Opinion
No. 2 CA-CR 2012-0497
11-26-2013
THE STATE OF ARIZONA, Appellee, v. ASHLEY ELIZABETH LAPPITT, Appellant.
Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Section Chief Counsel, Phoenix and Joseph L. Parkhurst, Assistant Attorney General, Tucson Counsel for Appellee Barton & Storts, P.C., Tucson By Brick P. Storts, III 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NOT FOR PUBLICATION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), Ariz. R. Crim. P. 31.24
Appeal from the Superior Court in Pima County
No. CR20114009001
The Honorable Michael O. Miller, Judge
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
By Joseph T. Maziarz, Section Chief Counsel, Phoenix
and Joseph L. Parkhurst, Assistant Attorney General, Tucson
Counsel for Appellee
Barton & Storts, P.C., Tucson
By Brick P. Storts, III
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred. KELLY, Presiding Judge:
¶1 Following a jury trial, appellant Ashley Lappitt was convicted of second-degree trafficking in stolen property. The trial court suspended the imposition of sentence and placed Lappitt on probation for a period of five years. On appeal, she argues there was insufficient evidence to support her conviction and urges this court to vacate it or, alternatively, modify it to a conviction for the offense of false representation. We affirm for the following reasons.
Factual and Procedural Background
¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to upholding Lappitt's conviction and probationary term. See State v. Becerra, 231 Ariz. 200, ¶ 2, 291 P.3d 994, 996 (App. 2013). In October 2011, B.M. saw two men running from her house. She alerted police after realizing that some of her jewelry was missing. The following day, Lappitt sold B.M.'s jewelry to a pawn shop for $350. Following a jury trial, Lappitt was convicted of trafficking in stolen property in the second degree and placed on probation for five years. Lappitt timely appealed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A).
Statutory Definition of Trafficking
¶3 Lappitt first contends there was insufficient evidence to support her conviction for trafficking and suggests the trial court erred by denying her motion for judgment of acquittal pursuant to Rule 20(a), Ariz. R. Crim. P. Lappitt claims we should vacate her conviction because "pawning an item at a pawn shop to be redeemed later is not 'trafficking' in that item" under the statutory definition. See A.R.S. §§ 13-2307(A), 13-2301(B)(3). She argues that pawning an item is a bailment, rather than a sale, because the act does not transfer ownership of the item until the maturity date of the pawn expires. She thus claims she did not "dispose of" the property as required by statute.
¶4 Although Lappitt moved for a Rule 20 judgment of acquittal at trial, she did not make the legal argument she now raises on appeal, although she clearly had the opportunity to do so. She fails to direct us to any part of the record establishing she preserved this argument for appellate review, nor have we found this argument during our review of relevant portions of the record. Lappitt therefore has forfeited this argument and the right to seek relief for all but fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005); see also State v. Zinsmeyer, 222 Ariz. 612, ¶ 27, 218 P.3d 1069, 1080 (App. 2009) (defendant forfeited argument construing a burglary statute by failing to raise it in Rule 20 motion at trial, resulting in fundamental error review), overruled on other grounds by State v. Bonfiglio, 231 Ariz. 371, ¶¶ 6-7, 15, 295 P.3d 948, 950, 951 (2013).
¶5 Fundamental error is "'error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.'" Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d at 607, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). A conviction based on insufficient evidence is fundamental error. State v. Stroud, 209 Ariz. 410, n.2, 103 P.3d 912, 914 n.2 (2005). "We will find reversible error based on insufficient evidence only where there is a complete absence of probative facts to support a conviction." State v. Fernane, 185 Ariz. 222, 224, 914 P.2d 1314, 1316 (App. 1995). To the extent our decision depends on the interpretation of a statute, our review is de novo. Pima Cnty. Human Rights Comm. v. Ariz. Dep't of Health Servs., 232 Ariz. 177, ¶ 12, 303 P.3d 71, 74-75 (App. 2013).
¶6 Lappitt argues that her conviction was not supported by sufficient evidence because pawning an item does not constitute trafficking under the relevant statutes. See §§ 13-2307(A), 13-2301(B)(3). To convict a defendant of second-degree trafficking in stolen property, the state must prove the defendant "recklessly traffic[ked] in the property of another that has been stolen." § 13-2307(A). "Stolen property" is defined as "property of another . . . that has been the subject of any unlawful taking." § 13-2301(B)(2). To "traffic" in such property means to
sell, transfer, distribute, dispense or otherwise dispose of stolen property to another person, or to buy, receive, possess or obtain control of stolen property, with the intent to sell, transfer, distribute, dispense or otherwise dispose of the property to another person.§ 13-2301(B)(3).
