Opinion
1 CA-CR 12-0285
03-19-2013
STATE OF ARIZONA, Appellee, v. KENNETH RICHARD JOHNSTON, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Chief Counsel, Criminal Appeals/Capital Litigation Section And Alice Jones, Assistant Attorney General Attorneys for Appellee Jerald C. Thompson By Jerald C. Thompson Attorney for Appellant
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
MEMORANDUM DECISION
(Not for Publication -
Rule 111, Rules of the
Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County
Cause No. CR2010-006357-002 DT
The Honorable Connie Contes, Judge
AFFIRMED
Thomas C. Horne, Arizona Attorney General
By Kent E. Cattani, Chief Counsel,
Criminal Appeals/Capital Litigation Section
And Alice Jones, Assistant Attorney General
Attorneys for Appellee
Phoenix
Jerald C. Thompson
By Jerald C. Thompson
Attorney for Appellant
Tempe
BROWN, Judge ¶1 Kenneth Richard Johnston appeals from his conviction on one count of trafficking in stolen property in the second degree. Johnston argues the trial court abused its discretion by (1) denying his motion for judgment of acquittal; (2) permitting the detective to testify regarding the value of the stolen property; and (3) permitting the State to impeach him with a historical prior felony conviction. For the following reasons, we affirm.
BACKGROUND
¶2 In July 2009, K.W. was an undercover officer in a special unit charged with infiltrating organizations and groups involved in the theft and sale of stolen property. In this capacity, K.W. made it known that he wanted to purchase "a Twin Cam Harley-Davidson motor." ¶3 On July 8, K.W. went to a fenced compound where a man named "Frank" showed him a Twin Cam motor and transmission that were inside a permanent structure within the compound. K.W. noticed that the serial number on the side of the motor "had been obliterated or ground off," which indicated that the motor "most likely was stolen." K.W. returned to the compound on July 10 to negotiate with a man named "Laylow" and a woman named "Tina" the possible purchase of the motor, but K.W. did not purchase it. ¶4 On July 14, K.W. returned to the compound and noticed what appeared to be a different Harley-Davidson motor, transmission, and frame covered up with a sheet in the same room as the Twin Cam. When K.W. asked about the covered parts, he was told he would have to speak to Johnston about them. ¶5 The following day, Tina allowed K.W. to enter the compound. K.W. asked Tina about the motorcycle parts he had seen under the sheet. Tina called Johnston to inquire about the parts and then went into the building where Johnston lived "to see if it was okay" that K.W. was on the property. Soon thereafter a person named "Steve" came out of Johnston's residence and escorted K.W. to the building containing the two motors. When K.W. told Steve that he was more interested in the parts that were covered up, Steve removed the sheet. K.W. noticed the vehicle identification number ("VIN") was gone and that the engine number had been "obliterated." ¶6 K.W. attempted to discuss the price of the motor and frame with Steve, but Steve informed him that he would have to speak with Johnston about it. Steve then escorted K.W. to Johnston's house, where K.W. met Johnston for the first time. When K.W. asked what kind of frame and motor it was, Johnston turned to a nearby individual and asked if it was a Sportster; "Mike" confirmed it was. When K.W. asked Johnston how much he wanted for the Sportster, Johnston replied "500 dollars." K.W. told Johnston he did not have the money with him that day, and expressed concern about the numbers being "ground off" the frame. K.W. also asked about any "issues" or work the motor needed. In response, Johnston commented about having to do "some type of work" to get the Sportster registered. K.W. understood Johnston's comment to mean that he would have to replace the serial number. ¶7 Wearing a recording device, K.W. returned to the compound the next day to purchase the Sportster. K.W. entered Johnston's residence and asked him if he would accept $350 for the Sportster. Johnston accepted and K.W. paid him in cash, placing the bills in Johnston's hands. K.W. did not receive either a bill of sale or title. After completing the transaction, K.W. returned to the police station with the Sportster. ¶8 At the police station, K.W. inspected the Sportster, and could see the VIN was missing and that parts of the frame were freshly painted. On the underside of the frame, K.W. noticed the VIN sticker had been spray painted, and the engine serial number had clearly been "ground off." With the assistance of another detective, K.W. obtained the complete VIN and confirmed that the parts were from a Harley-Davidson Sportster motorcycle that had been reported stolen in 2006. After doing some research, K.W. determined that the fair market value for the engine assembly was between $1200 and $1500 and between $500 and $600 for the frame. ¶9 The State charged Johnston with recklessly trafficking in stolen property. Ariz. Rev. Stat. ("A.R.S.") § 13-2307(A) (2012). A jury convicted Johnston and the court sentenced him to an aggravated twelve-year term of imprisonment. This timely appeal followed.
