Opinion
1 CA-JV 12-0248
04-30-2013
IN RE GRANT P.
Law Office of Florence M. Bruemmer, P.C. By Florence M. Bruemmer Attorney for Appellant Sheila Polk, Yavapai County Attorney By Michael Daniels, Deputy County Attorney Attorneys for Appellee
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(Not for Publication -
Ariz. R.P. Juv. Ct. 103(G);
ARCAP 28)
Appeal from the Superior Court in Yavapai County
Cause No. P1300JV201200160
The Honorable Ethan A. Wolfinger, Judge (Retired)
AFFIRMED
Law Office of Florence M. Bruemmer, P.C.
By Florence M. Bruemmer
Attorney for Appellant
Anthem Sheila Polk, Yavapai County Attorney
By Michael Daniels, Deputy County Attorney
Attorneys for Appellee
Prescott KESSLER, Judge ¶1 Appellant Grant P. appeals from the juvenile court's adjudication of delinquency and resulting disposition for burglary in the third degree, and unlawful use of means of transportation, a lesser-included offense of the original charge of theft of means of transportation. For the following reasons, we affirm the juvenile court's judgment.
FACTUAL AND PROCEDURAL HISTORY
¶2 The State filed a petition alleging six counts against Grant: (1) burglary in the second degree; (2) burglary in the third degree; (3 & 4) two counts of theft of means of transportation; (5) theft; and (6) criminal trespass in the first degree. ¶3 The prosecution presented evidence that two brothers Justin S. and Darren B. were at home when they heard a noise outside. The brothers went outside and discovered Grant, whom they knew from school, in their yard. As the three boys were walking through the neighborhood they saw the victims' truck parked next to the street by the victims' home. They walked up to the truck, opened the unlocked doors, and started the truck by "turn[ing] the ignition." They immediately turned off the loud engine, shifted the truck to neutral gear, and pushed the truck "out into the road." Grant and Darren pushed the truck while Justin was steering. When the truck started, Justin drove the boys back to Grant's house. The boys stayed at Grant's house for some time, but when they tried to leave, they were unable to start the truck again. Grant eventually drove Darren and Justin home in his mother's car. ¶4 Early the following morning, the victims noticed their truck was missing and called the police, who arrived and noticed footprints in the area where the truck was previously parked. The police later discovered the truck parked at the end of Grant's driveway. One victim testified that after getting the truck back, the ignition no longer worked and the bumper was cracked. The State submitted several exhibits to the court itemizing the damage, and costs for towing and repairs. ¶5 The defense presented testimony from Grant contradicting the testimony from Justin and Darren. Grant testified that on that evening he was at home watching movies with his sister and a family friend. After he went to sleep, Grant heard knocking on his window. Grant went outside and saw Justin, Darren, and the truck in his driveway. Justin told Grant that the brothers stole the truck. Grant told them to leave and went back inside his house. ¶6 Grant's sister also testified that she was watching movies with her mother, Grant, and a family friend until around 3:30 a.m. on the morning of the incident. She never saw the truck parked outside her house, but did speak with police officers the next day about the incident. She told the police that Grant could not have taken the truck, because he was at home all night with her. ¶7 Counts 1 and 6 were dismissed upon the State's motion and the court found Grant not guilty of Counts 4 and 5. The court found Grant delinquent on Count 2, burglary in the third degree, Arizona Revised Statutes ("A.R.S.") section 13-1506 (2010), and unlawful use of means of transportation, A.R.S. § 13-1803 (2010), a lesser-included offense of Count 3. The court sentenced Grant to the Department of Juvenile Corrections until the age of 18, but ordered he remain in secured care there for only six months. The court also ordered restitution for which Grant was jointly and severally liable with Justin and Darren.
Justin and Darren were adjudicated delinquent in an earlier proceeding.