¶7 "Our primary purpose in interpreting a statute is to give effect to the legislature's intent," and the best indication of that intent is the plain language of the statute. State v. Kindred, 232 Ariz. 611, ¶ 6, 307 P.3d 1038, 1040 (App. 2013). The plain meaning of these statutes clearly encompasses the exchange of jewelry for money at a pawn shop which, at a minimum, could be categorized as a "transfer" of the jewelry. See Black's Law Dictionary 1636 (9th ed. 2009) ("['Transfer'] embraces every method — direct or indirect, absolute or conditional . . . —of disposing of or parting with property or with an interest in property."). To find, as Lappitt urges, that trafficking cannot be accomplished until legal transfer of ownership is perfected would render superfluous § 13-2301(B)(3)'s broad definition of trafficking, which includes: "to sell, transfer, distribute, dispense or otherwise dispose of stolen property." See State v. Fikes, 228 Ariz. 389, ¶ 6, 267 P.3d 1181, 1183 (App. 2011) (court of appeals may not construe statute in way that would render any other part of the statute "'void, superfluous, contradictory or insignificant'"), quoting State v. Larson, 222 Ariz. 341, ¶ 14, 214 P.3d 429, 432 (App. 2009). Thus, even if the evidence demonstrated Lappitt's pawn transaction was a bailment, her conviction still would be proper under the broad language of the statute.
¶8 Further, this court held in State v. Johnson that pawning a stolen item falls squarely within the statutory definition of "trafficking." 165 Ariz. 555, 556, 799 P.2d 896, 897 (App. 1990). In that case, Johnson argued that "pawning is defined as a bailment of goods," which transfers possession of the goods, rather than ownership rights; it thus fell outside of the statutory definition. Id. A bailment occurs "[w]here personal property is delivered to one party by another in trust for a specific purpose, with the express or implied agreement that the property will be returned or accounted for when the purpose is accomplished." Nava v. Truly Nolen Exterminating of Hous., Inc., 140 Ariz. 497, 500, 683 P.2d 296, 299 (App. 1984). This court found no merit in Johnson's argument and commented, "[a]ppellant obviously 'dispose[d] of' the stolen property when he pawned it." Johnson, 165 Ariz. at 556, 799 P.2d at 897. We agree that trafficking under § 13-2307 encompasses the pawning of stolen goods.
¶9 Lappitt concedes that Johnson rejected the argument that pawning an item constitutes a bailment, but seeks to distinguish her case and asks us to reconsider Johnson's "conclusory holding." Lappitt asserts it was unclear in Johnson whether the incubation (retention) period for the pawned items had expired and that this detail could be dispositive. She refers to the period of time that pawnbrokers in Pima County are required to retain purchased items to argue that "pawning an item is simply not 'disposing of' it . . . until the 'incubation period' . . . passes." She claims Johnson makes sense only if the incubation period had expired, vesting full ownership and control in the pawn shop; if the incubation period had not expired, she argues, the recipient merely possessed the item that was transferred and did not have legal ownership of it.
Lappitt further seeks to distinguish Johnson by arguing that the primary issue in Johnson was the sufficiency of the factual basis for the guilty plea, which "involves a lesser standard of proof" than the sufficiency to support a trial conviction, which is the "issue presented here." That distinction is immaterial because the primary issue on appeal in Johnson was whether pawning an item fell within the statutory definition of "trafficking"—not whether there had been sufficient evidence to support Johnson's conviction. 165 Ariz. 555, 556, 799 P.2d at 897.
¶10 This argument fails, however, as pawning an item is clearly a transfer or disposal of that item under the broad language of the statute, as we discussed above. Further, the evidence here indicates that the transaction at the shop was a pure cash sale, rather than a bailment. When Lappitt went into the store with the jewelry, she signed a "buy slip" recording the purchase, and received $350 for the items. Lappitt does not dispute that she brought stolen goods to the shop, nor that she received money for the items. These facts indicate the transaction was a sale, not a bailment and, as such, it clearly falls within the statutory definition of trafficking.
We assume Lappitt's counsel is aware we reached the same conclusion last year in State v. Funk, No. 2 CA-CR 2011-2016 (memorandum decision filed Oct. 29, 2012), because Lappitt's opening brief is essentially a verbatim reproduction of a brief filed by the Public Defender's Office in that case.
--------
¶11 Furthermore, the purpose of the incubation period is to allow law enforcement officers to locate stolen property that has been transferred to shop owners. Although the manager of the shop where Lappitt sold the jewelry testified that his business observed the incubation period in order to benefit law enforcement, Lappitt did not provide any evidence suggesting she would have been able to retrieve the items. Additionally, Lappitt does not allege or provide evidence to indicate that she ever intended or attempted to retrieve the jewelry, or that the exchange was anything other than a cash sale. See Nava, 140 Ariz. at 500, 683 P.2d at 299. Because we find no error, much less error that is fundamental, we conclude the evidence was sufficient to support Lappitt's conviction for trafficking in stolen property.
Statutory Preemption
¶12 Lappitt argues in the alternative that if we do not vacate her conviction, we should reduce it to false representation under A.R.S. § 44-1630. She argues that the more recent and specific false representation statute, adopted in 1994, controls the more general trafficking statute, added in 1977. See §§ 44-1630, 13-2307(A). She claims the "[t]rafficking [s]tatutes are extremely broad, encompassing most any kind of transfer of stolen goods in any situation, with no mention whatsoever of pawnbrokers," whereas the false representation statute is both "more recent and more specific[ally]" tailored to pawnbrokers, thus controlling the situation here.
