State v. Hendrix

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

TYRE JIMON HENDRIX, Appellant.

No. 1 CA-CR 24-0568
FILED 07-15-2025

Appeal from the Superior Court in Mohave County
No. S8015CR202301106
The Honorable Billy K. Sipe, Judge Pro Tempore

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Phillip A. Tomas
Counsel for Appellee

Mohave County Public Defender’s Office, Kingman
By Ross S. Carponelli
Counsel for Appellant
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Decision of the Court

MEMORANDUM DECISION

Judge Samuel A. Thumma delivered the decision of the Court, in which
Presiding Judge Kent E. Cattani and Judge Angela K. Paton joined.

T H U M M A, Judge:

¶1 Defendant Tyre Jimon Hendrix challenges his conviction and
resulting sentence for burglary, arguing his actions were justified by
necessity and the court erred by not instructing the jury on criminal trespass
as a lesser-included offense. Because Hendrix has shown no error, his
conviction and sentence are affirmed.

FACTS AND PROCEDURAL HISTORY

¶2 On June 10, 2023, footage from security cameras captured a
man kicking in and shattering the glass door of a home in Mohave County;
entering the home holding something resembling a weapon; ransacking the
pantry, kitchen, living room, bedrooms and bathroom; and stating “if I find
70 bucks, I’ll leave right now. I promise you that.” At the time, the victim
homeowners were camping remotely. Days later, when the victims
regained cell service, they received a notification of the incident and
notified the police. The victims provided a list of items stolen from the home
and a shirt that was left at the home, which was similar to the distinct shirt
worn by the man in the footage. The police collected fingerprints, which
matched Hendrix’ fingerprints. Hendrix was indicted for one count of
burglary in the second degree, a Class 3 felony, with the State alleging
aggravating circumstances.

¶3 Hendrix’ notice of defenses included justification. In the
notice, his police interview and at trial, Hendrix claimed he was looking for
help and shelter from the heat and that he only took bottles of water and
popsicles.

¶4 Hendrix filed a motion for the superior court to instruct the
jury on a lesser-included offense of criminal trespass and repeated the
request at trial. The court, however, denied the request, stating “[t]he case
law in Arizona is clear and consistent that trespass is not a lesser-included
offense of burglary.” The final jury instructions given did not include
criminal trespass as a lesser-included offense.

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Decision of the Court

¶5 The jury found Hendrix guilty as charged, also finding three
aggravating circumstances. Given his prior criminal history, and the
aggravating circumstances, the court sentenced Hendrix to an 18 year
prison sentence. Hendrix timely filed a notice of appeal. This court has
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution,
and Arizona Revised Statutes (A.R.S.) sections 12-120.21, 13-4031 and 13-
4033(A) (2025).1

DISCUSSION

I. Sufficient Trial Evidence Supports the Burglary Conviction.

¶6 Hendrix notes, in passing, that “[t]he evidence presented at
trial was sufficient to prove [he] knew he was not allowed on the victim’s
property yet was justified by entering the home out of necessity.” Hendrix
has waived this argument by failing to develop it. See State v. Sanchez, 200
Ariz. 163, 166 ¶ 8 (App. 2001). The record also contains “substantial
evidence support[ing] the jury’s verdict, viewing the facts in the light most
favorable to sustaining the jury verdict.” State v. Crain, 250 Ariz. 387, 399 ¶
50 (2021) (citations omitted). Hendrix admits he knew he was not allowed
on the property. There is also sufficient evidence that Hendrix entered the
home with the intent to commit a theft, meaning the jury properly could
have rejected his necessity defense. Sufficient trial evidence supports the
burglary conviction.

II. Hendrix has Shown no Instructional Error.

¶7 Hendrix argues the superior court erred in refusing to give
his requested trespass jury instruction as a lesser-included offense of
burglary. 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 [that] offense.” State v. Gonzales, 221
Ariz. 82, 84 ¶ 8 (App. 2009) (citations omitted). This court reviews de novo
whether it was error to refuse to give a requested lesser-included offense
jury instruction. State v. Lua, 237 Ariz. 301, 303 ¶ 5 (2015) (citing cases).

