from the Superior Court in Pima County No. CR20144529001 The
Honorable Scott Rash, Judge.
Brnovich, Arizona Attorney General Joseph T. Maziarz, Section
Chief Counsel, Phoenix By Colby Mills, Assistant Attorney
General, Phoenix Counsel for Appellee.
Brault, Pima County Legal Defender By Robb P. Holmes,
Assistant Legal Defender, Tucson Counsel for Appellant.
Espinosa authored the opinion of the Court, in which
Presiding Judge Howard and Judge Staring concurred.
After a jury trial, convicted sex offender Lynn Lavern Burbey
was found guilty of failing to report his change of address
in violation of A.R.S. § 13-3822(A). On appeal, he
argues the trial court erroneously instructed the jury both
on his obligation to report his whereabouts and his intent to
commit the offense, violating his due process rights and
requiring that his conviction be vacated. Because we conclude
the jury instructions accurately stated the law as to the
reporting obligation § 13-3822(A) imposes on sex
offenders who become homeless, and because no fundamental
error resulted from the lack of a mens rea instruction, we
and Procedural Background
We view the facts in the light most favorable to sustaining
the jury's verdict. State v. Dann, 205 Ariz.
557, n.1, 74 P.3d 231, 236 n.1 (2003). Upon his
release from prison in an unrelated matter, Burbey registered
as a sex offender with the Pima County Sheriffs Office
pursuant to the requirements of A.R.S. § 13-3821. Burbey
listed as his address the halfway house in Tucson where he
resided while he completed his term of community supervision.
After his discharge from the halfway house five months later,
Burbey became homeless. He did not notify the sheriffs
department after leaving the halfway house, nor did he update
his residential status as a transient, within seventy-two
hours as provided by § 13-3822(A).
In October 2014 a Tucson Police Department officer questioned
Burbey outside a convenience store. Burbey informed the
officer he was homeless and living in the area, and admitted
he had not yet reported his change of residence as required.
Several days later Burbey was again contacted by a Tucson
police detective, at which time he again acknowledged knowing
that he needed to report his change in residential status and
that he still had not done so. Burbey was arrested and
subsequently indicted for failing to give notice of a change
of address, a class four felony in violation of §
At trial, the jury heard evidence from the Pima County
Sheriffs Department employee who had registered Burbey upon
his release from prison, the officer who had spoken with him
outside the convenience store in October 2014, and the
detective who had arrested him several days later. Burbey did
not introduce any evidence, but argued in closing that
despite his admissions about failing to notify the sheriffs
department after he left the halfway house, he had complied
with the requirements of the statute by informing the
officers he came in contact with that he was homeless and
living in the area. Burbey was convicted as noted above and
sentenced to a mitigated seven-year prison term. We have
jurisdiction over his appeal pursuant to A.R.S. §§
12-120.21 (A)(1), 13-4031, and 13-4033(A)(1).
Section 13-3822(A) requires registered sex offenders, within
seventy-two hours of "moving from the person's
residence, " to "inform the sheriff in person and
in writing of the person's new residence [or]
address." The statute also imposes on individuals
without permanent residences a duty to register with the
sheriff "as a transient not less than every ninety
days." Id. Because Burbey became homeless when he
left the halfway house and had no residence or "new
mailing address to register with the sheriff, " he
argues he was only obliged to register as a transient every
ninety days. The trial court, however, instructed the jury
that registered sex offenders must report a change of
residence within seventy-two hours, which Burbey argues was a
misstatement of the law constituting fundamental error.
state initially argues that, because Burbey requested the
instruction he now contests, he invited the error and may not
challenge the instruction on appeal. See, e.g.,
State v. Logan, 200 Ariz. 564, ¶ 9, 30 P.3d
631, 632-33 (2001) (noting appellate courts will not find
reversible error where complaining party invited the error).
Both Burbey and the state submitted alternative jury
instructions regarding the elements of the offense, and the
trial court incorporated elements of each into the
instruction it read to the jury. Because the portion of the
instruction Burbey challenges was requested by the state, we
conclude Burbey did not invite the error. See id.
¶ 11 (noting purpose of invited error doctrine is to
prevent a party from injecting error in the record and
profiting from it on appeal); State v. Thues, 203
Ariz. 339, n.2, 54 P.3d 368, 369 n.2 (App. 2002) (refusing to
apply invited error doctrine where record did not reflect
which party proposed stipulation which was source of error);
cf. Gaston v. Hunter, 121 Ariz. 33, 41, 588 P.2d
326, 334 (App. 1978) (finding acceptance of ruling with
"uncharacteristic acquiescence and meekness" did
not rise to the level of invited error). Burbey's
acquiescence to the jury instruction, however, requires that
we review only for fundamental error. See State v.
Dann, 220 Ariz. 351, ¶ 51, 207 P.3d 604, 617 (2009)