Opinion
No. 1 CA-CR 12-0209
01-29-2013
STATE OF ARIZONA, Appellee, v. KYLE WILLIAM KELLOWAY, Appellant.
White Law Offices, PLLC By Wendy F. White Attorneys for Appellant Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel/Capital Litigation Section and Joseph T. Maziarz, Section Chief Counsel Attorneys for Appellee
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Yavapai County
Cause No. V1300CR201180477
The Honorable Michael R. Bluff, Judge
AFFIRMED
White Law Offices, PLLC
By Wendy F. White
Attorneys for Appellant
Flagstaff Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel/Capital
Litigation Section
and Joseph T. Maziarz, Section Chief Counsel
Attorneys for Appellee
Phoenix KESSLER, Judge ¶1 Kyle William Kelloway ("Kelloway") appeals his conviction for destruction of or injury to a public jail, a class 5 felony, pursuant to Arizona Revised Statutes ("A.R.S.") section 31-130 (2002), arguing that the evidence was insufficient to support the jury's verdict. For the following reasons, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Kelloway was arrested and transported to the Cottonwood Police Department and placed in a holding cell by himself. While in the cell, he heard a beeping noise that he believed was coming from the smoke detector on the ceiling. Although Kelloway was handcuffed, Kelloway reached up and removed the small wire cage that was protecting the smoke detector and then he unplugged and removed part of the smoke detector which was connected to the fire alarm system. A trouble signal alerted jail personnel that there was a problem with the smoke detector, and when they went to check it they found Kelloway and the disabled smoke detector. ¶3 A repairman from the security company that maintains the system arrived and determined that the smoke detector had become separated from the base, and that the wire cage protecting the device had been "pulled down." The tabs that secured the cage to the ceiling were bent. Neither the smoke detector itself nor the wire cage was broken, but the system was rendered inoperable in Kelloway's cell. The system was repaired for $106.84 by re-seating the smoke detector head to the base, straightening the bent tabs on the wire cage, and re-screwing the tabs back into the ceiling. ¶4 Kelloway was charged with six felony counts and two misdemeanor counts. At trial, Kelloway admitted that he "kept hearing a beeping sound" so he "pulled the little cage to the side" and "pulled the little smoke alarm down" to see if the alarm had a battery, then "tried to [put] it back up there," but he was "too shaky and [he] didn't want to jam it." Kelloway was convicted of Count VI for the destruction of or injury to a public jail, sentenced to five years in prison, and ordered to pay restitution in the amount of $106.84. ¶5 Kelloway timely appealed. We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1) (2003), 13-4031 (2010), and -4033(A)(1) (2010).
The misdemeanor counts were dismissed with prejudice. The court dismissed Count I upon Kelloway's motion pursuant to Rule 20 of the Arizona Rules of Criminal Procedure. A jury found Kelloway not guilty of Counts II through V.
During his testimony, Kelloway admitted the thirteen prior felony convictions that the State alleged against him.
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DISCUSSION
¶6 Kelloway asserts that although he pulled down the smoke detector, "[t]here [is] no evidence that he injured the smoke detector itself" and that "all he did was unplug it and all that was needed to reconnect it was to plug it back in." He contends that "unplugging the smoke detector, like unplugging a lamp or removing a light bulb, does not constitute, breaking, pulling down, or otherwise injuring or destroying a public jail" as defined by the statute. He asserts that although the tabs holding the wire cage to the ceiling were slightly bent, "the cage is not an integral part of the smoke detector and the smoke detector operates equally well with or without the cage." ¶7 The State maintains that there is sufficient evidence to support the conviction because Kelloway's "actions disabled, not only the smoke detector in his cell, but also the entire alarm system in the holding facility" and he "pulled a fixture (the metal cage) out of the cement ceiling of the jail cell, thereby 'injuring' the jail." ¶8 Section 31-130 states:
A person who intentionally and without lawful authority breaks, pulls down or otherwise destroys or injures a public jail or other place of confinement is guilty of a class 5 felony.¶9 Kelloway states that the jury was instructed in accordance with State v. Mathews, 130 Ariz. 46, 48, 633 P.2d 1039, 1041 (App. 1981), that the definition of the word "injure" means "to impair the soundness of." He also argues that according to www.thefreedictionary.com, to "pull down" means "to demolish or destroy" and the evidence did not establish that he demolished, destroyed, broke or "impaired the soundness of" a public jail. ¶10 In Mathews, this Court stated that the ordinary meaning of "injure" is "to impair the soundness of." 130 Ariz. at 48, 633 P.2d at 1041. There is sufficient evidence for reasonable jurors to conclude that Kelloway intentionally impaired the soundness of the jail's fire safety system, thereby injuring a public jail. Kelloway testified that he intentionally moved the wire cage and removed the smoke detector from the ceiling to look for a battery. Testimony also established that by doing so, Kelloway rendered the fire safety system inoperable and it required reassembly in order to work properly. Thus, there is sufficient evidence to support his conviction for injuring a public jail. ¶11 To the extent Kelloway contends that the evidence did not establish that he demolished or destroyed the fire safety system, we agree. However, the statute states "breaks, pulls down or otherwise destroys or injures." A.R.S. § 31-130 (emphasis added). The statute does not require a determination that Kelloway broke, destroyed, or demolished anything, but only that he injured a public jail by impairing its soundness. As discussed above, rendering the fire safety system inoperable necessitating repairs establishes that Kelloway impaired the soundness of the system and injured a public jail.
CONCLUSION
¶12 The evidence is sufficient to support Kelloway's conviction of destruction of or injury to a public jail pursuant to A.R.S. § 31-130. For the foregoing reasons, we affirm Kelloway's conviction and sentence.
______________________
DONN KESSLER, Judge
CONCURRING: ______________________
JOHN C. GEMMILL, Presiding Judge
______________________
JON W. THOMPSON, Judge