State v. Para
| Decision Date | 25 May 1978 |
| Docket Number | CA-CR,Nos. 1,s. 1 |
| Citation | 583 P.2d 1346,120 Ariz. 26 |
| Parties | STATE of Arizona, Appellee, v. Frank Robert PARA, Jr., Appellant. 2165, 1 2483. |
| Court | Arizona Court of Appeals |
Appellant was found guilty of seven counts of receiving stolen property (A.R.S. § 13-621). In this appeal, he argues that the trial court committed several errors in the course of his jury trial. Since we hold that the jury instructions in this case require a reversal of appellant's conviction, we have no need to consider appellant's other assertions of error.
The evidence most favorable to the judgment is as follows: In October or November of 1974, Mr. Robert McCormick noticed approximately 12 stray horses on his ranch in Maricopa County. He called the Livestock Sanitary Board and described the brand that appeared on some of the horses. After learning that the brand was registered to appellant, McCormick called appellant's stables in Glendale and spoke to an employee of the appellant, requesting that the horses be removed from his ranch.
A few days later, appellant and his general manager, Leonard DesMarais, went to the McCormick ranch. They managed to herd the horses into a group, but failed to control them, and the horses scattered again. While they were in a group, however, appellant had an opportunity to examine the horses from a distance of ten to fifteen feet. When appellant and DesMarais lost the horses, they returned to speak with McCormick. Appellant informed McCormick and DesMarais that the horses were his, and told McCormick that someone from appellant's John Galt Stables would pick up the horses if McCormick could corral them.
McCormick ultimately captured nine horses. He phoned DesMarais, who transported the horses from McCormick's ranch to appellant's John Galt Stables in two trips. Although he did not specifically inspect the horses for brands, DesMarais noticed on the second trip that two horses bore appellant's brand.
The morning after DesMarais had brought the final load of horses to John Galt Stables, appellant once again viewed the horses as a group. He instructed DesMarais to begin renting these horses to the public immediately. 1 Subsequently, he refused to allow DesMarais to brand or to sell any of the nine horses. DesMarais testified that these nine horses were the only ones that appellant had ever refused to sell. Appellant continued to visit the stable about once a week.
Several witnesses testified that the seven horses not carrying the appellant's brand were markedly different physically from appellant's other horses. Some of the seven were shod, while none of appellant's other horses were shod. There was a pinto with a disfigured right eye. Another horse was lame. A third horse carried a foreign brand. All the horses were noticeably better fed and more alert than appellant's other horses.
The distinguishing physical characteristics of the horses, coupled with appellant's unusual instructions regarding the horses, made DesMarais suspect that the horses did not belong to appellant. When DesMarais questioned appellant's ownership, DesMarais testified that appellant "told me if they weren't his horses, that I would fall with him if he would get charged with anything."
The pinto with the damaged eye died about a week before December 17, 1974. When informed by DesMarais of the horse's death, appellant instructed DesMarais to have an autopsy performed, then bury the horse. According to DesMarais, after the autopsy, the burial was begun by DesMarais, but finished by the appellant. DesMarais testified that normally dead horses were sold to a rendering company. In order for a rendering company to accept a horse's body, the owner first had to furnish proof of ownership. Most of the horses that died on the John Galt Stables, both before and after the death of the pinto, were sold to a rendering company.
About the same time that McCormick noticed the horses on his land, Robert Lockett discovered seven horses missing from his ranch. Six of the horses were owned by Lockett, the seventh was owned by Lockett's manager, Gary Mallory. On December 14, 1974, Lockett visited John Galt Stables, where he described the missing horses to appellant. Appellant denied any knowledge of Lockett's stray horses. Lockett then went to McCormick and inquired about his horses. McCormick told Lockett that his horses sounded similar to the horses DesMarais had taken to appellant's stables.
On December 17, 1974, Lockett, accompanied by his son and Officer Robert Nordtome of the Livestock Sanitary Board, returned to John Galt Stables. While Lockett and his son searched among appellant's stock for the missing horses, Officer Nordtome questioned appellant regarding the ownership of the seven horses. Appellant initially contended that he could produce ownership papers. He agreed to release the horses to Lockett only after Nordtome pointed out that one of the horses bore Lockett's brand. Lockett recovered six of the seven on December 17. Despite having buried the pinto a week before, appellant and DesMarais both asserted that the pinto was not on the ranch.
In September of 1975, DesMarais notified a veterinarian that the pinto was buried at the stables. The pinto was uncovered, and subsequently identified by Lockett and Mallory.
By information filed on October 17, 1975, appellant was charged with six counts of grand theft. This case proceeded to a trial by jury on February 17, 1976. Ten days later, the jury reported that it was hopelessly deadlocked. The court declared a mistrial and reset the matter for trial.
On March 9, 1976, a grand jury undertook an investigation of appellant. This investigation culminated in an indictment charging appellant with the commission of seven counts of receiving stolen property. The indictment recited a separate count for each horse taken to appellant's ranch. The jury in this case returned a guilty verdict on all counts. After appellant's motion for a new trial was denied, he brought this appeal.
The indictment charged appellant with violating A.R.S. § 13-621(A). That section states:
A person who, for his own gain, or to prevent the owner from again possessing the property, buys, sells, possesses, conceals or receives personal property, knowing or having reason to believe that the property is stolen, is guilty of a misdemeanor, if the value of the property is less than one hundred dollars, and is guilty of a felony if the value of the property is one hundred dollars or more.
This court has stated that a prima facie case under this statute consists of three elements: (1) receiving stolen property, (2) with guilty knowledge, and (3) intent either to deprive the owner of possession or to obtain it for the defendant's own gain. State v. Butler, 9 Ariz.App. 162, 166, 450 P.2d 128, 132 (1969). The first element of the crime requires proof not only that the defendant received the property, but also that the property was in fact stolen. See State v. Carner, 25 Ariz.App. 156, 158, 541 P.2d 947, 949 (1975); State v. Vitale, 23 Ariz.App. 37, 43, 530 P.2d 394, 400 (1975). In this case, the defense contested the state's allegations in regard to each of the three elements.
One of the main issues was whether the horses were actually ever stolen. The manner in which the horses came to be missing from Lockett's ranch does not imply a theft at that point in time. Lockett let the horses out on range land to graze for an extended period of time. Gradually, he became aware that the horses were no longer on his ranch. The state offered no evidence showing that the only way the horses could have gotten to McCormick's ranch was by theft. The only reasonable inference from the evidence presented is that the horses simply strayed onto McCormick's ranch. Thus, the theft must have occurred at some other time.
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