For convenience, and unless otherwise noted, we refer to the Harley-Davidson motor, transmission, and frame as "the Sportster."
Although K.W.'s comments initially encompassed both the Twin Cam and the Sportster, K.W. redirected the conversation specifically towards the Sportster.
Absent material revisions after the relevant date, we cite the current version of statutes.
DISCUSSION
I. Denial of Motion for Judgment of Acquittal
A. Knowledge of Stolen Motorcycle Parts
¶10 Johnston contends the trial court erred in denying his motion for a judgment of acquittal, arguing the State presented "no evidence whatsoever" that he ever saw the motorcycle parts in question, knew or had any reason to believe the parts were stolen, or consciously disregarded a substantial and unjustifiable risk that the parts were stolen. ¶11 A motion for judgment of acquittal should be granted "if there is no substantial evidence to warrant a conviction." Ariz. R. Crim. P. 20(a). Substantial evidence "is such proof that 'reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt.'" State v. West, 226 Ariz. 559, 562, ¶ 16, 250 P.3d 1188, 1191 (2011) (citations omitted). The "question of sufficiency of the evidence is one of law, subject to de novo review on appeal." Id. at ¶ 15. Both direct and circumstantial evidence may be considered when examining whether substantial evidence supports a conviction, id. at ¶ 16, as both have equal probative value, Lohse v. Faultner, 176 Ariz. 253, 259, 860 P.2d 1306, 1312 (App. 1992). ¶12 On appeal, we resolve any conflicts in the evidence in favor of sustaining the jury's verdict. State v. Girdler, 138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). We will not reweigh the evidence, State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981), or reassess the credibility of witnesses, State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (noting credibility is strictly a jury determination). ¶13 Johnston argues the State presented insufficient evidence that he consciously disregarded a substantial and unjustifiable risk that the Sportster was stolen. Johnston asserts he never "negotiated" anything but simply "accepted" the $350 offer. The evidence, however, shows that Johnston specifically asked K.W. for $500 but later accepted less when K.W. asked if he would take $350. K.W. also testified that Johnston did not confer with anyone before accepting the offer. Therefore, Johnston negotiated the sale of the Sportster. ¶14 Johnston also maintains there was no evidence he was aware of the missing and destroyed serial numbers because the conversation regarding the serial numbers took place between K.W. and Mike. But the record indicates Johnston was present when K.W. noted the serial numbers were "ground off" and discussed what "work" K.W. would have to do to register the Sportster. The fact that Johnston was privy to this discussion supports the inference that he was aware the original serial numbers had been tampered with. ¶15 Johnston further contends the evidence does not support the State's argument that he acted "recklessly" because the Sportster was sold well below its fair market value. However, because Johnston was the possessor and "vendor" of motorcycle parts, the jury could reasonably infer that he was aware of the fair market value of the Sportster. ¶16 In sum, substantial evidence supports the finding that Johnston acted recklessly regarding the stolen nature of the Sportster. The trial court therefore did not err in denying his motion for judgment of acquittal on this basis.
"Recklessly" is defined as:
[W]ith respect to a result or to a circumstance described by a statute defining an offense, that a person is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard of such risk constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation.A.R.S. § 13-105(10)(c) (2012).
See A.R.S. § 13-2305(2) (2012): Proof of the purchase or sale of stolen property at a price substantially below its fair market value, unless satisfactorily explained, may give rise to an inference that the person buying or selling the property was aware of the risk that it had been stolen.
