Crime of Possession of Burglary Tools Does Not Require Jury to Determine Which Tool was Actually Possessed

6/6/16  In State v.  Bruce Wayne O’Laughlin Jr, No. CR20140970001 5/9/16, the defendant was convicted in a jury trial of burglary and possession of burglary tools.  On appeal the defendant contended in two arguments he had been denied to his constitutionally guaranteed right to a unanimous jury verdict.  First, he argued that a count in the indictment for which he was convicted, and which alleged possession of burglary tools, in effect alleged two or more separate crimes.  Since possession of burglary tools can be committed using several kinds of tools (for example, flashlight, knife, gloves, etc.) and the crime could be committed by possessing each one separately.  Under his argument, if someone possessed all of those tools the person would be committing three separate crimes.  Therefore, if one count alleges two or more separate crimes, such as one crime, possession of a flashlight and another crime, possession of gloves, and the jury returned a verdict of guilty, some jurors could believe the defendant is guilty of possession of a flashlight and not guilty of possessing gloves and the other jurors could say guilty of possession of gloves but not guilty of possessing a flashlight.  All the jurors would say he is guilty but they would not say he is unanimously guilty of possessing a particular tool.  If each tool was a separate crime then he would not be unanimously guilty of the crime of possessing a particular tool.


In its ruling against the defendant the court of appeals made a distinction between a duplicitous count alleging two or more distinct crimes and a count which alleged one crime which could be committed different ways.


The court sought to explain the concept by referring to other cases:


¶7 Several recent duplicity cases illustrate that the distinction between a single-offense and multiple-offense statute often relies on the harm resulting from the crime. In Paredes-Solano, the defendant was charged with sexual exploitation of a minor under A.R.S. § 13-3553 arising from acts described in paragraphs (A)(1) and (A)(2) of that section. 223 Ariz. 284, ¶ 16, 222 P.3d at 906. The state regarded the acts as describing a single offense, arguing to the jury it did not have to differentiate between or agree on acts described in (A)(1) versus (A)(2). Id. ¶ 14. Based on statutory analysis and legislative history, we concluded the legislature separated (A)(1) and (A)(2) acts in order to create two separate offenses, albeit described in a single statute. Id. ¶¶ 9-15. Paragraph (A)(1) involves harm to a child by creating a sexually exploitive image, whereas (A)(2) involves perpetuating the harm by distributing the image. Id. ¶ 10. Because the jury was permitted and encouraged to reach non-unanimous decisions involving separate offenses that were charged in a single count, the defendant’s right to a unanimous verdict was violated. Id. ¶¶ 18, 22. That violation of a constitutional right constitute  fundamental and reversible error. Id. ¶ 22, citing Ariz. Const. art. II, § 23.


The court held the crime was the “possession” of burglary tools and so the particular burglary tool possessed was simply one means by which he committed the crime.  The court in effect said as long as all 8 jurors decided he possessed a burglary tool, it did not matter if some of the jurors said it was a flashlight and others said it was a knife because all eight would have said he had “possessed” burglary tool (s).


The defendant also made a second, alternative argument.  The count in the indictment read, the defendant possessed, —“flashlight, knife, gloves”.  The trial court wrote on the jury instructions that he possessed those items, “and/or”.  The defendant contended that under rules of grammar a list like that should be read as “and” and not “and/or”.  If true it meant that in order for the defendant to be found guilty the jury had to find unanimously that he possessed all three tools.  By adding the term “or” it meant that he could be found guilty if some of the jurors said he only possessed one tool but not the others and others could say he possessed the other two tools but not the first tool and, in short, were not unanimous on all three tools.  The court of appeals said that since the jury did not have to find unanimously that he possessed all three as described above, there was no problem with the trial judge using, “and/or” on the form of verdict.


The case may be found at:


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