Arizona DUI & Criminal Defense Attorney Blog
Just standing near a crime is not a crime. But a recent Arizona Court of Appeals ruling shows that the so-called “mere presence” defense has real limits — and that the standard burglary jury instructions may already cover it. The Law Office of James E. Novak defends burglary and theft cases across Maricopa County, and this decision shapes how those defenses play out in court. Learn more about your Arizona criminal defense options.
What Did the Arizona Court of Appeals Decide?
In State v. Aguirre, No. 1 CA-CR 25-0338, decided April 22, 2026, the Arizona Court of Appeals, Division One, affirmed a third-degree burglary conviction out of Maricopa County Superior Court. The defendant was caught on a Phoenix parking garage roof with two other men. One had a crowbar. Another had a bolt cutter. Cut copper wire was strewn nearby. He told officers he was hired to be a “lookout.”
On appeal, he argued the trial judge should have given the jury a “mere presence” instruction on its own — even though the defense never asked for one. The court rejected that argument and affirmed his 10-year prison sentence as a repeat offender.
The court held that when jurors are properly told the State must prove specific intent under A.R.S. § 13-1506 and A.R.S. § 13-301 (accomplice liability), a separate mere presence instruction is arguably redundant. No prior Arizona case has ever found this kind of omission to be fundamental error.
Why Does This Matter for Your Case?
If you were arrested at a crime scene where someone else committed the actual offense, this ruling matters. Mere presence — the idea that being near a crime does not make you guilty of it — is still good law in Arizona. But Aguirre makes one thing clear: the defense is not automatic, and judges do not have to spell it out unless your attorney asks.
That puts the pressure on your defense lawyer. If you are charged based on association — riding in a car, standing in a room, being on a roof — your attorney must request a mere presence instruction at trial. They must also weave the theme into opening statements, cross-examination, and closing argument. The defendant in Aguirre had that argument made for him in opening and closing. It still was not enough — because the State proved he carried bolt cutters and admitted his role as a lookout.
James Novak is a former Maricopa County prosecutor who now defends burglary, theft, and felony charges across Tempe, Mesa, Chandler, Gilbert, Scottsdale, and Phoenix. He knows how prosecutors build accomplice cases — and how to attack them before trial. If you are facing burglary or theft charges, review the firm’s theft and burglary defense practice.
How Does This Affect Burglary Charges in Arizona?
Third-degree burglary under A.R.S. § 13-1506 is a Class 4 felony. It applies when someone enters or remains unlawfully in a non-residential structure, fenced yard, or motor vehicle with intent to commit theft or any felony. The key word is intent. The State does not have to prove anything was actually stolen — just that the defendant planned to steal or commit a felony.
Under A.R.S. § 13-301, an accomplice — including a lookout — can be convicted of burglary even without setting foot inside the structure, so long as they aided the crime with intent to promote it. Cases like this often turn on technical evidence: surveillance footage, tools recovered at the scene, statements made to police. James Novak’s engineering background gives him a real advantage in challenging that kind of forensic and technical proof at Maricopa County Superior Court.
Frequently Asked Questions
Is the mere presence defense still good law in Arizona?
Yes. The Aguirre ruling did not abolish the defense. It held only that judges do not have to give the instruction on their own when the standard intent instructions already cover the issue. Your attorney should still request the instruction and argue the theme at trial.
Can I be charged with burglary if I was just a lookout?
Yes. Arizona’s accomplice statute treats a lookout the same as the person who entered the structure, as long as the State can prove intent to promote or aid the offense. Aguirre is a clear example.
Is the Aguirre opinion binding on other Arizona courts?
No. Aguirre is an unpublished memorandum decision. It is not precedential under Arizona Supreme Court Rule 111(c), but it can be cited as persuasive authority in similar cases.
Talk to a Maricopa County Criminal Defense Attorney
If you are facing burglary, theft, or any felony charge in Tempe, Mesa, Chandler, Gilbert, Scottsdale, or Phoenix, you need a defense attorney who understands how the prosecution builds — and loses — these cases. James Novak is a former prosecutor with four advanced degrees, including a J.D., an engineering degree, a counseling degree, and an MBA. Learn more about James Novak or call (480) 413-1499 for a free initial consultation. Available 24/7. Flat affordable fees, no hidden costs. You can also contact the firm online to schedule your consultation.