State v. Aguirre

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

BENJAMIN GUADALUPE AGUIRRE, Appellant.

No. 1 CA-CR 25-0338

FILED 04-22-2026

Appeal from the Superior Court in Maricopa County
No. CR2024-109995-001
The Honorable Christina Henderson, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph E. Begun
Counsel for Appellee

Law Office of Nicole Countryman, Phoenix
By Nicole Countryman
Counsel for Appellant
 STATE v. AGUIRRE
Decision of the Court

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Andrew J. Becke joined.

C A T T A N I, Judge:

¶1 Benjamin Aguirre appeals his conviction and sentence for
third-degree burglary, arguing that the superior court erred by failing to
sua sponte instruct the jury regarding “mere presence” at a crime scene.
We affirm.

FACTS AND PROCEDURAL BACKGROUND

¶2 On February 29, 2024, during the early morning hours, a
security analyst monitoring a surveillance camera saw three people on top
of a Phoenix parking garage. One of them had a crowbar in his hand and
was digging into a concrete barrier. A second person (later identified as
Aguirre) was holding a bolt cutter, and the third person had a duffel bag.
The security analyst called the Phoenix Police Department, which
immediately sent officers to the parking garage.

¶3 When the first officer arrived, he saw someone cutting copper
wire. Along the building’s perimeter, the officer also saw cut copper wire,
bolt cutters, a backpack, and a hammer. Another officer found Aguirre in
the staircase of the parking garage. Aguirre initially told the officer he had
not been on the roof, but he later admitted he had been there briefly. After
being arrested and advised of his Miranda1 rights, Aguirre stated that he
was offered money to act as a “lookout.”

¶4 Aguirre was charged with third-degree burglary, a class four
felony. After a jury trial, he was convicted as charged, and, because of his
prior criminal history, the court sentenced him as a category three repetitive
offender to 10 years’ imprisonment, with 282 days of presentence
incarceration credit. The court also ordered restitution of $7,690 for damage
to the parking garage.

1 Miranda v. Arizona, 384 U.S. 436, 468–69 (1966).

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¶5 Aguirre timely appealed, and we have jurisdiction under
A.R.S. § 13-4033(A)(1).

DISCUSSION

¶6 Aguirre’s sole argument on appeal is that the court erred by
not, sua sponte, instructing the jury on mere presence for the burglary
charge. Because Aguirre did not request such an instruction at trial, we
review for fundamental, prejudicial error. See Ariz. R. Crim. P. 21.3(b); State
v. Henderson, 210 Ariz. 561, 567, ¶¶ 19–20 (2005); State v. Escalante, 245 Ariz.
135, 142, ¶ 21 (2018). Fundamental error “takes away a right that is essential
to [the defendant’s] defense, and is of such magnitude that he could not
have received a fair trial.” Henderson, 210 Ariz. at 568, ¶ 24. As applicable
here, an error causes prejudice if the “jury could have plausibly and
intelligently returned a different verdict.” Escalante, 245 Ariz. at 144, ¶ 31.

¶7 The Revised Arizona Jury Instruction for “mere presence”
provides:

Guilt cannot be established by the defendant’s mere presence
at a crime scene, mere association with another person at a
crime scene or mere knowledge that a crime is being
committed. The fact that the defendant may have been
present, or knew that a crime was being committed, does not
in and of itself make the defendant guilty of the crime
charged. One who is merely present is a passive observer
who lacked criminal intent and did not participate in the
crime.

Rev. Ariz. Jury Instr. Stand. Crim. 43 (6th ed. 2022).

¶8 Aguirre does not point to any case in which a court has found
the failure to sua sponte instruct on “mere presence” to be fundamental
error, and we are unaware of any. When jurors are properly instructed on
the elements of burglary, which include an “intent to commit any theft or
any felony,” a “mere presence” instruction is arguably redundant. See
A.R.S. § 13-1506(A)(1). So too, when jurors are instructed on accomplice
liability, including that a defendant must have aided another “with the
intent to promote or facilitate the commission of an offense,” the express
intent requirement, again, arguably renders a “mere presence” instruction
redundant. See A.R.S. § 13-301(2).

¶9 Aguirre asserts that he was merely present at the garage and
that there was no evidence that he had the intent to steal. He argues that,

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had a “mere presence” instruction been given, the jurors would not have
found him guilty because they would have understood the difference
between a “passive observer” and an “active participant.”

¶10 Aguirre’s argument fails because the instructions given
correctly and adequately stated the law. See State v. Avila, 147 Ariz. 330, 337
(1985); see also State v. Brown, 258 Ariz. 270, 274, ¶ 17 (App. 2024). The jurors
were instructed (1) to start with the presumption Aguirre was innocent; (2)
that the State had the burden of proving each element of each charge
beyond a reasonable doubt; (3) on the required elements of burglary,
including the requirement that the defendant “enter[] or remain[]
unlawfully in or on a non-residential structure” “with the intent to commit
any theft or felony therein,” see A.R.S. § 13-1506(A)(1); and (4) on
accomplice liability, including that to be an accomplice, the defendant must,
“with the intent to promote or facilitate the commission of the offense, . . .
aid[], counsel[], agree[] to aid . . . another person in . . . committing the
offense,” see A.R.S. § 13-301(2).

¶11 Moreover, defense counsel told the jurors during his opening
statement that Aguirre did not deny being present at the scene, but “just
because you’re there, doesn’t automatically make you guilty of a crime.”
And during closing argument, defense counsel reiterated that “presence is
not participation.” That argument was consistent with the instructions
given, which made clear that the State was required to prove Aguirre
intended to commit burglary or aid someone committing burglary.

¶12 Because the instructions given correctly and adequately
stated the law, Aguirre has not established that failing to sua sponte instruct
the jury on mere presence resulted in fundamental, prejudicial error.

CONCLUSION

¶13 We affirm Aguirre’s conviction and sentence.

MATTHEW J. MARTIN • Clerk of the Court
FILED: JR

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