State v. Bruno ( 2017 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
CECIL LESLIE BRUNO, Appellant.
No. 1 CA-CR 17-0078
FILED 12-12-2017
Appeal from the Superior Court in Yavapai County
No. V1300CR201680037
The Honorable Michael R. Bluff, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Elizabeth B. N. Garcia
Counsel for Appellee
Law Office of David G. Bednar, Flagstaff
By David G. Bednar
Counsel for Appellant
STATE v. BRUNO
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Lawrence F. Winthrop delivered the decision of the Court,
in which Judge Diane M. Johnsen and Judge Maria Elena Cruz joined.
W I N T H R O P, Presiding Judge:
¶1 Cecil Leslie Bruno (“Bruno”) appeals his conviction and
sentence for first-degree burglary. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 Early in the morning on January 17, 2016, Camp Verde
officers responded to a 911 call. When the first officer arrived at the scene
he met Bruno’s ex-girlfriend, Sandra,1 and Bruno’s cousin, Jason, outside a
trailer. Sandra had gone out with Jason the evening of January 16, 2016,
and returned with him to his mother’s trailer, which was located at the end
of his mother’s driveway.2
¶3 Sandra and Jason had been asleep in the trailer when they
heard a scuffling noise and then heard Bruno yell, “[d]on’t move, don’t
move, don’t move or I’ll shoot.” Sandra and Jason sat up, discovered Bruno
was inside the trailer armed with a shotgun, and tried to calm him down.
Unable to do so, Sandra wrestled the shotgun away from Bruno, left the
trailer, and called 911. When Sandra grabbed the shotgun, Jason grabbed
Bruno around the neck. Jason stayed in the trailer, restraining Bruno, until
he heard police sirens. Jason then got dressed and left the trailer.
¶4 When the officers arrived at the scene, they commanded
Bruno to exit the trailer. Bruno eventually complied with the officers’
commands and was taken into custody.
¶5 On January 22, 2016, Bruno was indicted on six counts: (1)
first-degree burglary, a class 2 dangerous felony; (2) aggravated assault per
domestic violence, a class 3 felony; (3) aggravated assault per domestic
1 Bruno and Sandra had a brief romantic relationship in 2014, and then
lived together as roommates.
2 Jason did not live in the trailer, but his mother allowed him to
occasionally stay there.
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STATE v. BRUNO
Decision of the Court
violence, a class 3 felony; (4) aggravated assault, a class 3 felony; (5)
threatening or intimidating per domestic violence, a class 1 misdemeanor;
and (6) threatening or intimidating, a class 1 misdemeanor. Before trial the
court granted the State’s motion to dismiss counts five and six with
prejudice.
¶6 At trial Jason described the trailer as fifteen to sixteen feet
long with three beds, and stated its main purpose was for sleeping. In
addition to the beds, the trailer had a kitchen, bathroom, closet, and
refrigerator. The State introduced into evidence a photograph of the
trailer’s interior, which partially shows the bed and kitchen area. Jason also
testified that the trailer was his mother’s, and that Bruno did not have
permission to enter the trailer that evening.3
¶7 At the close of the State’s case, Bruno moved under Arizona
Rule of Criminal Procedure 20 (“Rule 20”) for judgment of acquittal on
count 1, first-degree burglary.4 The court denied Bruno’s motion, and after
deliberation, the jury found Bruno guilty on all counts. The court then
sentenced Bruno to seven years’ imprisonment for first-degree burglary
with fifty-three days pre-incarceration credit.5
¶8 Bruno filed a timely notice of appeal. We have appellate
jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9, and
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1) (2016), 13-4031
(2010), and 13-4033(A) (2010).
3 Jason testified that he was unsure whether the trailer was locked that
night; however, that does not change the analysis of whether Bruno’s
actions constituted an unlawful entry.
4 On appeal, Bruno does not argue there was insufficient evidence that
he intended to commit a felony; instead he argues the State failed to provide
substantial evidence that he entered the trailer unlawfully and that the
trailer is a residential structure. Bruno also moved for a directed verdict on
counts two, three, and four; however, Bruno appeals only the denial of the
Rule 20 motion for count one.
5 Bruno was also sentenced to five years’ imprisonment for counts
two, three, and four to run concurrent with his sentence for count one. On
appeal, he does not challenge any of the other convictions.
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STATE v. BRUNO
Decision of the Court
ANALYSIS
¶9 On appeal, Bruno argues the trial court erred by denying his
Rule 20 motion for acquittal of first-degree burglary.
¶10 We review de novo the trial court’s denial of a Rule 20 motion
for judgment of acquittal. State v. Parker, 231 Ariz. 391, 407, ¶ 69 (2013). See
also State v. Bible, 175 Ariz. 549, 595 (1993) (“We conduct a de novo review
of the trial court’s decision” of whether to grant a motion for acquittal.). A
judgment of acquittal is appropriate only if no substantial evidence exists
to warrant a conviction. State v. Fulminante, 193 Ariz. 485, 493, ¶ 24 (1999).
“Substantial evidence is ‘such proof that reasonable persons could accept
as adequate and sufficient to support a conclusion of defendant’s guilt
beyond a reasonable doubt.’” Parker, 231 Ariz. at 407, ¶ 70 (citing State v.
