State v. DiGiulio

Decision Date16 June 1992
Docket NumberCA-CR,No. 1,1
Citation835 P.2d 488,172 Ariz. 156
PartiesSTATE of Arizona, Appellee, v. Christopher Andrew DiGIULIO, Appellant. 90-0323.
CourtArizona Court of Appeals

VOSS, Presiding Judge.

Appellant, Christopher Andrew DiGiulio ("defendant") was convicted following a jury trial of trafficking in stolen property with one prior felony conviction, a class 2 felony. The facts are viewed in the light most favorable to sustaining the verdict. State v. Zmich, 160 Ariz. 108, 109, 770 P.2d 776, 777 (1989).


On July 21, 1988, Thomas Martin discovered that the music studio/workshop at his Phoenix home had been burglarized and that his guitar, two drum machines and a stereo receiver had been stolen. Martin suspected that the thief was defendant, who had previously been inside his home to repair electronic equipment. Two days before the burglary, defendant had returned to Martin's house soliciting further repair work and told Martin that he was badly in need of money. Martin allowed defendant to take away a microwave oven that needed repair. Martin gave defendant $23 for the repair, but defendant contacted him the following day and asked for more money. Martin refused that request.

On the day of the burglary, Martin drove to defendant's home and accused him of stealing his property. Defendant denied the accusation. Defendant also claimed that he had returned the microwave oven to Martin's porch early that morning, before the burglary. Since Martin had not found the oven on his porch, defendant speculated that the burglar must have stolen it as well. Martin examined the soles of defendant's athletic shoes and testified that they appeared to match a footprint he found outside his workshop after the burglary.

Because he was desperate to recover his guitar, Martin asked defendant if he would help him locate the instrument. Martin stated he would pay to get it back. Defendant expressed interest in the proposal, and asked Martin for a description of the guitar so that he could make inquiries. The following morning, July 22, defendant contacted Martin and said he had located the guitar and could recover it if he received $350 from Martin. He asked Martin to write him a note authorizing him to do so. The note stated in part: "I have empowered Chris DiGiulio to recover it [the guitar] for me. In consideration of his services he is not to be held responsible or liable to prosecution in the theft." Martin arranged to transfer the money to defendant later in the morning. Martin then contacted police, who arranged to keep defendant under surveillance during the transaction.

Martin delivered the $350 to defendant at a central Phoenix apartment. Defendant asked if police were involved and Martin assured him they were not. The undercover officers observed defendant leave the apartment and go to a nearby electronics business where he recovered Martin's guitar. When he returned to the apartment, he was arrested by police, who found him in possession of $290 of the cash Martin had given him. The owner of the electronics store, Randell Brunt, testified that defendant had come to his store and sold him the guitar for $65 and two drum machines for $50. The next day he returned, and repurchased the guitar for $60 or $65. Defendant admitted selling Martin's property to Brunt on the day of the burglary, but claimed he had agreed to sell it, unaware it was stolen, for a casual acquaintance he met in a neighborhood bar.

Defendant was charged by information with one count of first-degree trafficking and one count of theft, a class 3 felony. At the request of defense counsel, the jury was instructed that the charges were based only on defendant's possession of the guitar on July 22 and on his transfer of the instrument to Martin, and not on the previous transfers to and from Brunt. The jury convicted defendant of trafficking, but acquitted him of theft.

Defendant absconded before the verdicts were read. After he was apprehended in Ohio in 1989 and returned to Arizona, he admitted the state's allegation of a prior felony conviction. Defendant was sentenced to an enhanced presumptive prison term of 10.5 years. He filed a timely notice of appeal, and raises three issues:

1. There is insufficient evidence to support his conviction of trafficking in the first degree;

2. The jury was erroneously instructed on that offense; and

3. The court erred in advising defendant regarding parole eligibility in connection with his admission of prior felony convictions.

a. Sufficiency of the evidence.

