State v. Moran

• Decision Date: 29 July 2015
• Docket Number: No. 2 CA-CR 2014-0204,2 CA-CR 2014-0204
• Citation: State v. Moran, No. 2 CA-CR 2014-0204 (Ariz. App. Jul 29, 2015)
• Parties: THE STATE OF ARIZONA, Appellee, v. DANIEL JAMES MORAN, Appellant.
• Court: Arizona Court of Appeals

THE STATE OF ARIZONA, Appellee, v. DANIEL JAMES MORAN, Appellant.

No. 2 CA-CR 2014-0204

ARIZONA COURT OF APPEALS DIVISION TWO

July 29, 2015

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES.

NOT FOR PUBLICATION

SeeAriz. R. Sup. Ct. 111(c)(1);Ariz. R. Crim. P. 31.24.

Appeal from the superior Court in Pinal County

No. S1100CR201301097

The Honorable Henry G. Gooday Jr., Judge

AFFIRMED

COUNSEL

Mark Brnovich, Arizona Attorney General

Joseph T. Maziarz, Section Chief Counsel, Phoenix

By Jonathan Bass, Assistant Attorney General, Tucson

Counsel for Appellee

Law Firm of Richard Luff, LLC, Tucson

By Richard Luff

Counsel for Appellant

MEMORANDUM DECISION

Presiding Judge Vásquez authored the decision of the Court, in which Judge Howard and Judge Brammer¹ concurred.

VÁSQUEZ, Presiding Judge:

¶1 After a jury trial, Daniel Moran was convicted of attempted trafficking in stolen property and criminal damage.The trial court sentenced him to a mitigated, 2.5-year prison term for trafficking and time served for criminal damage.On appeal, Moran argues the court erred by denying his motion for a judgment of acquittal, his request for jury instructions on abandonment of property, and his motion to suppress his statements to law enforcement officers.For the reasons stated below, we affirm.

Factual and Procedural Background

¶2We view the facts in the light most favorable to sustaining Moran's convictions.SeeState v. Brown, 233 Ariz. 153, ¶ 2, 310 P.3d 29, 32(App.2013).One morning in March 2011, as T.M. drove to work, he stopped to tend to a cow stuck in a cattle guard.As T.M. waited for the rancher who owned the cow to arrive, Moran drove up in a pickup truck with a trailer attached.The trailer was loaded with torches, winches, and pry bars.T.M. asked Moran what he was doing, and Moran replied that he was "scouting javelina."Because javelina season was over, he had recently "had things stolen," and he could see a "small chop shop in the back of [Moran's] truck," T.M. told Moran to "turn around and leave."

¶3 Several hours later, T.M. smelled something burning.He drove across the property and saw Moran "cutting up" a half-million dollar steel structure that T.M. described as a "furnace."

T.M. called 9-1-1 to report a "theft in progress."Pinal County Sheriff's Deputies Hughey and Muszala were the first to respond.They met T.M. at the gated fence, and T.M. explained that his family had mining claims to the property and that the furnace belonged to him.The furnace was fenced off, and the property had a "No Trespassing" sign.T.M. used his key to unlock the gate, and the deputies drove to Moran's location.

¶4 As they approached, the deputies saw Moran "actively cutting [I-beams] with a lit torch."They also observed various "I-beams and cross members . . . lined up to be loaded onto [Moran's] trailer."Hughey asked Moran what he was doing, and Moran answered that he was "cutting the scrap metal."Hughey then asked what he was going to do with the metal, to which Moran replied he"was selling it to . . . a metal[] yard in the Phoenix area."Moran admitted he did not know whose property it was but thought it was state land.He also stated that he did not have permission from anyone to remove the metal.Moran subsequently was arrested.

¶5 A grand jury indicted Moran for attempted trafficking in stolen property in the first degree, theft, and criminal damage.The jury acquitted him of theft but found him guilty of the two other charges.The trial court sentenced him as described above.This appeal followed.We have jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1),13-4031, and13-4033(A).

