State v. Lewis

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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. ) ) STEVEN ALLEN LEWIS, ) ) Appellant. ) ) __________________________________) DIVISION ONE FILED: 06/09/2011 RUTH A. WILLINGHAM, CLERK BY: DLL No. 1 CA-CR 10-0769 DEPARTMENT B MEMORANDUM DECISION (Not for Publication Rule 111, Rules of the Arizona Supreme Court) Appeal from the Superior Court in Maricopa County Cause No. CR2009-108658-001SE The Honorable Kristin C. Hoffman, Judge AFFIRMED Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section Barbara A. Bailey, Assistant Attorney General Attorneys for Appellee Phoenix James J. Haas, Maricopa County Public Defender By Margaret M. Green, Deputy Public Defender Attorneys for Appellant Phoenix B A R K E R, Judge ¶1 Steven Allen Lewis ( Lewis ) was charged by information with theft of means of transportation and attempt to traffic in stolen property stemming from the theft and attempted sale of a dune buggy. A jury found Lewis guilty as charged and further found the offenses were committed for pecuniary gain and while on release. felony At sentencing, Lewis admitted to three prior convictions, repetitive offender and the to trial court concurrent sentenced presumptive him as terms a of imprisonment of 8.5 years on the theft charge and 6.5 years on the trafficking jurisdiction charge. under Article Lewis timely appealed. VI, Section 9, of We the have Arizona Constitution, and Arizona Revised Statutes ( A.R.S. ) sections 12-120.21(A)(1), 13-4031, and 13-4033(A)(2010). ¶2 Lewis argues that the trial court erred in denying his motion for judgment of acquittal on the charge of theft of means of transportation. Specifically, Lewis contends the State failed to prove that the stolen dune buggy was a vehicle under Arizona law. We review a trial court s denial of a motion for judgment of acquittal for an abuse of discretion. State v. McCurdy, 216 Ariz. 567, 573, ¶ 14, 169 P.3d 931, 937 (App. 2007). State We review issues of statutory interpretation de novo. v. Peek, 219 Ariz. 182, (2008). 2 183, ¶ 6, 195 P.3d 641, 642 ¶3 occurs Reversible only evidence if to error there support based is the a on insufficiency complete conviction. absence State of of v. evidence substantial Sullivan, 187 Ariz. 599, 603, 931 P.2d 1109, 1113 (App. 1996); see also Ariz. R. Crim. P. 20(a) (requiring trial court to enter judgment of acquittal if conviction ). there is no substantial evidence to warrant a Substantial evidence is proof that reasonable persons could accept as sufficient to support a conclusion of a defendant s guilt beyond a reasonable doubt. State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996). In reviewing a claim of insufficient evidence, we construe the evidence in the light most favorable to sustaining the verdicts and resolve all reasonable inferences against the defendant. State v. Greene, 192 Ariz. 431, 436, ¶ 12, 967 P.2d 106, 111 (1998). ¶4 A person transportation if commits that the offense person of knowingly, theft and of means without of lawful authority, [c]ontrols another person s means of transportation knowing or having reason to know that the property is stolen. A.R.S. § 13-1814(A)(5) (2010). 1 defined as any vehicle. Means of transportation is A.R.S. § 13-1801(A)(9). 1 A vehicle We apply the substantive law in effect when the offense was committed. See A.R.S. § 1-246 (2002); State v. Newton, 200 Ariz. 1, 2, ¶ 3, 21 P.3d 387, 388 (2001). Absent material revisions after the date of an offense, we cite the statute s current version. 3 is in turn defined as a device in, upon or by which any person or property is, may be or could have been transported or drawn upon a highway, waterway or airway, excepting devices moved by human power or used exclusively upon stationary rails or tracks. A.R.S. § 13-105(40). ¶5 In construing a statute, our analysis begins and ends with its plain language if it is unambiguous. State v. Streck, 221 Ariz. 306, 307, ¶ 7, 211 P.3d 1290, 1291 (App. 2009). In Streck, we held a tractor clearly falls within the definition of vehicle. Id. at 308, ¶ 8, 211 P.3d at 1292. Prior to Streck, we concluded this definition also clearly includes golf carts. In re Adam P., 201 Ariz. 289, 291, ¶ 10, 34 P.3d 398, 400 (App. 2001). Like both a tractor and a golf cart, a dune buggy is a motorized device that can transport a person. And though dune buggies, like tractors and golf carts, are designed for off-road use, they can and have been driven on highways. See, e.g. Spelbring v. Pinal Cnty., 135 Ariz. 493, 494, 662 P.2d 458, 459 (App. 1983) (involving dune buggy accident on county road). we observed suggests § in Streck, 13-105(40) nothing applies in only the to As statutory definition vehicles regularly traveling on highways and subject to the same regulations as automobiles. 