114 Ariz. 331 (1977) 560 P.2d 1238 STATE of Arizona, Appellee, v. Richard Amine RODRIGUEZ, Appellant. No. 3636. Supreme Court of Arizona, In Banc. February 18, 1977. *332 Bruce E. Babbitt, Atty. Gen., William J. Schafer, III, Chief Counsel, Crim. Div., Crane McClennen, Asst. Atty. Gen., Phoenix, for appellee. Ross P. Lee, Maricopa County Public Defender, Paul J. Prato, Deputy Public Defender, Phoenix, for appellant. GORDON, Justice: Appellant, Richard Amine Rodriguez, and co-defendant Keith Edward Cook (not a party to this appeal) were each convicted of burglary, second degree, in violation of A.R.S. § 13-302, involving a dwelling in Tempe, Arizona. This conviction served as the basis for the revocation of two separate and unrelated suspended sentences and probations for drug felony charges that were then pending against appellant. He was sentenced to not less than four and not more than five years in prison on the burglary charge and the same sentence on each revoked probation, with all three sentences to run concurrently. The revocations of the suspended sentences are not involved in this appeal. We have assumed jurisdiction pursuant to 17A A.R.S. Supreme Court Rules, Rule 47(e). The only question urged by appellant on appeal is whether the instructions given permitted the jury to presume that the specific intent to commit theft or a felony existed in appellant's mind when he entered the dwelling. We find that they did not and affirm appellant's conviction for burglary, second degree. A few days prior to July 30, 1975 Dr. Federis and his family had locked up their home at 1818 Main Street, Tempe, Arizona and left for a vacation. (We are using a fictitious street name.) Neighbors, Clarence and Lugenia Vorwerk agreed to keep an eye on the Federis' home. In the midmorning of July 30, 1975 Lugenia Vorwerk, looking out her bedroom window, saw appellant and Cook drive up into the Federis' driveway, ring the doorbell, and after no one answered go around into the backyard. As she did not know appellant or his companion, Mrs. Vorwerk called the police. Rodriguez and Cook apparently gained entry into the home by manipulating the lock in the sliding glass arcadia door in the back of the dwelling and were arrested in the family room of the house shortly thereafter. When Rodriguez and Cook were arrested, dresser drawers, closet doors, cabinets throughout the house were standing open and a cassette tape recorder with AM and FM radio, calculator and an AC electrical adaptor were found in the shower stall in the bathroom off the master bedroom. An earring, similar to one found on the floor of the bedroom was found in appellant's pocket. Rodriguez and Cook's explanation for their presence in the dwelling was that Rodriguez had driven Cook to this house thinking it was the home of one Ken Adams, Cook's friend, whom Cook wanted to ask for a ride to the Arizona State University Campus, where he and Adams worked. (Adams' home was later determined to be located at 1858 …
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