Opinion
No. 2 CA-CR 2017-0256
01-24-2018
THE STATE OF ARIZONA, Appellee, v. LAWANNA LYNN NABORS, Appellant.
COUNSEL Mark Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief Counsel By Karen Moody, Assistant Attorney General, Tucson Counsel for Appellee Rosemary Gordon Pánuco, Tucson 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NOT FOR PUBLICATION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. 31.19(e). Appeal from the Superior Court in Pinal County
No. S1100CR201602444
The Honorable Lawrence M. Wharton, Judge Pro Tempore
AFFIRMED
COUNSEL Mark Brnovich, Arizona Attorney General
Joseph T. Maziarz, Chief Counsel
By Karen Moody, Assistant Attorney General, Tucson
Counsel for Appellee Rosemary Gordon Pánuco, Tucson
Counsel for Appellant
MEMORANDUM DECISION
Presiding Judge Vásquez authored the decision of the Court, in which Judge Espinosa and Judge Eppich concurred. VÁSQUEZ, Presiding Judge:
¶1 Following a jury trial, Lawanna Nabors was convicted of theft of a means of transportation and false reporting to a law enforcement agency. On appeal, she argues insufficient evidence supports the jury's verdict for theft of a means of transportation. Because we find no error, we affirm.
Factual and Procedural Background
¶2 We view the facts and all reasonable inferences in the light most favorable to upholding the jury's verdicts. State v. Molina, 211 Ariz. 130, ¶ 2 (App. 2005). Early one morning in September 2016, two motorcycles were stolen from the victims' home. One of the motorcycles was operational, while the other was not. A Pinal County deputy sheriff was able to follow the tire marks of the nonoperational motorcycle to a point just beyond the fairway of a nearby golf course. He noticed that a nearby house had a video surveillance system and, upon checking with the owner, discovered that it had recorded Nabors's car towing the nonoperational motorcycle along the street while a man pushed it. Nabors later told deputies that her friend had asked her to help tow his motorcycle, which she had done, but that she had left her friend and the motorcycle on the fairway and drove home.
¶3 A grand jury indicted Nabors with theft of a means of transportation and false reporting to a law enforcement agency. A jury found her guilty as charged, and the trial court sentenced her to a 6.5-year prison term for the theft count and to time served for the false-reporting count. We have jurisdiction over her appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033.
Discussion
¶4 Nabors argues the trial court erred by denying her motion for judgment of acquittal pursuant to Rule 20, Ariz. R. Crim. P., on the charge of theft of a means of transportation. She contends the state presented insufficient evidence that she knew the motorcycle was stolen. We review a court's ruling on a Rule 20 motion de novo. State v. West, 226 Ariz. 559, ¶ 15 (2011).
¶5 We view the evidence in the light most favorable to affirming the jury's verdicts and "will reverse only if there is a complete absence of 'substantial evidence' to support the conviction." State v. Ramsey, 211 Ariz. 529, ¶ 40 (App. 2005), quoting State v. Sullivan, 187 Ariz. 599, 603 (App. 1996). Substantial evidence is that which reasonable jurors "could accept as sufficient to support a guilty verdict beyond a reasonable doubt." State v. Davolt, 207 Ariz. 191, ¶ 87 (2004). We do not distinguish between direct and circumstantial evidence. State v. Borquez, 232 Ariz. 484, ¶ 11 (App. 2013).
¶6 Theft of a means of transportation requires the state to prove, as relevant here, that a person, "without lawful authority," knowingly "[c]ontrol[led] another person's means of transportation knowing or having reason to know that the property is stolen." A.R.S. § 13-1814(A)(5); see also A.R.S. §§ 13-301 to 13303 (defining "accomplice" and criminal liability for conduct of another). "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." A.R.S. §§ 13-2305(1), 13-1814(B).