Insofar as Johnston bases his sufficiency argument on his testimony at trial denying any knowledge of the existence of the Sportster, we must presume the jury did not find him credible. See Soto-Fong, 187 Ariz. at 200, 928 P.2d at 624.
B. Evidence that the Sportster was Stolen
¶17 Johnston argues there was insufficient evidence to establish the Sportster was actually stolen, pointing to a discrepancy regarding the VIN. The officer who wrote the initial stolen vehicle report in 2006 testified that the first portion of the VIN for the Sportster was 1HD4. The police report created for the purchase of the parts, however, listed that portion as 1H4D. The trial court correctly determined that any such discrepancy in the evidence was for the jury to resolve. See State v. Landrigan, 176 Ariz. 1, 4, 859 P.2d 111, 114 (1993) (stating that when considering motion for judgment of acquittal, if reasonable minds could differ on the inferences to be drawn from the evidence, the matter should be submitted to the jury). ¶18 In addition, other evidence established the Sportster was stolen. K.W. testified he ran the VIN and it came back as belonging to a 2005 Sportster, which was reported stolen in 2006. Furthermore, a photograph K.W. took of the frame he purchased shows the first few digits of the VIN to be 1HD4, which correspond to the listing in the stolen vehicle report, demonstrating that any discrepancy was attributable to a typographical error.
II. Improper Admission of Hearsay Evidence
¶19 Johnston argues the trial court erred in permitting the State to establish the fair market value of the Sportster through K.W.'s testimony because the testimony contained hearsay. We review a trial court's evidentiary rulings for an abuse of discretion. State v. Tucker, 205 Ariz. 157, 165, ¶ 41, 68 P.3d 110, 118 (2003). ¶20 At trial, K.W. testified he initially spoke with a parts manager at a Harley-Davidson motorcycle store, to try to determine the value of the parts. However, that only enabled him to determine the price of the parts as new. He then visited some online auction sites and researched the cost of a 2005 Sportster engine and transmission combination, and frame. Based on this research, he concluded the average price for the motorcycle parts was between $1200 and $1500 for the engine assembly and $500 to $600 for the frame. ¶21 The State concedes that K.W.'s testimony of the parts manager's price quotes was improper hearsay. However, those price quotes were for new parts, and it is clear from the record that neither K.W. nor the State relied on them in their closing arguments to establish the fair market value. As such, we are convinced that admission of the hearsay from the parts manager was harmless error. See State v. Valverde, 220 Ariz. 582, 585, ¶ 11, 208 P.3d 233, 236 (2009) (explaining that an error is harmless if the State can establish beyond a reasonable doubt that the error did not contribute to the verdict). ¶22 The State's permissible inference argument at trial regarding a low price paid for the motorcycle parts derived from the fact that Johnston was willing to accept less than a quarter of the average price for used, not new, parts. K.W. testified that he determined the used prices after researching the prices using various online auction sites. This testimony did not contain anyone else's statements of price or value, but was K.W.'s estimate based upon his research and first-hand knowledge of prices for such used parts. As such, his testimony regarding prices for used motorcycle parts was admissible. See, e.g., State v. Printz, 125 Ariz. 300, 303, 609 P.2d 570, 573 (1980) (stating that where witness testifies not as to specific information supplied in course of single transaction, but knowledge based on his numerous negotiations, testimony is no longer based upon hearsay and is admissible); see also State v. Miller, 108 Ariz. 303, 307-08, 497 P.2d 516, 520-21 (1972) (concluding that knowledge of value derived by witness from years of working with sellers and buyers of machine constitutes first-hand knowledge, not hearsay). The trial court did not err in permitting K.W. to testify about the fair market value of the Sportster.
Johnston also suggests that K.W. should not have been allowed to testify about fair market value because he was not qualified as an expert witness. Based on our conclusion that K.W.'s testimony regarding his online research was properly admitted, we need not address Johnston's argument that K.W. improperly testified as an expert.