DISCUSSION
¶8 On appeal, Grant contends that there is insufficient evidence to support his delinquency adjudications. When reviewing the adjudications, "we will not re-weigh the evidence, and we will only reverse on the grounds of insufficient evidence if there is a complete absence of probative facts to support the judgment or if the judgment is contrary to any substantial evidence." In re John M., 201 Ariz. 424, 426, ¶ 7, 36 P.3d 772, 774 (App. 2001). "[W]e view the evidence in the light most favorable to sustaining the adjudication." Id. I. UNLAWFUL USE OF MEANS OF TRANSPORTATION ¶9 "A person commits unlawful use of means of transportation if, without intent permanently to deprive, the person . . . [k]nowingly is transported or physically located in a vehicle that the person knows or has reason to know is in the unlawful possession of another person . . . ." A.R.S. § 13-1803(A)(2) . "It is axiomatic that . . . knowledge may be inferred from the circumstances surrounding a person's behavior or action." State v. Martinez, 15 Ariz. App. 10, 12, 485 P.2d 600, 602 (1971). The phrase "without intent to permanently deprive" is not an element of the offense, but rather meant to distinguish this offense from theft of means of transportation. State v. Kamai, 184 Ariz. 620, 622, 911 P.2d 626, 628 (App. 1995). ¶10 The State presented testimony from Darren indicating that Grant helped push the victims' truck out of the driveway. Both Darren and Justin further testified that Grant entered and rode in the truck with them. The State also provided evidence from which the court could infer knowledge. Darren testified that the three boys did not have the victims' permission to use the truck, and Justin referred to the truck as "stolen." The victims testified that none of the three boys had permission to be on their property or use their truck. ¶11 While Grant and his sister testified that Grant remained at home all night on the date of the incident, the juvenile court, as the trier of fact, was free to reject this testimony. See In re Maricopa County Juv. Action No. JS-8490, 179 Ariz. 102, 107, 876 P.2d 1137, 1142 (1994) ("The [juvenile] court [is] in the best position to measure the credibility of witnesses . . . ."). The court found Darren and Justin's testimony to be more credible. ¶12 Grant further argues that State v. Hoag, 165 Ariz. 215, 797 P.2d 1233 (App. 1990), requires more than just unauthorized entry, and that a defendant must exhibit some degree of control over a person's transportation. In Hoag, the court held that "[o]ne who merely enters another's vehicle without [the intent to use the vehicle as a means of transportation] . . . is not in violation of § 13-1803." 165 Ariz. at 219, 797 P.2d at 1237. However the defendant in Hoag was convicted under the equivalent of A.R.S. § 13-1803(A)(1). 165 Ariz. at 216, 797 P.2d at 1234. Subsection (A)(2) did not exist at the time Hoag was convicted. See A.R.S. § 13-1803 (1989); see also 1995 Ariz. Sess. Laws, ch. 242, § 1 (1st Reg. Sess.) (creating two subsections under A.R.S. § 13-1803(A)). As Grant was charged and adjudicated under subsection (A)(2), Hoag is not applicable to this case. Even if we were to decide that Hoag applies to subsection (A)(2), the evidence reflects that Grant did more than simply commit an unauthorized entry. Grant both pushed and rode in the truck; each such act constitutes indicia of control. The State presented sufficient evidence to support Grant's conviction for unlawful use of means of transportation. We find no error.
II. BURGLARY IN THE THIRD DEGREE
¶13 A person commits third degree burglary by: "[e]ntering or remaining unlawfully in or on a nonresidential structure . . . with the intent to commit any theft or any felony therein." A.R.S. § 13-1506(A)(1) . The term "structure" includes a vehicle. A.R.S. § 13-1501(12) (Supp. 2012); see also State v. Hamblin, 217 Ariz. 481, 484, ¶ 10, 176 P.3d 49, 52 (App. 2008). As discussed, the State provided testimony to prove that Grant unlawfully entered the truck. See supra ¶ 10. This evidence, which supported Grant's unlawful use of means of transportation adjudication, also goes to the element of "intent to commit any theft or any felony therein" required to prove third degree burglary. The State presented sufficient evidence to support Grant's adjudication for burglary in the third degree. We find no error.
CONCLUSION
¶14 For the preceding reasons, we affirm the juvenile court's adjudication and disposition.
_____________________
DONN KESSLER, Judge
CONCURRING: _____________________
JON W. THOMPSON, Judge
_____________________
LAWRENCE F. WINTHROP, Judge