¶13 Generally, it is true that a "'more recent, specific statute governs over the older, more general statute.'" In re Manny, 211 Ariz. 301, ¶ 7, 120 P.3d 1111, 1113 (App. 2005), quoting In re Denton, 190 Ariz. 152, 157, 945 P.2d 1283, 1288 (1997). But this principle applies only when there is conflict between the two statutes. In re Denton, 190 Ariz. at 157, 945 P.2d at 1288. A conflict arises only where the essential elements of proof are identical under each statute. State v. Weiner, 126 Ariz. 454, 456, 616 P.2d 914, 916 (App. 1980). When no conflict exists, a criminal offense may be prosecuted under either statute if the underlying facts fall within the prohibition of both. State v. Darby, 123 Ariz. 368, 373, 599 P.2d 821, 826 (App. 1979).
¶14 Trafficking in stolen property in the second degree and false representation are separate offenses with distinct elements of proof, even though each may arise from the same set of facts. A person may be charged with and found guilty of second-degree trafficking by "recklessly traffic[king] in the property of another that has been stolen." § 13-2307(A). To commit false representation, however, a person must
give[] false information or provide[] false representation as to the person's true identity or as to the person's ownership interest in property in order to receive monies or other valuable considerationA.R.S. § 44-1630.
from a pawnbroker, second hand dealer, scrap metal dealer or dealer in precious metals and who receives monies or other valuable consideration from a pawnbroker, second hand dealer, scrap metal dealer or dealer in precious metals.
¶15 The crime of false representation thus focuses on the exchange of information giving rise to the exchange of property, whereas trafficking under § 13-2307(A) concerns the act itself of exchanging stolen property. Further, false representation requires a pawnbroker or similar dealer's involvement, while trafficking encompasses a broad variety of transactions. Compare §§ 13-2301(B)(3), 13-2307 with § 14-1630. Of the two, only § 14-1630 is a strict liability offense. Compare § 13-2307(A) (requiring a reckless state of mind) with A.R.S. § 44-1631. False representation thus does not conflict with nor preempt the trafficking statute.
¶16 If particular conduct could be charged under more than one statute, the prosecutor may determine which statute to apply, State v. Lopez, 174 Ariz. 131, 143, 847 P.2d 1078, 1090 (1992), and has the sound discretion to determine which criminal charges to prosecute. State v. Tsosie, 171 Ariz. 683, 685, 832 P.2d 700, 702 (App. 1992). Because prosecutors have broad latitude in this regard, courts generally cannot interfere with a prosecutor's exercise of discretion unless the prosecutor is "acting illegally or in excess of [his] powers." In re Bond Forfeiture in Cochise Cnty. Cause No. CR201100916, 232 Ariz. 553, ¶ 10, 307 P.3d 980, 983 (App. 2013), referring to State v. Murphy, 113 Ariz. 416, 418, 555 P.2d 1110, 1112 (1976).
¶17 A defendant also may challenge the prosecutor's charging discretion by proving "'objectively that [it] was motivated by a desire to punish him for doing something that the law plainly allowed him to do.'" Tsosie, 171 Ariz. at 685, 832 P.2d at 702, quoting United States v. Goodwin, 457 U.S. 368, 384 (1982). Lappitt has presented no evidence that the prosecutor acted illegally or in excess of his powers, nor has she alleged prosecutorial vindictiveness. We thus find no error in the prosecutor's decision to charge Lappitt with trafficking in stolen property in the second degree.
Lesser-Included Offense
¶18 Finally, Lappitt suggests the trial court erred by failing to instruct the jury on false representation under § 44-1630 which, she argues, is a "lesser-included offense" of trafficking. She requested a jury instruction to that effect, which the court declined to give, finding
[The] [e]lements of [§] 44-1630 are different from the elements under the trafficking in the second degree [statute]. Since there is not that needed overlap in order to be considered a lesser offense, as a matter of law I have to conclude that [§] 44-1630 is not a lesser[-]included offense in the trafficking statute.
¶19 Lappitt did not object below to the trial court's ruling, and she does not directly challenge it on appeal. She nevertheless maintains that "one who commits the crime of [f]alse [r]epresentation to a pawnbroker necessarily commits elements of trafficking in stolen property in the second degree."
¶20 Because Lappitt did not properly preserve this argument below, she has forfeited the right to seek relief in connection with the jury instruction for all but fundamental error. State v. Miles, 211 Ariz. 475, n.8, 123 P.3d 669, 677 n.8 (App. 2005); see also Ariz. R. Crim. P. 21.3(c) ("No party may assign as error on appeal the court's giving or failing to give any instruction . . . unless the party objects thereto before the jury retires to consider its verdict, stating distinctly the matter to which the party objects and the grounds of his or her objection."). Because Lappitt does not allege fundamental error on appeal, we do not address this argument. See Henderson, 210 Ariz. 561, ¶ 20, 115 P.3d at 607 (burden on defendant to demonstrate that fundamental error exists and caused him prejudice).
Conclusion
¶21 For the foregoing reasons, we affirm.