¶7 The evidence established that the motorcycles were stolen sometime between 3:30 a.m. and around 5 a.m. Because it had recently rained, the responding deputy was able to follow a set of muddy motorcycle tire tracks—accompanied by shoeprints—from the victims' garage through a vacant lot directly across from the victims' house. A short distance further, the tracks met up with tire tracks from a car, and the pair of tracks continued together for approximately thirty yards, then separated. The motorcycle tracks continued onto the golf course fairway and the car tracks continued "alongside the fairway, and just behind the residences that were on the golf course." The surveillance video showed Nabors's car towing the motorcycle along the street on the other side of the fairway at about 5:50 a.m. Inside Nabors's car, deputies found a garage door opener matching the one missing from the victims' home, as well as a pair of muddy shoes that matched the shoeprints found near the victims' garage.
¶8 On the morning of the theft, Nabors told deputies her car was parked outside her friend's house from about 1 a.m. to 6 or 7 a.m. and, "as far as she [knew]," no one had driven it during that time. A few days later, Nabors admitted helping a friend tow a motorcycle on a golf course that morning using rope she had with her, but after it had fallen over, her friend untied it and Nabors drove away. She further stated that although her friend did not have a job, she assumed the motorcycle belonged to him but did not ask. Later that day, Nabors gave a similar account to another deputy, but said her friend had provided the rope and that, as far as she knew, he did not own a vehicle and she had never seen him with a vehicle before. She also said that after she returned from the golf course, she kept her car keys with her and no one else had driven her car.
¶9 At minimum, the evidence shows that Nabors assisted in towing the stolen motorcycle shortly after it was stolen, giving rise to the inference she was "aware of the risk that it had been stolen or in some way participated in its theft." § 13-2305(1); see also State v. Jones, 125 Ariz. 417, 420 (1980) (possession of stolen property two months after theft sufficiently "recent" for statutory inference); see also State v. Ramos, 235 Ariz. 230, ¶ 20 (App. 2014) (inference triggered by possession of stolen property twenty-four hours after theft). Her only explanation—that she believed it belonged to her friend who had no job and had never, to her knowledge, owned a vehicle—was an issue of credibility for the jury, and not this court, to resolve. See State v. Cid, 181 Ariz. 496, 500 (App. 1995); see also State v. Peraza, 239 Ariz. 140, ¶ 29 (App. 2016) (jury free to accept or reject permissible statutory inferences). The remaining evidence—such as the garage door opener and muddy shoes found in Nabors's car, her admission that she had helped her friend tow the motorcycle, her denial that anyone else had driven her car during the relevant time frame, and her changing story to the deputies—was sufficient to permit reasonable jurors to infer that Nabors committed theft of a means of transportation. See State v. Thomas, 104 Ariz. 408, 411 (1969) (jury, not appellate court, weighs evidence and chooses between contradictory versions); see also Borquez, 232 Ariz. 484, ¶ 11; Davolt, 207 Ariz. 191, ¶ 87.
¶10 Nabors, however, contends that "[t]he only evidence tying [her] to the stolen motorcycle was a surveillance video showing her car towing the bike on the street in front of the house that had the cameras." But, as noted above, Nabors admitted to helping tow the stolen motorcycle and there was ample circumstantial evidence of her involvement. Substantial evidence supports the jury's verdict and the trial court did not err in denying Nabors's Rule 20 motion. See Ramsey, 211 Ariz. 529, ¶ 40.
To the extent Nabors suggests the state failed to prove she assisted in towing the stolen motorcycle and not a different motorcycle, we note that Nabors never disputed that she had helped her friend tow the stolen motorcycle. Rather, her defense was that she did not know the motorcycle was stolen when she helped tow it. Because this argument was not raised below, and Nabors does not argue that any fundamental error related to it occurred or make any other meaningful argument on the issue, we do not address it further on appeal. See State v. Henderson, 210 Ariz. 561, ¶¶ 19-20 (2005) (arguments not raised below waived on appeal absent fundamental, prejudicial error); see also State v. Bolton, 182 Ariz. 290, 298 (1995) ("Failure to argue a claim on appeal constitutes waiver of that claim."); State v. Moreno-Medrano, 218 Ariz. 349, ¶ 17 (App. 2008) (failure to argue fundamental error waives review of issue entirely). --------
Disposition
¶11 For the foregoing reasons, we affirm Nabors's convictions and sentences.