III. Impeachment with Prior Conviction
¶23 Prior to trial, the State filed a motion requesting an Arizona Rule of Evidence 609 hearing that listed nine of Johnston's prior felony convictions as well as numerous pending offenses. Following the trial court's denial of Johnston's motion for judgment of acquittal, defense counsel requested a Rule 609 hearing in the event that Johnston decided to testify. At the hearing, the State announced it only intended to use for impeachment purposes a 1996 conviction for conspiracy to sell drugs, for which Johnston was released from prison in May 2000. ¶24 Johnston argued the conviction was too remote in time to be used for impeachment because it fell outside Rule 609's 10-year limit and therefore its probative value was substantially outweighed by its prejudicial effect. The State countered that the conviction fell within the 10-year limitation because the 10-year period should be calculated from the date Johnston was released from prison in May 2000. Alternatively, the State asserted it would still be within the trial court's discretion to permit the offense to be used for impeachment. ¶25 The trial court ruled in favor of the State, finding that although the prior conviction was untimely, the State could use the conviction to impeach Johnston. Specifically, the court found that "in the interests of justice the probative value of that one conviction is supported by specific facts and circumstances and substantially outweighs its prejudicial effect." The court explained that it based its determination on the following factors:
[T]he length of time which has elapsed since the conviction, the length of the former imprisonment, subsequent conduct of the defendant . . . prior conduct, criminal conduct of the defendant that's not being introduced as impeachment, and basically that's the totality of his involvement with the criminal justice system, be it law enforcement, court process or Department of Corrections.The court stated further that it had considered Johnston's present age, intervening circumstances since the conviction being used to impeach his credibility and since his release from prison for that crime, in addition to the nature of all of the offenses for which he had previously been convicted. When Johnston testified, the State asked him about his prior felony conviction. ¶26 Johnston argues the trial court erred in permitting the State to impeach him with a remote prior conviction that was "nearly twenty year[s] old." He also maintains the prior conviction's probative value was unsupported by specific facts and circumstances. ¶27 When reviewing a trial court's ruling on the admissibility of a prior conviction, we will overturn the ruling "only if it proves to have been a clear abuse of discretion." State v. Green, 200 Ariz. 496, 498, ¶ 7, 29 P.3d 271, 273 (2001). If "more than 10 years have passed since the witness's conviction or release from confinement for it, whichever is later," then evidence of a conviction is admissible "only if its probative value, supported by specific facts and circumstances, substantially outweighs its prejudicial effect." Ariz. R. Evid. 609(b). ¶28 In Green, our supreme court found that there were no "set guidelines" for determining the admissibility of a remote prior conviction. 200 Ariz. at 499, ¶ 12, 29 P.3d at 274. Instead, it held a trial court should consider many factors, such as: the remoteness of the prior; the nature of the prior; the length of the former imprisonment; the age of the defendant; the defendant's conduct since the prior offense; the impeachment value of the prior; the similarity between the prior conviction and the present crimes; the importance of the defendant's testimony; and the centrality of the credibility issues. Id. ¶29 Contrary to Johnston's arguments, the trial court here complied with Green and supported its ruling with specific facts and circumstances it considered based upon many of the factors enumerated in Green. The court also specifically found the admission of the single prior was in the interests of justice and that its probative value outweighed any possible prejudice. "Generally, a court abuses its discretion where the record fails to provide substantial support for its decision or the court commits an error of law in reaching the decision." Files v. Bernal, 200 Ariz. 64, 65, ¶ 2, 22 P.3d 57, 58 (App. 2001). Neither is true in this case. The trial court did not abuse its discretion in permitting the use of the single prior conviction for impeachment purposes.
The State notes that "Arizona courts have not expressly addressed what date should be used as the end date for the ten-year limit" in Rule 609, and invites us to rule on that in our decision. However, because the trial court's ruling and our decision do not turn on that issue, we decline to do so.
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CONCLUSION
¶30 Based on the foregoing, we affirm Johnston's conviction and sentence.
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MICHAEL J. BROWN, Judge
CONCURRING: ______________________________
SAMUEL A. THUMMA, Presiding Judge
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DIANE M. JOHNSEN, Judge