that it 

is. 

¶16 In 1981, our supreme court held that trespass is not 

necessarily a lesser-included offense of burglary, because criminal trespass 

requires that a defendant know his presence was unlawful while burglary 

does not. State v. Malloy, 131 Ariz. 125, 129–31 (1981). The court relied on 

the version of A.R.S. § 13-105 in effect at the time, which prescribed: 

“‘Knowingly’ means, with respect to conduct or to a circumstance 

described by a statute defining an offense, that a person is aware or believes 

that the person’s conduct is of that nature or that the circumstance exists.”

See also State v. Kozan, 146 Ariz. 427, 429 (App. 1985).

¶17 In 1981, the legislature amended the definition of “knowing”

by adding: “It does not require any knowledge of the unlawfulness of the 

act or omission.” Id. In State v. Kozan, we determined that the added 

language did not affect the holding of Malloy, because the statutory 

elements of trespass require the defendant to know his presence is unlawful

even if the statutory definition of “knowing” does not. Id.; see also A.R.S. 

§ 13-504.

¶18 In 1991, without discussing Kozan or Malloy, this court upheld 

the superior court’s vacation of a conviction for criminal trespass when the 

jury was instructed that it was a lesser-included offense for burglary and 

found the defendant guilty of both. State v. Engram, 171 Ariz. 363 (App. 

1991). We noted that, “When the jury improperly returned the inconsistent 
STATE v. TAYLOR

Decision of the Court

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verdicts for burglary and the lesser included offense of trespass, the trial 

judge immediately realized that a defendant cannot be convicted for both a 

greater and a lesser included offense.” Id. at 365 (citing Brown v. Ohio, 432 

U.S. 161, 168 (1977)). 

¶19 There is no split in the case law. First, our opinion in Engram

assumed, rather than held, that trespass was a lesser-included offense. 

Second, we reject the argument that Kozan and Malloy were improperly 

decided and should be reversed. Malloy was a decision by the Arizona 

Supreme Court, which we cannot overrule, modify, or disregard. State v. 

Sullivan, 205 Ariz. 285, 288, ¶ 15 (App. 2003). For that reason, to the extent 

that Engram stands for a rule inconsistent with Malloy, it is not persuasive 

authority. The rule in Arizona is the Supreme Court’s holding in Malloy, 

and we apply it here. Because trespass is not a lesser-included offense of 

burglary as a matter of law, we conclude that the trial court did not err.

¶20 Taylor next argues that based on the facts of this case, trespass 

is a lesser-included offense of burglary. Taylor’s argument is contrary to 

well-established Arizona law. In Arizona, a defendant may ask for a lesserincluded-offense instruction only if the requested instruction deals with an

offense that (1) is a lesser-included offense by its nature or as charged and 

(2) is supported by the facts. State v. Mitchell, 138 Ariz. 478, 479 (App. 1983) 

(citing State v. Celaya, 135 Ariz. 248 (1983)). Here, trespass is not a lesserincluded offense, ¶ 19, supra, nor was it charged as one. Thus, it does not 

matter whether the facts would have supported the charge. State v. Teran, 

130 Ariz. 277, 278 (1981).

¶21 Finally, Taylor argues that the trial court committed 

fundamental error by failing to issue the mere-presence instruction he 

requested. We perceive no fundamental error. Taylor was caught moving 

room-to-room in an obviously burglarized, nonresidential building after 

midnight. Though the court could properly have given the instruction, the 

facts of this case did not require it.
STATE v. TAYLOR

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CONCLUSION

¶22 For the foregoing reasons, we affirm.