Opinion
1 CA-CR 12-0234
04-02-2013
STATE OF ARIZONA, Appellee, v. JAMES LEE LITT, JR., Appellant.
Thomas C. Horne, Attorney General By Joseph T. Maziarz, Acting Chief Counsel Criminal Appeals/Capital Litigation Division Attorneys for Appellee Phoenix Droban & Company, PC By Kerrie M. Droban Attorneys for Appellant Anthem
NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED
EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
See Ariz.R.Sup.Ct. 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(Not for Publication -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. CR2011-007856-001
The Honorable Samuel A. Thumma, Judge
AFFIRMED
Thomas C. Horne, Attorney General
By Joseph T. Maziarz, Acting Chief Counsel
Criminal Appeals/Capital Litigation Division
Attorneys for Appellee
Phoenix Droban & Company, PC
By Kerrie M. Droban
Attorneys for Appellant
Anthem OROZCO, Judge ¶1 James Lee Litt, Jr. (Defendant) appeals his convictions and sentences for attempt to commit theft of means of transportation and burglary in the third degree, both class four felonies. Defendant's counsel filed a brief in accordance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969), advising this court that after a search of the entire appellate record, she found no arguable question of law that was not frivolous. Defendant was also afforded leave to file an in propria persona supplemental brief, but he has not done so. Our obligation in this appeal is to review "the entire record for reversible error." State v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). During our review of the record, we found no reversible error. Therefore, we affirm Defendant's convictions and sentences.
FACTS AND PROCEDURAL HISTORY
¶2 On June 6, 2011, Dr. Johnsen was in her garden when she heard a loud noise coming from a nearby lot that she owned. When Dr. Johnsen went to the lot to investigate, she found the lot's gate wide open, and saw Defendant trying to hook up her 1984 Chevrolet S10 pickup truck (Chevy) to a tow truck driven by another man (Willis). Dr. Johnsen also noticed that the engine for another one of her vehicles had been moved from the ground to the hood of the Chevy. Dr. Johnsen called 911 and requested police assistance. ¶3 Defendant testified that he had agreed to purchase the Chevy from a woman named Danielle; however, Dr. Johnsen testified that she had owned the Chevy since 1989, and although she had previously received offers to buy the Chevy, she had never sold or given anyone permission to borrow the vehicle. Phoenix Police Officer I. (Officer I.) testified that when she responded to the scene, Defendant first used several different names to identify the woman who alleged sold the Chevy to him. Phoenix Police Officer C. (Officer C.) testified that although Defendant later identified the woman as Danielle, he was unable to provide Danielle's last name or contact information. ¶4 Officer C. testified that Defendant told him that Danielle had unlocked the gate of Dr. Johnsen's property. However, Dr. Johnsen testified that she had both sets of keys for the lock on the gate, the keys had never been missing, and she had never loaned them to anyone. The lock and chain from the gate were never found, but Dr. Johnsen did find a link on the ground that was similar to the links in the chain used to lock the gate. Officer I. and Dr. Johnsen testified that it appeared the chain had been cut based on the link they found. ¶5 The State charged Defendant with attempt to commit theft of means of transportation and burglary in the third degree, and the jury convicted Defendant of both counts. The trial court sentenced Defendant to concurrent ten year sentences on each count and awarded him 307 days of presentence incarceration credit. ¶6 Defendant timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and Arizona Revised Statutes (A.R.S.) sections 12-120.21.A.1 (2003), 13-4031 (2010), and -4033.A.1 (2010).
The State also charged Defendant with resisting arrest, possession of drug paraphernalia, and aggravated robbery. However, the State moved to dismiss the possession of drug paraphernalia and aggravated robbery counts before trial, and the trial court granted the motion. The jury later acquitted Defendant of resisting arrest.
DISCUSSION
¶7 When reviewing a claim of insufficient evidence, we view the evidence "in the light most favorable to sustaining the conviction." State v. Tison, 129 Ariz. 546, 552, 633 P.2d 355, 361 (1981). We do not reweigh the evidence and will affirm if substantial evidence supports the jury's verdict. Id. "'Substantial evidence' is evidence that reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980).
