No. 2 CA-CR 2016-0347
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel, Phoenix By Tanja K. Kelly, Assistant Attorney General, Tucson Counsel for Appellee The Stavris Law Firm, PLLC, Scottsdale By Alison Stavris Counsel for Appellant
THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.
NOT FOR PUBLICATION
See Ariz. R. Sup. Ct. 111(c)(1); Ariz. R. Crim. P. 31.24. Appeal from the Superior Court in Pinal County
The Honorable Boyd T. Johnson, Judge
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel, Phoenix
By Tanja K. Kelly, Assistant Attorney General, Tucson
Counsel for Appellee The Stavris Law Firm, PLLC, Scottsdale
By Alison Stavris
Counsel for Appellant
Chief Judge Eckerstrom authored the decision of the Court, in which Presiding Judge Vásquez and Judge Kelly concurred. ECKERSTROM, Chief Judge:
The Hon. Virginia C. Kelly, a retired judge of this court, is called back to active duty to serve on this case pursuant to orders of this court and our supreme court.
¶1 Renato Bojorquez appeals from his conviction and sentence for theft of a means of transportation. For the following reasons, we affirm his conviction and sentence.
Factual and Procedural Background
¶2 J.C., the owner of a lime green 2013 Ford Mustang, regularly parked his car in a designated spot in his apartment parking lot. On September 20, 2014, at about 5:00 a.m., R.H., J.C.'s neighbor, saw the door of J.C.'s car open on the driver's side. She saw someone who was not J.C. step out of the vehicle and begin pushing it out of the parking lot. She realized the car was being stolen and phoned the police.
¶3 Just after midnight on September 21, a member of the Pinal County Sheriff's Department Posse found the vehicle in a mall parking lot. He approached the vehicle and shined a flashlight inside. Bojorquez was asleep in the driver's seat. The vehicle had trash scattered throughout the interior and had been crudely painted a dark purple color. The car had some minor damage to the exterior as well.
¶4 After a jury trial, Bojorquez was convicted of theft of a means of transportation pursuant to A.R.S. § 13-1814(A)(5). He was sentenced to an enhanced, presumptive prison term of 11.25 years. This appeal followed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A)(1).
¶5 Bojorquez first challenges the trial court's denial of his motion for a judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P. We review the sufficiency of the evidence de novo, and, in our review, we determine only whether a conviction is supported by substantial evidence. State v. Pena, 235 Ariz. 277, ¶ 5, 331 P.3d 412, 414 (2014). Substantial evidence is evidence that reasonable jurors could accept as sufficient to find the defendant guilty beyond a reasonable doubt. State v. Miller, 234 Ariz. 31, ¶ 33, 316 P.3d 1219, 1229 (2013). In making this determination, we view the evidence in the light most favorable to upholding the jury's verdict. State v. Cox, 217 Ariz. 353, ¶ 22, 174 P.3d 265, 269 (2007).
¶6 To prove theft of a means of transportation under § 13-1814(A)(5), the state must show the defendant "[c]ontrol[led] another person's means of transportation knowing or having reason to know that the property is stolen." Bojorquez claims the evidence was insufficient to show either that he controlled the car or that he had reason to know it was stolen.
¶7 As the trial court noted, the evidence here is entirely circumstantial. But "in reviewing the sufficiency of the evidence, we do not distinguish circumstantial from direct evidence." State v. Borquez, 232 Ariz. 484, ¶ 11, 307 P.3d 51, 54 (App. 2013). To "control" a car, a defendant must "act so as to exclude others from using their property except on the defendant's own terms." A.R.S. § 13-1801(A)(2). Although the sole witness to the theft could not identify Bojorquez as the person who stole the car, and no other witnesses actually saw Bojorquez drive it, the circumstances allow an inference that Bojorquez, at some point, exercised control. See State v. Goudeau, 239 Ariz. 421, ¶ 179, 372 P.3d 945, 987 (2016) (testimony and reasonable inferences therefrom provided sufficient evidence, despite lack of eyewitness identification and physical evidence). The car was found in a different place than where the owner left it, and Bojorquez was found in the driver's seat, which "permits a legitimate inference that the car was where it was because of the defendant's choice." State v. Larriva, 178 Ariz. 64, 65, 870 P.2d 1160, 1161 (App. 1993), quoting State v. Smelter, 674 P.2d 690, 693 (Wash. Ct. App. 1984) (considering actual physical control for purpose of DUI statute).
To the extent Bojorquez argues that other evidence might, if investigated, have supported a finding that he never exerted control over the car, the state generally has no duty to seek out exculpatory evidence. See State v. Davis, 205 Ariz. 174, ¶ 37, 68 P.3d 127, 133 (App. 2002). Bojorquez has not raised any claim that the state lost any evidence or otherwise prevented him from conducting his own investigation. --------
¶8 Bojorquez also claims the evidence was insufficient to show that he knew or had reason to know the vehicle was stolen. Section 13-2305, A.R.S., provides that "proof of possession of property recently stolen, unless satisfactorily explained, may give rise to an inference that the person in possession of the property was aware of the risk that it had been stolen." See A.R.S. § 13-1814(B) (presumption of awareness in § 13-2305 applies to prosecution under § 13-1418(A)(5)). The jury was instructed on this permissible inference. Here, Bojorquez was found in a car that had been stolen less than twenty-four hours previously and offered no explanation for how he came to be in possession of it. The jury could therefore presume that Bojorquez was aware of the risk the car had been stolen.
¶9 Moreover, the car, which was described as a "sexy muscle car," had been given a paint job that "was as schlocky as it gets." The jury heard testimony that painting stolen cars to make them less recognizable is a tactic used by car thieves and could reasonably have inferred that a poor-quality paint job on a car designed to be visually impressive was an indication that the vehicle was stolen. The jury also could have found that the condition of the interior, which was described as "ransacked," with personal items "strewn all over the car," provided further indication that the car was stolen. Accordingly, the evidence was sufficient to support a finding that Bojorquez knew or had reason to know the car was stolen.
Lesser Included Offense
¶10 Bojorquez next claims the trial court fundamentally erred in not, sua sponte, giving an instruction on unlawful use of a means of transportation. But in general, outside the context of capital cases, courts do not err, much less err fundamentally, in not giving, sua sponte, an instruction on a lesser included offense. See State v. Gipson, 229 Ariz. 484, ¶¶ 8, 15, 277 P.3d 189, 190, 192 (2012). Indeed, Bojorquez might have made the tactical decision not to seek a lesser included instruction. See id. ¶ 15; State v. Mercer, 13 Ariz. App. 1, 2, 473 P.2d 803, 804 (1970) (defendant may have strategic reason not to request instruction on lesser included offense). As our supreme court long ago explained,
[T]he defendant may take the position . . . that he is entitled to be acquitted unless he is found by the jury to be guilty of the highest degree of the crime charged, believing the evidence insufficient to convict him of the highest degree of such crime, but sufficient to warrant a conviction upon an included offense, or that a submission of the included offenses would result in a compromise verdict of conviction.Uren v. State, 27 Ariz. 491, 495, 232 P. 398, 399 (1925). A defendant who declines to request a lesser included instruction in the hope that the jury will acquit on the greater offense is not entitled to complain on appeal because the tactic ultimately did not prevail. We therefore conclude the court did not err, fundamentally or otherwise, in not sua sponte providing a lesser included offense instruction.
¶11 For the foregoing reasons, we affirm Bojorquez's conviction and sentence.