State v. Leon

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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 IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION ONE STATE OF ARIZONA, ) ) Appellee, ) ) v. ) ) JOAQUIN OTHON LEON, JR., ) ) Appellant. ) ) ) __________________________________) DIVISION ONE FILED: 02/08/2011 RUTH WILLINGHAM, ACTING CLERK BY: GH No. 1 CA-CR 09-0959 DEPARTMENT E MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-112591-001 DT The Honorable Lisa M. Roberts, Judge Pro Tempore AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section And Jeffrey L. Sparks, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Spencer D. Heffel, Deputy Public Defender Attorneys for Appellant Phoenix S W A N N, Judge ¶1 Joaquin Othon Leon, Jr., ( Defendant ) appeals from his conviction for Theft of Means of Transportation, a class 3 felony, on the ground that the trial court abused its discretion by refusing to instruct the jury on a lesser included charge and on Defendant s theory of the case. Because the requested instructions would not have been appropriate, we affirm. FACTS1 AND PROCEDURAL HISTORY ¶2 In December 2007, J.M. parked his school s silver-gray 1992 Toyota pickup truck in a lot owned by and in front of the school. Over the next few months, the truck s registration expired, and someone broke the passenger-side window and damaged the steering column. the broken window In response to the vandalism, J.M. covered with plastic and disabled the engine by removing a cable from it, in an attempt to prevent the truck from being stolen. On returning from vacation in June 2008, J.M. discovered the school s truck was missing. He reported it stolen to the police. ¶3 In November 2008, Phoenix Police Officer Ryan Phillips responded to a report of suspicious activity at a residential address. In the home s backyard, Phillips saw a dismantled maroon Toyota pickup truck. Phillips noticed that the truck had no license plate, and that the vehicle identification number ( VIN ) plates were missing from 1 the dash and door jamb. We view the facts in the light most favorable to sustaining the jury s verdict, resolving all reasonable inferences against the defendant. State v. Nihiser, 191 Ariz. 199, 201, 953 P.2d 1252, 1254 (App. 1997). 2 Phillips nonetheless managed to discover the truck s VIN, the license plate number registered to K.B. him to call registered to it, and that it was Phillips also obtained information that led Defendant, who said he owned the maroon truck. Phillips met Defendant and told him the truck was missing its VIN plates and license plate. Defendant claimed ignorance of this, and agreed to report that the VIN and license plates had been stolen. The license plate was later recovered, but the VIN plates were not. ¶4 On February 19, 2009, Phoenix Police Officer Timothy Tedesco pulled over a white Toyota pickup truck that bore the maroon truck s recovered license plate, because that license plate was linked to that truck s reportedly stolen VIN plates. Defendant was a passenger in the truck. ¶5 Phoenix Detective Rachael Rohkol came out to investigate, and discovered that the license plate and VIN plate belonged to the maroon pickup truck Defendant had claimed he owned, that the truck had been newly painted white, that the truck had previously been silver or gray, and that the VIN plate was not attached to the dashboard. Investigating further, Rohkol determined the white truck s actual VIN, which identified it as the silver-gray truck taken from the school. ¶6 According to Rohkol, when she interviewed Defendant, he said the white truck was the maroon truck repainted, and that 3 he owned it. However, Defendant later changed his story and admitted that the white truck was the school s truck, which he had taken because he thought it was abandoned and he wanted to rebuild it. abandoned Defendant then said that he did not apply for an vehicle title because it was too much trouble. Rohkol also testified that Defendant said the reportedly stolen VIN plate was on the school s truck because Defendant had replaced the school s truck s dashboard with that of the maroon truck, and said he put the maroon truck s license plate on the school s truck because his driver s license suspension prevented him from registering the school s truck. ¶7 However, Defendant testified at trial that he had never changed his story during his interview with Rohkol. He denied originally saying the school s truck was the maroon truck repainted, denied saying he had switched the dashboards, and denied having had any knowledge that the school s truck s VIN plate had been replaced with the maroon truck s. He admitted that he took the school s truck, testifying that he thought it was abandoned. ¶8 The State obtained an indictment charging Defendant with one count of Theft of Means of Transportation pursuant to A.R.S. § 13-1814(A)(5), a class 3 felony (Count 1), and one count of Conducting a Chop Shop pursuant to A.R.S. § 13-4702, a class 4 felony (Count 2). After a five-day trial, the jury 4 convicted Defendant of Count 1 but found him not guilty of Count 2. The trial court sentenced Defendant to 2 years unsupervised probation. Defendant timely appeals, and we have jurisdiction under A.R.S. §§ 12-120.21(A), 13-4032 and -4033. DISCUSSION ¶9 Defendant trial court instruction erred on raises in the two issues refusing lesser to included on give appeal: the offense whether requested for Count the jury 1 of Unlawful Use of Means of Transportation, and whether the court erred by not instructing the jury on Defendant s theory of the case. We review a trial court s refusal instruction for an abuse of discretion. to give a jury State v. Wall, 212 Ariz. 1, 3, ¶ 12, 126 P.3d 148, 150 (2006). I. ¶10 THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY REFUSING TO GIVE THE LESSER INCLUDED OFFENSE INSTRUCTION. Whether an offense is a lesser included offense is a question of law we review de novo. State v. Cheramie, 218 Ariz. 447, 448, ¶¶ 6-8, 189 P.3d 374, 375 (2008). The purpose of