Defendant contends that the evidence at trial was insufficient to support his conviction for trafficking. See Ariz.R.Crim.P. 20 1 Defendant's motions for judgment of acquittal were denied at the close of the state's case and at the close of the evidence. A judgment of acquittal is appropriate where there is "no substantial evidence to warrant a conviction." Id.; State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990). Substantial evidence is more than a mere scintilla and is such proof that "reasonable persons could accept as adequate and sufficient to support a conclusion of defendant's guilt beyond a reasonable doubt." Id. In evaluating the evidence, we must view it in the light most favorable to sustaining the verdict. State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). If substantial evidence supports the verdict, it must be upheld. State v. Mosley, 119 Ariz. 393, 402, 581 P.2d 238, 247 (1978).

Ariz.Rev.Stat.Ann. ("A.R.S.") § 13-2307(B) defines trafficking in the first degree:

A person who knowingly initiates, organizes, plans, finances, directs, manages or supervises the theft and trafficking in the property of another that has been stolen is guilty of trafficking in stolen property in the first degree.

"Stolen property" and "traffic" are defined in A.R.S. § 13-2301(B):

2. "Stolen property" means property that has been the subject of any unlawful taking.

3. "Traffic" 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 intent to sell, transfer, distribute, dispense or otherwise dispose of to another person.

"Property of another" is not defined within Chapter 23 nor by the definitions applicable to the criminal code generally. See A.R.S. § 13-105. However, the term is defined within A.R.S. tit. 13, ch. 18, concerning theft offenses. A.R.S. § 13-1801(A)(12) states in pertinent part:

"Property of another" means property which any person other than the defendant has an interest which the defendant is not privileged to infringe, ....

Although the definitions of § 13-1801 are explicitly applicable only to chapter 18 offenses, reference to the statute is appropriate since conviction of trafficking in the first degree requires proof that defendant transferred stolen property. Also relevant is the general definition of theft. A.R.S. § 13-1802(A) provides in pertinent part:

A person commits theft if, without lawful authority, such person knowingly:

* * * * * *

5. Controls property of another knowing or having reason to know that the property was stolen ...

Finally, A.R.S. § 13-1801(A)(2) states that "control" means "to act so as to exclude others from using their property except on the defendant's own terms."

Defendant contends that there was insufficient evidence to support the trafficking conviction because, at the time of the transfer of the guitar to Martin, the property was no longer stolen. He argues that his arrangement with Martin constituted an agency relationship which conferred on him "lawful authority" or "privilege" to control the guitar for purposes of returning it to the owner.

Defendant is correct in asserting that his conviction could not stand if the guitar were not stolen. See State v. Vitale, 23 Ariz.App. 37, 530 P.2d 394 (1975). At worst, he could be convicted of attempted trafficking. State v. Galan, 134 Ariz. 590, 658 P.2d 243 (App.1982). Recovery of property by authorized persons, such as the police, strips it of its stolen character, and precludes conviction based upon its subsequent receipt or possession. Vitale, 23 Ariz.App. at 43, 530 P.2d at 390; United States v. Cawley, 255 F.2d 338, 340 (3d Cir.1958).

State v. Nguyen, 367 So.2d 342 (La.1979), illustrates this principle in a factual setting strikingly similar to that presented here. The victim, a shop owner, lost several items of jewelry in a burglary of his business. Nguyen brought one of the items, a pendant, to the victim to have a chain attached. The victim informed Nguyen that the pendant belonged to him. Nguyen explained that he had obtained the item from his landlady, and agreed to try and locate other stolen items for the victim. He returned one item, a watch, to the shop owner and was prosecuted for receiving stolen property. In reversing Nguyen's conviction, the Louisiana Supreme Court echoed the argument made in this case:

[T]he parties have stipulated facts which clearly show that the defendant acted as the agent of Mr. Van Tran, the owner, and not for himself, in receiving or procuring the watch. Accordingly, at the time the defendant took the watch into his possession it was no longer "stolen" but was in the custody of the owner who had received it through his agent.

367 So.2d at 345.

Despite the similarities of this case to Nguyen, we reject defendant's argument. While defendant was "authorized," in the broad sense, to recover the guitar for Martin, he lacked "lawful" authority to do so. This distinction, not previously drawn by...

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