From Casetext: Smarter Legal Research

State v. Fox

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 5, 2014
No. 1 CA-CR 13-0049 (Ariz. Ct. App. Jun. 5, 2014)

Opinion

No. 1 CA-CR 13-0049

06-05-2014

STATE OF ARIZONA, Appellee, v. JOHN LLOY FOX, Appellant.

Arizona Attorney General's Office, Phoenix By Adriana M. Zick Counsel for Appellee Mohave County Legal Advocate's Office, Kingman By Jill L. Evans Counsel for Appellant


NOTICE: NOT FOR PUBLICATION.

UNDER ARIZ. R. SUP. CT. 111(c), THIS DECISION DOES NOT CREATE LEGAL PRECEDENT

AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.


Appeal from the Superior Court in Mohave County

No. S8015CR201200211

The Honorable Derek C. Carlisle, Judge Pro Tempore


AFFIRMED


COUNSEL

Arizona Attorney General's Office, Phoenix
By Adriana M. Zick
Counsel for Appellee
Mohave County Legal Advocate's Office, Kingman
By Jill L. Evans
Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Lawrence F. Winthrop delivered the decision of the Court, in which Judge Maurice Portley and Judge Andrew W. Gould joined. WINTHROP, Presiding Judge:

¶1 After a jury trial, John Lloy Fox was convicted of theft of means of transportation, a class three felony. The trial court suspended imposition of sentence and placed him on probation for four years. On appeal, Fox challenges his conviction. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In July 2011, the victim, M.T., reported stolen a red and white all terrain vehicle. The vehicle was equipped with paddle tires, designed for improved performance on sand, and was stolen with the key in its ignition from a trailer. M.T. placed an advertisement about the vehicle in the local newspaper, offering an award for information that led to its return. The following week a woman, identifying herself as "Destiny," contacted the victim and offered to return the stolen vehicle. Destiny claimed a man named "Raul" asked her to store the vehicle until he could sell it when he returned to town. Destiny asked M.T. to avoid contacting the police in exchange for the vehicle's return. M.T. agreed to meet her at a gas station to make the recovery.

¶3 The recovery did not occur at the gas station, however; instead, Destiny got into M.T.'s truck and instructed him to leave the gas station and follow her directions. Along the way, they came to a man on a blue all terrain vehicle, later identified as Fox, who gave further instructions to follow him to the remote location of the stolen vehicle; the vehicle was hidden behind bushes in a wash at the end of the road. M.T. verified the vehicle was his own and loaded it into his truck. Destiny and Fox then asked about the reward money. After learning that M.T. would be paying them less than the advertised reward, Fox claimed the vehicle was worth $9,000 and "Raul" had offered to pay $500 for storage. Fox and Destiny eventually agreed to take less than the total reward with assurances that the rest would come later; the parties then separated with Fox and Destiny driving off into the desert on a blue all terrain vehicle.

¶4 At home, M.T. more closely inspected the vehicle and noticed extensive damage, including the removal of the license plate, factory decals, and front fenders; the obliteration of the first three digits of the vehicle identification number; and damage to the rear lights, brakes, and tires. In the meantime, Destiny contacted M.T. in search of her missing wallet because she thought it had fallen out in his truck during the recovery. M.T. found the wallet and noticed inconsistencies between the names on the credit cards and an out-of-state driver's license. M.T. photocopied the contents of the wallet, returned the wallet to Destiny, and passed the photocopies on to the police.

¶5 M.T. also showed the photocopies to his son, who recognized the woman as "Annie," whom he had previously met. The next day, M.T.'s son went to the location of the vehicle recovery and traced tire marks made by the stolen vehicle's paddle tires to a residence. At the residence, M.T.'s son noticed marks by the paddle tires into and out of the property at several entrances; he also saw a blue all terrain vehicle.

¶6 The State charged Fox with theft of means of transportation, a class three felony, in violation of Arizona Revised Statutes ("A.R.S.") section 13-1814 (West 2014). At trial, Fox's landlord testified she witnessed Fox driving a distinctive red and white all terrain vehicle at the end of July 2011. The landlord also testified that around that time she met a woman named "Annie" who was friends with Fox. Fox told his landlord that Annie had brought over the red and white all terrain vehicle; he also asked the landlord for permission to store the vehicle on the property for a friend.