requiring a lesser included offense instruction is to reduce the risk of a jury convicting a defendant of a crime, even if all of its elements have not been proved, simply because the jury believes the defendant committed some crime. at 4, ¶ 16, 126 P.3d at 151. Wall, 212 Ariz. But the trial court is only required to give a lesser included offense instruction if the 5 evidence would allow a rational jury to find that the evidence is sufficient to support a conviction on the lesser offense. Id. at ¶ 18, 126 P.3d at 151. If the jury could only find the defendant guilty of the offense charged or completely innocent, depending on what evidence they believed, then included offense instruction is not required. the lesser State v. Bearup, 221 Ariz. 163, 170, ¶ 29, 211 P.3d 684, 691 (2009). ¶11 of Defendant was charged with committing theft of means transportation 1814(A)(5), which ( theft ) occurs in when violation without of lawful A.R.S. § 13- authority, [a] person knowingly . . . [c]ontrols another person's means of transportation property is knowing or reason Defendant stolen. having sought to an know that the instruction for unlawful use of means of transportation ( unlawful use ) under A.R.S. § 13-1803(A)(1), which occurs when without intent [to] permanently unauthorized deprive, [a] control person over . another . . knowingly person s means takes of transportation. ¶12 The phrase without intent to permanently deprive in the unlawful use statute does not describe an element of the crime which the state must prove. Without intent to permanently deprive is simply included unlawful use from theft. in the statute to distinguish State v. Kamai, 184 Ariz. 620, 622, 911 P.2d 626, 628 (App. 1995). 6 There are three elements to unlawful use - knowing control, the absence of authority, and means of transportation owned by another - and all are also elements of theft. See id. at 622, 911 P.2d at 628. Therefore, unlawful use is a lesser included offense to theft. ¶13 But our inquiry does not stop there: we must also determine whether there was sufficient evidence to support a conviction for unlawful use. P.3d at 151. Wall, 212 Ariz. at 4, ¶ 18, 126 For unlawful use, the evidence is sufficient if a properly instructed jury could conclude that the defendant did not intend to keep the [vehicle] permanently or for so long a time as to substantially decrease its value Kamai, 184 Ariz. at 624, 911 P.2d at 630. to the owner. Unlike in Kamai, where the truck involved was returned to the owner after a few days of unauthorized use, id. at 624, 911 P.2d at 630, Leon intentionally kept the school s truck for months, and does not contend that thought it he was intended to abandoned. properly instructed unlawful use. jury return On could Therefore, the it, this not but rather evidence, find trial a did he reasonable, Defendant court that guilty not err of by refusing to give the unlawful use instruction. II. ¶14 THE TRIAL COURT DID NOT ABUSE ITS DISCRETION BY REFUSING TO GIVE THE INSTRUCTION ON ABANDONMENT. Defendant asserts that the trial court abused its discretion by refusing to give an instruction on Defendant s 7 theory of the case. A defendant is entitled to an instruction on any theory reasonably supported by evidence. State v. Gomez, 211 Ariz. 494, 501, ¶ 30, 123 P.3d 1131, 1138 (2005). We find the trial court did not err in refusing to give the instruction. ¶15 Defendant s theory of the case was that his belief that the truck was abandoned would negate that he knew or had reason to know the truck was stolen. he sought instructions on sections pertain to abandoned vehicles. In support of this theory of A.R.S. Title 28 that However, Defendant s theory of the case is not reasonably supported by the evidence. ¶16 A vehicle is stolen if a person other than the owner 1) without lawful authority, 2) knowingly controls it, 3) with the intent to permanently deprive the owner of it. 1814(A)(1). A.R.S. § 13- Whether the vehicle was abandoned can only affect whether Defendant had lawful authority for his actions.2 ¶17 If a vehicle is abandoned on private property, a person has lawful authority to remove it only if they [o]btain written authorization from the owner or lessee of the property and submit that written authorization to the state motor vehicle registration department. A.R.S. § 28-4834(D). Additionally, [e]xcept if acting under the direction of a peace officer, a 2 Abandonment does not affect whether the vehicle still has an owner. See, e.g., A.R.S. § 28-4802(D) ( The department . . . [s]hall notify the owner of an abandoned vehicle . . . . ). 8 person who moves or tows a vehicle . . . on private property without the consent of the vehicle owner or the owner s agent shall notify the law enforcement agency of the jurisdiction where the vehicle was located before the moving or towing, or be guilty of a class 1 misdemeanor. ¶18 A.R.S. § 28-4836. Defendant admitted he removed the school s truck from private property. Defendant s testimony establishes that he did not obtain written authorization to remove the school s truck, and that he did not notify the police. Because he did not fulfill the statutory requirements, Defendant knew or had reason to know he lacked lawful authority to regardless of whether it was abandoned. remove the truck, Therefore Defendant s belief that the truck was abandoned had no bearing on whether he knew or had reason to know he had stolen it. Because the evidence does not support Defendant s theory of the case, the trial court did not err by refusing instruction. 9 to give the requested CONCLUSION ¶19 Because we find that the evidence does not support either of Defendant s requested jury instructions, we hold that the trial court did not abuse its discretion by refusing to give them. We therefore affirm. /s/ __________________________________ PETER B. SWANN, Judge CONCURRING: /s/ ____________________________________ PHILIP HALL, Presiding Judge /s/ ____________________________________ SHELDON H. WEISBERG, Judge 10

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