221 Ariz. at 308, ¶ 8, 211 P.3d at 1292. ¶6 evidence The at trial was more than sufficient to permit the jury to find that the stolen dune buggy met the 4 statutory definition of a vehicle. dune buggy was a home built The victim testified his two-seater valued at approximately $6,000. sandrail dune buggy It had a frame, four tires, engine, transmission, starter switch, head lights, tail lights, battery, shocks, carburetor, floor board, brake and gas pedals, fuel tank, oil tank, and fuel and oil gauges. The victim further testified that the dune buggy was running and drivable when it was stolen. Although there was no specific testimony that the dune buggy had been driven on a highway, the jury could easily conclude from the evidence it is a self-propelled device capable of transporting a person on a highway. ¶7 Contrary to Lewis s contention, the absence of proof that the victim had driven or intended to drive the dune buggy on a highway is immaterial. The definition of vehicle does not turn on what the owner or operator does or intends to do with the device; the issue is simply whether the device is capable of transporting a person or property upon a highway, waterway or airway. See A.R.S. § 13-105(40) (defining vehicle as device in or upon which a person is, may be or could have been transported or drawn upon a highway ). There is no merit to Lewis s argument that construing the definition of vehicle in this manner will lead to absurd results such as a sled, skateboard, Radio Flyer wagon, baby buggy, or rollerblades being considered vehicles because they 5 could be used to transport people down the highway. All these devices are expressly excluded from the definition of vehicle by the unambiguous language in A.R.S. § 13-105(40) excepting devices moved by human power. ¶8 We likewise reject Lewis s argument that a dune buggy should not be considered a vehicle because it definition of an off-road recreational vehicle. fits the An off-road recreational vehicle is defined as a motor vehicle that is designed primarily for recreational nonhighway all-terrain travel and that is not operated on a public highway. 28-101(38) (Supp. 2010). an off road A.R.S. § Lewis is correct that a dune buggy is recreational vehicle operated on a public highway. when it is not being This definition, however, does not preclude operation on a highway. See A.R.S. § 28-2153(9)- (11) (Supp. 2010) (authorizing use of unregistered all-terrain vehicle or off-road recreational motor vehicle on highway in limited circumstances). Indeed, the phrase designed primarily for recreational nonhighway all-terrain travel in defining this type of vehicle clearly contemplates the possibility of uses other than nonhighway all-terrain travel. A.R.S. § 28-101(38) (emphasis added). ¶9 Moreover, definition, an vehicle. Lewis Lewis s off road fails argument totally recreational to explain 6 ignores vehicle how either is that, a by motor legally or logically a dune buggy can be a motor vehicle yet not be a vehicle. See A.R.S. § 28-101(33) (defining motor vehicle as a self-propelled vehicle with the only exceptions being a motorized wheelchair, an electric personal assistive mobility device or a motorized skateboard ). ¶10 There was no error by the trial court in denying the motion for judgment of acquittal on the charge of theft of means of transportation. Accordingly, we affirm the convictions and sentences. /s/ ________________________ DANIEL A. BARKER, Judge CONCURRING: /s/ ____________________________________ PETER B. SWANN, Presiding Judge /s/ ____________________________________ PATRICIA K. NORRIS, Judge 7

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