We cite the most recent version of the constitutional provisions, statutes, and rules, because no revisions relevant to this appeal have since occurred.

¶7 Testifying on behalf of Fox, an employee stated that he and Fox first came in contact with a vehicle similar to the stolen vehicle after helping a couple women whose all terrain vehicle had broken down. Fox's employee could not remember exactly what the all terrain vehicle looked like, when the event occurred, or the names of the women helped.

¶8 Following the two-day trial, the jury found Fox guilty. In January 2013, the trial court suspended the imposition of sentence and placed Fox on probation for four years. As a condition of probation, the court ordered Fox to serve 120 days in Mohave County Jail. Fox filed a timely notice of appeal. We have appellate jurisdiction pursuant to the Arizona Constitution, Article 6, Section 9 and A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033.

DISCUSSION

¶9 Fox argues the trial court erred in denying his motion for a directed verdict pursuant to Arizona Rule of Criminal Procedure 20, because the State did not present evidence sufficient to support a conviction under A.R.S. § 13-1814(A)(5). Under Rule 20, "On motion of a defendant . . . , the court shall enter a judgment of acquittal of one or more offenses charged in an indictment, information or complaint after the evidence on either side is closed, if there is no substantial evidence to warrant a conviction." Ariz. R. Crim. P. 20.

¶10 We review the sufficiency of the evidence de novo. State v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). "When reviewing for sufficiency of the evidence, we determine whether, viewing the evidence in the light most favorable to the prosecution, a rational trier of fact could have convicted the defendant of the crime in question." State v. McGill, 213 Ariz. 147, 152, ¶ 17, 140 P.3d 930, 935 (2006) (citation omitted).

¶11 Under A.R.S. § 13-1814(A)(5), "A person commits theft of means of transportation if, without lawful authority, the person knowingly . . . [c]ontrols another person's means of transportation knowing or having reason to know that the property is stolen." Pursuant to A.R.S. § 13-2305(1), "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 or in some way participated in its theft." See A.R.S. § 13-1814(B) (adopting inferences from § 13-2305(1)).

¶12 We reject Fox's argument that the State presented evidence insufficient to establish that he knew or had reason to know that the property at issue in this case was stolen. "The finder-of-fact, not the appellate court, weighs the evidence and determines the credibility of witnesses," State v. Cid, 181 Ariz. 496, 500, 892 P.2d 216, 220 (App. 1995) (citation omitted); thus, Fox's alternate explanation of the events was squarely in the province of the jury. Even if we accepted Fox's explanation as true, "a rational trier of fact could have convicted the defendant of the crime in question." McGill, 213 Ariz. at 152, ¶ 17, 140 P.3d at 935 (citation omitted). Reviewing the facts, the State presented evidence about the damage obscuring the identifying features of the stolen vehicle, including the removal of the license plate, decals, and front fenders and the filing down of the vehicle identification number. M.T. testified about Fox's suspicious behavior during the return of the stolen property, including the arranged meeting at separate neutral sites instead of the property on which the vehicle was stored, the accomplice's use of an alias, the lengths to which Fox hid the stolen property in a wash off the road, and Fox's demeanor when the full reward money was not immediately forthcoming. With this evidence before it, a rational jury could find Fox guilty of theft of means of transportation, particularly under the presumption in A.R.S. § 13-2305(1).

CONCLUSION

¶13 We affirm Fox's conviction and placement on probation.


Summaries of

State v. Fox

ARIZONA COURT OF APPEALS DIVISION ONE
Jun 5, 2014
No. 1 CA-CR 13-0049 (Ariz. Ct. App. Jun. 5, 2014)
Case details for

State v. Fox

Case Details

Full title:STATE OF ARIZONA, Appellee, v. JOHN LLOY FOX, Appellant.

Court:ARIZONA COURT OF APPEALS DIVISION ONE

Date published: Jun 5, 2014

Citations

No. 1 CA-CR 13-0049 (Ariz. Ct. App. Jun. 5, 2014)