West, 226 Ariz. 559, 562, ¶ 16 (2011)). We will reverse the trial court’s denial
of a motion for judgment of acquittal and the jury’s guilty verdict only
where “there is a complete absence of probative facts to support” the
conviction. State v. Johnson, 215 Ariz. 28, 29, ¶ 2 (App. 2007) (quoting State
v. Mauro, 159 Ariz. 186, 206 (1988)).
¶11 Pursuant to A.R.S. § 13-1508(A), “[a] person commits burglary
in the first degree if such person or an accomplice violates the provisions of
either section 13-1506 or 13-1507 and knowingly possesses explosives, a
deadly weapon or a dangerous instrument in the course of committing any
theft or any felony.” A.R.S. § 13-1508(A) (2010). A person commits a
burglary under A.R.S. § 13-1507(A) “by entering or remaining unlawfully
in or on a residential structure with the intent to commit any theft or any
felony therein.” A.R.S. § 13-1507(A) (2010). As alleged here, the State was
required to offer evidence that Bruno intended to commit aggravated
assault by “[i]ntentionally placing another person in reasonable
apprehension of imminent physical injury,”6 A.R.S. § 13-1203(A)(2) (2010),
by using “a deadly weapon or dangerous instrument.” A.R.S. § 13-
1204(A)(2) (Supp. 2016).
¶12 Bruno presents two arguments that the State did not present
sufficient evidence to convict him of first-degree burglary. First, he argues
there was insufficient evidence that he “enter[ed] or remain[ed]
unlawfully” in the trailer. See A.R.S. § 13-1507(A). Second, he contends
6 The State also charged Bruno with aggravated assault based on
“[i]ntentionally, knowingly or recklessly causing any physical injury to
another person.” A.R.S. § 13-1203(A)(1).
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STATE v. BRUNO
Decision of the Court
there was insufficient evidence that the trailer was a residential structure
for purposes of A.R.S. § 13-1507(A).
I. Unlawfully Entering or Remaining in a Structure
¶13 Contrary to common law, burglary under A.R.S. § 13-1507(A)
does not require breaking and entering a structure, but only that a person
unlawfully enter or remain in a structure. An unlawful entry occurs when
a person intentionally enters or remains in a structure where he “is not
licensed, authorized or otherwise privileged” to be. A.R.S. § 13-1501(2)
(Supp. 2016). Further, an unlawful entry may occur when a person has
permission to enter a structure, but such entry goes beyond the scope of the
permission granted. See State v. Van Dyke, 127 Ariz. 335, 336-37 (1980).
¶14 Here, Jason’s testimony provided substantial evidence on
which the jury could find Bruno did not have permission to enter the trailer.
Jason testified that he had permission from his mother to use the trailer, but
that he did not give Bruno permission to enter the trailer. Nothing in the
record suggests that Jason’s mother gave Bruno permission to enter the
trailer. However, even if Jason’s mother gave Bruno permission to enter
the trailer, there was substantial evidence from which a jury could conclude
that Bruno unlawfully exceeded the scope of that permission by entering
the trailer early in the morning, armed with a shotgun, while Sandra and
Jason were sleeping.
II. Residential Structure
¶15 A residential structure is “any structure, movable or
immovable, permanent or temporary, that is adapted for both human
residence and lodging whether occupied or not.” A.R.S. § 13-1501(11). See,
e.g., State v. Engram, 171 Ariz. 363, 366 (App. 1991) (finding that an
apartment building with only one unit leased that is undergoing renovation
may be considered a residential structure).
¶16 The State presented substantial evidence at trial from which a
jury could conclude that the trailer was a residential structure.7 Jason
7 Relying on State v. Bass, 184 Ariz. 543 (App. 1995), Bruno argues the
State presented insufficient evidence to convict him of burglary pursuant
to A.R.S. § 13-1507 because it failed to prove the trailer had plumbing and
electricity, which he contends is necessary for a structure to be considered
“residential” under A.R.S. § 13-1501(11). Bruno’s reliance on State v. Bass is
inapposite, however, because although State v. Bass discussed whether a
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STATE v. BRUNO
Decision of the Court
testified that he occasionally slept in the trailer, and both Jason and Sandra
testified that they slept in the trailer on January 16, 2016. Further, Jason
testified that the trailer had multiple beds, a kitchen, and a bathroom. The
State also submitted into evidence a photograph of the trailer’s interior
showing the sleeping and kitchen areas.
¶17 Based on the testimony and the admitted exhibits, a
reasonable jury could have found the trailer was a residential structure, and
that Bruno unlawfully entered the trailer or unlawfully remained in the
trailer. Thus, the State presented substantial evidence to support the jury’s
verdict, and the trial court properly denied Bruno’s Rule 20 motion for
acquittal.
CONCLUSION
¶18 Bruno’s conviction and sentence are affirmed.
AMY M. WOOD • Clerk of the Court
FILED: AA
cabin that was under construction, had not yet been certified for occupancy,
and had no working plumbing or electricity could be considered a
“residential structure,” it ultimately decided that was a question for the jury
to determine. Id. at 544-45.
6