State v. Lappitt
| Decision Date | 26 November 2013 |
| Docket Number | No. 2 CA-CR 2012-0497,2 CA-CR 2012-0497 |
| Parties | THE STATE OF ARIZONA, Appellee, v. ASHLEY ELIZABETH LAPPITT, Appellant. |
| Court | Arizona Court of Appeals |
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NOT FOR PUBLICATION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
The Honorable Michael O. Miller, Judge
AFFIRMED
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
Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.
¶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.
¶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).
¶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 thatpawning 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) (), 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).
¶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) (), 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). Inthat 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.1 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.
¶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.2 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.
¶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...
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