In Re the Appeal in Maricopa County, Juvenile Action No. J-75755

521 P.2d 641, 21 Ariz. App. 542

• Court: Court of Appeals of Arizona
• Decided: May 21, 1974
• Docket: 1 CA-JUV 13
• Status: Published

Opinions

OPINION

JACOBSON, Chief Judge,

Division 1.

This appeal requires the court to determine if criminal trespass is a lessep-includ-ed offense of burglary, the juvenile having been charged with burglary, but found delinquent on the basis of trespass.

The juvenile was charged in a petition with petty theft and burglary. At the adjudicatory hearing the court granted a motion for a directed verdict as to the charge of petty theft.

The charging portion of the petition for delinquency concerning burglary was in the following language:

“On or about March 30, 1973, did commit burglary of the dwelling house of Lydia Gonzales, located at or near 7443 W. Devonshire in the City of Phoenix, Maricopa County, Arizona, all in violation of A.R.S. §§ 13-301, 13-302, as amended 1969, 13-138, 13-139 and 13-140.”

After the close of the defendant’s case, the court found that there was no burglary, but nonetheless found that there was sufficient evidence to support a charge of “trespass” and accordingly adjudicated the juvenile delinquent.

The sole issue on this appeal is whether trespass as defined by A.R.S. § 13-712(9) ¹ is a lesser included offense in the charge of burglary (A.R.S. § 13-302). This issue is presented because it is the general rule that an accused may be convicted of an offense different from that with which he was charged only if it is included in the offense charged. State v. Parsons, 70 Ariz. 399, 222 P.2d 637 (1950); Peterson v. Jacobson, 2 Ariz.App. 593, 411 P.2d 31 (1966). Such a conviction for a different offense than the one charged may occur under two different circumstances: (1) where the included offense is by its very nature always a constituent part of the major offense charged, or (2) where the terms of the charging document (indictment, or information or in the case of a juvenile, the petition for delinquency) describe the lesser offense, even though such lesser offense would not always form a consitutent part of the major offense charged. State v. Woody, 108 Ariz. 284, 496 P.2d 584 (1972); 42 C.J.S. Indictments and Information § 272, p. 1295.

Since the petition for delinquency in this case did not present factual allegations concerning the conduct of the juvenile, we are left with the determination of whether the act of trespass as defined in A.R.S. § 13-712(9) is in its nature always a constituent part of the crime of burglary as defined in A.R.S. § 13-302. The test to be applied is stated in State v. Woody, supra:

“The test for determining whether one offense is included in another offense is whether the first offense cannot be committed without necessarily committing the second.” 108 Ariz. at 287, 496 P.2d at 587. (Emphasis added.)

A similar test has been stated by the California court in the case of People v. Whit-low, 113 Cal.App.2d 804, 249 P.2d 35 (1952):

“If, in the commission of acts made unlawful by one statute, the offender must always violate another, the one offense is necessarily included in the other. [Citation ommitted]. Thus, before a lesser offense can be said to constitute a necessary part of a greater offense, all the legal ingredients of the corpus delicti of the lesser offense must be included in the elements of the greater offense, [Citation omitted]. It therefore follows that if an element necessary to establish the corpus delicti of the lesser offense is irrelevant to the proof of the greater offense, the lesser cannot be held to be a necessarily included offense.” 249 P.2d at 37. (Emphasis added.)

With these tests in mind, the statutes involved are as follows.

A.R.S. § 13-712(9) provides that a trespass is committed by:

“Loitering or prowling upon the private property of another, without the consent of or lawful business zvith the owner or occupant thereof.” (Emphasis supplied.)

Burglary is defined by A.R.S. § 13-302(A) as:

“. . . entering a building . . . with intent to commit grand or petty theft, or any felony . . . .” (Emphasis supplied.)

The word “loiter[ing]” has been defined in State v. Gomez, 105 Ariz. 424, 466 P.2d 378 (1970) as meaning “[t]o be dilatory; to be slow in movement; to stand around or move slowly about; to stand idly around; to spend time idly; to saunter; to delay; to idle; to linger; to lag behind.” This same case defines “prowl[ing]” as “[t]o move about or wander stealthily; as a wild beast seeking prey; to pace or roam about furtively.”

From our review of the facts in this case, we do not believe that the juvenile’s conduct on the premises in question can be considered as “prowling” as that word has been defined. Sidestepping the constitutional issue of vagueness involved in making criminal acts involving “spend[ing] time idly” or “saunter[ing]” or “standing] idly around” private property without consent (see: Ricks v. District of Columbia, 134 U.S.App.D.C. 201, 414 F.2d 1097 (1968); City of Portland v. White, 9 Or.App. 239, 495 P.2d 778 (1972); Hayes v. Municipal Court of Oklahoma City, 487 P.2d 974 (Okl.Cr.1971); and State v. Grahovac, 52 Haw. 527, 556, 480 P.2d 148 (1971)), we hold that whatever these acts constituting “loitering” are, the crime of burglary can be committed without engaging in them. For example, the individual who enters a business establishment with intent to commit grand or petty theft, and does so, can be charged with burglary, but not A.R.S. § 13-712(9) trespass, for his entry upon the premises open for business is with the implied consent of the owner that all the public is welcome in his business establishment. In short, the crime of burglary, (the greater) under numerous circumstances may be committed without committing a § 13-712(9) trespass (the lesser) and therefore, is not a lesser included offense of that crime.

The dissent in this matter is based upon the premise that under certain factual situations, while the crime of burglary is being committed, the crime of criminal trespass may also be committed, and thus that under certain circumstances criminal trespass can be a lesser included offense of burglary. We agree that if the factual allegations of the petition had set forth the facts constituting criminal trespass committed by the defendant as well as burglary, we would hold, under the general rule concerning convictions for lesser offenses, that a conviction for criminal trespass would stand in this case. However, such facts were not alleged here. To follow the dissent to its logical conclusion would result in the possibility of a person charged with murder being convicted of burglary, because factual settings can be imagined in which the commission of murder could also include the factual acts necessary to the commission of burglary.

Since the delinquent act which he was found to have committed is not a lesser included offense within that alleged, the adjudication of delinquency cannot stand on grounds of due process. Thornhill v. Alabama, 310 U.S. 88, 60 S.Ct. 736, 84 L.Ed. 1093 (1940); DeJonge v. Oregon, 299 U.S. 353, 57 S.Ct. 255; 81 L.Ed. 278 (1937); also see People v. Harris, 191 Cal.App.2d 754, 12 Cal.Rptr. 916 (1961). In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967).

For the reasons herein stated, the adjudication of the juvenile as a delinquent on the grounds that he committed a trespass is reversed.

HAIRE, P. J., concurs.

1 . Arizona has several statutory forms of “trespass”. However, the only definition of trespass which the juvenile’s conduct could possibly come within is found in A.R.S. § 13-712 (9). Since the juvenile court did not state wliich statutory definition of trespass he was relying upon, and since counsel did not question the propriety of the juvenile court’s failure to distinguish, we will assume he referred to A.R.S. § 13-712(9).