¶8 In determining whether a defendant is entitled to a lesser-
included offense instruction, Arizona applies the “same-elements test,”
which considers “whether each provision requires proof of a fact which the
other does not.” State v. Agueda, 253 Ariz. 388, 390 ¶¶ 12–13 (2022) (quoting
Blockburger v. United States, 284 U.S. 299, 304 (1932)). Under this test, “[a]

1 Absent material revisions after the relevant dates, statutes and rules cited

refer to the current version unless otherwise indicated.

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lesser-included offense is one composed solely of some but not all of the
elements of the greater crime so that it is impossible to have committed the
crime charged without having committed the lesser one.” State v. Lua, 237
Ariz. 301, 303 ¶ 7 (2015) (citation omitted). Comparing the statutory
definitions of burglary and criminal trespass shows that the latter is not a
lesser-included offense of the former.

¶9 As applicable here, a person commits burglary in the second
degree by “[e]ntering 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). By contrast, a person commits criminal trespass in the second
degree by “knowingly entering or remaining unlawfully in or on any
nonresidential structure or in any fenced commercial yard.” A.R.S. § 13-
1503(A). “Arizona courts have consistently held that criminal trespass is not
a lesser-included offense of burglary.” State v. Kozan, 146 Ariz. 427, 429
(App. 1985) (citations omitted); see also State v. Lewis, 236 Ariz. 336, 347 ¶ 48
(App. 2014).

¶10 Citing a Tennessee Supreme Court case, State v. Terry, 118
S.W.3d 355 (Tenn. 2003), Hendrix asks this court to adopt Tennessee’s
“lesser kind of culpability” test, arguing Arizona’s Blockburger test
“conflicts with the 2015 holding in Lua.” But Arizona’s same-elements test,
based on Blockburger and reflected in Lua and Agueda, does not include
Tennessee’s “lesser kind of culpability” test. This binding Arizona
precedent requires this court to apply the same-elements test. See State v.
Sullivan, 205 Ariz. 285, 288 ¶ 15 (App. 2003).

¶11 Hendrix also argues “[t]he legislature has agreed that the
consequences are less serious to unlawfully enter someone else’s yard or
structure and remain therein as opposed to intentionally commit a theft or
felony within.” That argument, however, does not address whether
trespass is a lesser-included offense of burglary. Indeed, there are many
offenses that are “less serious” than other offenses, but that fact does not
mean the less serious offense is a lesser-included offense of a more serious
offense.

¶12 Hendrix next argues that “burglary in the second degree and
criminal trespass in the first degree” each stem “from the circumstance in
which a criminal defendant is knowingly unlawfully present in or on the
residential yard of another, despite a lack of permission to be there.” But,
as the Arizona Supreme Court concluded decades ago, it is possible to
commit burglary without committing criminal trespass, meaning criminal
trespass is not a lesser-included offense of burglary. See State v. Malloy, 131

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Ariz. 125, 130–31 (1981) (“’knowingly’ as used in the criminal trespass
statute must have some additional meaning . . . ‘entering or remaining
unlawfully’ is not modified by the term ‘knowingly’, in order to convict a
defendant of burglary in the third degree.”).

¶13 Hendrix also argues that the superior court acknowledged an
instruction on trespass “was proper” by stating “the request for [] trespass
is because the defense would be the defendant did in fact enter and remain
unlawfully in the victims’ residence, however he had no intent to commit a
theft or felony therein, therefore it’s not a burglary, it’s only a trespass.” But
the court’s statement was to explain that:

If the jury determines the defendant did not
have the specific intent to commit a theft or
felony when he was in the residence, then they
would have to find him not guilty of burglary
anyway. So it may not be in the defendant’s best
interest to have trespass lesser included,
because it’s prison anyway if he gets convicted.

Because trespass is not a lesser-included offense of burglary, Hendrix was
not entitled to a trespass jury instruction. Lewis, 236 Ariz. at 347 ¶ 46. Nor
has Hendrix shown that the refusal to give a jury instruction on trespass “is
a fundamental violation of the right of due process.” Accordingly, Hendrix
has shown no error.

CONCLUSION

¶14 Hendrix’ conviction and resulting sentence are affirmed.

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

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