Opinion
1 CA-CR 11-0529
01-31-2013
STATE OF ARIZONA, Appellee, v. CLARENCE WALTER HARDY, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel Criminal Appeals/Capital Litigation Section and Adriana M. Zick, Assistant Attorney General Attorneys for Appellee James J. Haas, Maricopa County Public Defender By Cory Engle, Deputy Public Defender Attorneys for Appellant
N OTICE: 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(Not for Publication - Rule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 Maricopa County
Cause No. CR 2010-159761-001SE
The Honorable Samuel A. Thumma, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel
Criminal Appeals/Capital Litigation Section
and Adriana M. Zick, Assistant Attorney General
Attorneys for Appellee
Phoenix
James J. Haas, Maricopa County Public Defender
By Cory Engle, Deputy Public Defender
Attorneys for Appellant
Phoenix
NORRIS, Judge ¶1 Following his convictions for disorderly conduct and resisting arrest committed on November 9, 2010, the superior court sentenced Appellant Clarence Walter Hardy to probation on the disorderly conduct charge, and to an enhanced term of imprisonment for resisting arrest, a class 6 felony. On appeal, Hardy argues the court should not have enhanced his sentence for resisting arrest based on his 1996 Michigan conviction of "Larceny from the Person" ("Michigan conviction") because it did not strictly conform to the elements of theft in Arizona. See Ariz. Rev. Stat. ("A.R.S.") § 13-703(M) (2010) (foreign conviction qualifies as prior historical felony conviction when underlying offense "would be punishable as a felony" if committed in Arizona); State v. Crawford, 214 Ariz. 129, 131, ¶ 7, 149 P.3d 753, 755 (2007) (to apply sentencing enhancement, court must first conclude foreign conviction includes every element required to prove an enumerated Arizona offense). ¶2 Specifically, Hardy argues taking from the person was not an element for "Larceny from the Person" under Michigan Compiled Laws Annotated ("Mich. Comp. Laws Ann.") section 750.357 (West 1996) ("Michigan Statute"), and therefore, a person could be guilty of a felony in Michigan for taking property of less than $1,000 -- which would be a misdemeanor and not a felony in Arizona unless the property was taken from a person. See A.R.S. § 13-1802(G) (Supp. 2012) ("Theft of any property or services valued at less than one thousand dollars is a class 1 misdemeanor, unless the property is taken from the person of another . . . in which case the theft is a class 6 felony.") Because Hardy did not raise this argument at sentencing, we review for fundamental error. See State v. Joyner, 215 Ariz. 134, 137, ¶ 5, 158 P.3d 263, 266 (App. 2007). Based on our review of Michigan law, we conclude taking from the person was an element of the Michigan Statute, and thus, find no error in sentencing. ¶3 In 1996, the Michigan Statute provided: "Any person who shall commit the offense of larceny by stealing from the person of another shall be guilty of a felony, punishable by imprisonment in the state prison not more than 10 years." In People v. Ainsworth, the Michigan Court of Appeals described the elements of an offense under the Michigan Statute as follows: (1) an actual or constructive taking of goods or property, (2) a carrying away or asportation, (3) the carrying away must be with felonious intent, (4) the subject matter must be the goods or personal property of another, and (5) the taking must be without the consent of and against the will of the owner. 197 Mich. App. 321, 324, 495 N.W.2d 177, 178 (Mich. Ct. App. 1992) (citation omitted). Relying on this case, Hardy argues "taking . . . from the actual person" was not an element for "Larceny from the Person." We disagree. Although Ainsworth did not expressly list "taking from the person" as an element, the Michigan Statute, on its face, clearly addresses "stealing from the person of another." ¶4 Further, in People v. Perkins , the Michigan Court of Appeals also discussed the elements of the Michigan Statute -- phrased somewhat differently from Ainsworth -- as follows: (1) the taking of someone else's property without consent, (2) movement of the property, (3) with the intent to steal or permanently deprive the owner of the property, and (4) the property was taken from the person or from the person's immediate area of control or immediate presence. 262 Mich. App. 267, 271-72, 686 N.W.2d 237, 240 (Mich. Ct. App. 2004) (citing People v. Wallace, 173 Mich. App. 420, 426, 434 N.W.2d 422, 425 (Mich. Ct. App. 1988)) (emphasis added). The element of taking from the person as described in Perkins , matches the elements of felony theft of property under $1,000 under Arizona law. See State v. Tramble, 144 Ariz. 48, 52, 695 P.2d 737, 741 (1985) (taking "from the person" under prior version of A.R.S. § 13-1802(G) means property is taken from the victim's person, or in his presence and from area within his immediate control). ¶5 We conclude the elements of Hardy's Michigan conviction of "Larceny from the Person" matched the elements of theft under A.R.S. § 13-1802, even if Hardy stole less than $1,000 of property or service. Therefore, the superior court could use the Michigan conviction to enhance Hardy's sentence for resisting arrest.
Although the Arizona Legislature amended the theft statute after the date of Hardy's offense, the change is immaterial. Thus, we cite to the current version of the statute.
Although Hardy argued in the superior court the Michigan conviction could not "come in," he did not raise the argument he raises here -- that "taking . . . from the actual person" was not an element under the Michigan Statute.
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CONCLUSION
¶6 For the foregoing reasons, we affirm Hardy's convictions and enhanced sentence.
______________________________
PATRICIA K. NORRIS, Presiding Judge
CONCURRING: _______________
ANDREW W. GOULD, Judge
_______________
RANDALL M. HOWE, Judge