Attempt to Commit Theft of Means of Transportation ¶8 To secure a conviction for attempt to commit theft of means of transportation, the State was required to prove beyond a reasonable doubt that Defendant (1) knowingly engaged in conduct, (2) without lawful authority, (3) designed to control Dr. Johnsen's Chevy, (4) with the intent to permanently deprive Dr. Johnsen of it. See A.R.S. §§ 13-1001.A.1 (2010), -1814.A.1 (2010). ¶9 While testifying, Defendant admitted that he went to the property to tow the Chevy, which shows that he acted knowingly. See A.R.S. § 13-105.10(b) (Supp. 2012) (stating that knowingly "does not require any knowledge of the unlawfulness of the act or omission"). ¶10 To satisfy the second element, Dr. Johnsen identified Defendant as the person she saw trying to steal her Chevy and testified that she had never seen Defendant before this incident. Although Defendant contended that he had purchased the Chevy from a woman named Danielle, Dr. Johnsen testified that she had never sold or given anyone permission to borrow the Chevy. ¶11 Dr. Johnsen also testified that she witnessed Defendant trying to hook up her Chevy to the tow truck and that there was no reason that the Chevy would be getting towed from her property. This evidence supports the inference that Defendant's conduct was designed to control Dr. Johnsen's Chevy. ¶12 Finally, Defendant testified that he was planning on selling the Chevy for scrap, which is sufficient to support an inference of intent to permanently deprive. See State v. Edgar, 126 Ariz. 206, 209, 613 P.2d 1262, 1265 (1980) (stating that intent to permanently deprive may be established by circumstantial evidence). ¶13 We find that substantial evidence was presented by the State to support the jury's verdict that Defendant was guilty of attempt to commit theft of means of transportation.
We cite the current version of the applicable statutes when no revisions material to this decision have since occurred.
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Burglary in the Third Degree ¶14 To convict Defendant of this crime, the State was required to prove, beyond a reasonable doubt, that (1) Defendant entered or remained unlawfully, (2) in or on a fenced residential yard, (3) with the intent to commit any theft or any felony therein. A.R.S. § 13-1506.A.1 (2010). As applied to this case, "theft" occurs when a person knowingly controls the property of another, without lawful authority, and with the intent to deprive the other person of the property. A.R.S. § 13-1802.A.1 (Supp. 2012). ¶15 To satisfy the first element, Dr. Johnsen identified Defendant as the person involved in the incident on her property. During the trial, Dr. Johnsen's 911 call was played for the jury. In the call, the 911 operator asked Dr. Johnsen if Defendant and Willis were on her property, and she responded that they were. Dr. Johnsen testified that she had confirmed the gate was locked the evening before, and the keys to the lock were in her possession and had never been loaned to anyone. She opined that it appeared the chain that locked the gate had been cut with bolt cutters. Dr. Johnsen also testified that she did not give Defendant permission to be on her property. ¶16 For the next element, Dr. Johnsen testified that the lot from which Defendant attempted to steal her Chevy has a house on it and is zoned for residential use. She also stated that the lot is surrounded by a fence and gate. ¶17 To satisfy the final element of burglary in the third degree, Dr. Johnsen testified that she witnessed Defendant trying to hook up her Chevy to the tow truck. Dr. Johnsen also noticed that the engine for another one of her vehicles had been moved from the ground to the hood of the Chevy. Defendant testified that he was planning on towing the Chevy to sell it for scrap. Although Defendant claimed to have bought the Chevy, Dr. Johnsen testified that she had never sold or given anyone permission to borrow the Chevy, had never sold or given the engine to anyone, and had never given Defendant permission to take the engine. Although Defendant did not actually complete the theft of the Chevy or engine, burglary does not require the successful completion of the theft or felony. See State v. Bottoni, 131 Ariz. 574, 575, 643 P.2d 19, 20 (App. 1982). Thus, the State presented sufficient evidence to prove that Defendant intended to commit a theft or felony on Dr. Johnsen's property. ¶18 We find that substantial evidence supports the jury's verdict that Defendant was guilty of burglary in the third degree.
CONCLUSION
¶19 We have read and considered counsel's brief and the entire record on appeal. We have carefully searched the entire appellate record for reversible error and have found none. See Clark, 196 Ariz. at 541, ¶ 49, 2 P.3d at 100. All of the proceedings were conducted in compliance with the Arizona Rules of Criminal Procedure, and substantial evidence supported the jury's verdicts of guilt. Defendant was present and represented by counsel at all critical stages of the proceedings. At sentencing, Defendant and his counsel were given an opportunity to speak, and the court imposed a legal sentence. ¶20 Counsel's obligations pertaining to Defendant's representation in this appeal have ended. Counsel need do nothing more than inform Defendant of the status of the appeal and his future options, unless counsel's review reveals an issue appropriate for submission to the Arizona Supreme Court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-85, 684 P.2d 154, 156-57 (1984). Defendant shall have thirty days from the date of this decision to proceed, if he so desires, with an in propria persona motion for reconsideration or petition for review. ¶21 For the foregoing reasons, Defendant's convictions and sentences are affirmed.
____________________
PATRICIA A. OROZCO, Judge
CONCURRING: ____________________
MAURICE PORTLEY, Presiding Judge
____________________
RANDALL M. HOWE, Judge