State v. Aguirre

── State v. Aguirre ── Court: Court of Appeals of Arizona Date: April 22, 2026 Category: General 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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.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). 2  STATE v. AGUIRRE Decision of the Court ¶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,