Motion for a Judgment of Acquittal

¶6 Moran contends the trial court erred by denying his motion for a judgment of acquittal for attempted trafficking in stolen property in the first degree.Pursuant to Rule 20(a), Ariz. R. Crim. P., "the court shall enter a judgment of acquittal . . . if there is no substantial evidence to warrant a conviction.""Substantial evidence is 'evidence that reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt.'"State v. Fimbres, 222 Ariz. 293, ¶ 4, 213 P.3d 1020, 1024(App.2009), quotingState v. Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d 912, 913-14(2005).We will reverse a conviction "only if 'there is a complete absence of probative facts to support [the verdict].'"State v. Carlisle, 198 Ariz. 203, ¶ 11, 8 P.3d 391, 394(App.2000), quotingState v. Mauro, 159Ariz. 186, 206, 766 P.2d 59, 79(1988).We review the denial of a motion for a judgment of acquittal, as well as the sufficiency of the evidence to support a conviction, de novo.State v. Harm, 236 Ariz. 402, ¶ 11, 340 P.3d 1110, 1114(App.2015).

¶7Section 13-2307(B), A.R.S., provides that "[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."In this context, "'[t]raffic' 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."A.R.S. § 13-2301(B)(3).In addition,

A person commits attempt if, acting with the kind of culpability otherwise required for commission of an offense, such person:

1.Intentionally engages in conduct which would constitute an offense if the attendant circumstances were as such person believes them to be; or

2.Intentionally does or omits to do anything which, under the circumstances as such person believes them to be, is any step in a course of conduct planned to culminate in commission of an offense[.]

A.R.S. § 13-1001(A).

¶8 Moran argues there was insufficient evidence to show "the property was stolen."However, as the state points out, "the offense of attempted trafficking in stolen property does not require such proof."SeeState v. DiGiulio, 172 Ariz. 156, 159, 835 P.2d 488, 491(App.1992)(defendant could be convicted of attempted trafficking if property "not stolen," but trafficking conviction "couldnot stand");State v. Galan, 134 Ariz. 590, 593, 658 P.2d 243, 246(App.1982)(describing trafficking offense with which defendant charged as one "the legislature has simply chosen to define as an attempt when the property is not actually stolen");cf.State v. Vitale, 23 Ariz. App. 37, 43-44, 530 P.2d 394, 400-01(1975)(substantive crime of receiving stolen property "cannot be committed unless the property is actually stolen," but legal impossibility does not bar attempt).

¶9 Moran nevertheless points to his acquittal of the theft charge to argue that "the jury found . . . the structure was not stolen."But Moran was charged with attempted trafficking, which does not require a completed offense, whereas a charge of theft does.SeeMejak v. Granville, 212 Ariz. 555, ¶ 20, 136 P.3d 874, 878(2006)("An attempt is substantively different from a completed crime . . . .").And, here, Moran was arrested before he had an opportunity to remove the property from the area.In any event, "[w]ell-settled Arizona law permits inconsistent verdicts."Gusler v. Wilkinson, 199 Ariz. 391, ¶ 25, 18 P.3d 702, 707(2001).

¶10 Moreover, we disagree with Moran that "there [wa]s no testimony offering proof that [T.M.] actually owns the property."²SeeA.R.S. §§ 13-2301(B)(2)("'Stolen property' means property of another . . . ."), 13-1801(A)(13)("'Property of another' means property in which any person other than the defendant has an interest on which the defendant is not privileged to infringe . . . .").At the time of the incident, T.M. reported to the deputies that thefurnace was his.And, despite acknowledging that the state actually owned the land, T.M. unequivocally testified that "[w]hat is standing on that property belong[s] to [his] family."Notably, T.M. had a key to the gate blocking access to the furnace.Such evidence is sufficient to show the furnace belonged to T.M.Contrary to Moran's suggestion, the state was not required to present additional evidence verifying T.M.'s testimony.SeeState v. Blevins, 128 Ariz. 64, 67, 623 P.2d 853, 856(App.1981)(state not required "to negate every conceivable hypothesis of innocence").

¶11 Moran also asserts his comments to the deputies show he"believed [the furnace] was abandoned."He further contends evidence of that belief "negate[s]"the state's proof that he knew the property was stolen and knowingly was attempting to traffic it.We disagree.

¶12 Evidence admitted at trial established T.M. had signaled to Moran that the furnace was not abandoned.T.M. testified that, when he first encountered Moran, T.M. directed him to "turn around and leave."Referring to the "small chop shop in the back of [Moran's] truck," T.M. also told Moran, "It's obvious what you're up to."In addition, T.M. explained Moran had crossed a fence, which had a locked gate and a "No Trespassing" sign, before reaching the furnace.³This evidence counters Moran's purported belief that the furnace was abandoned, and the jury by its verdict accepted it.SeeState v. Munoz, 114 Ariz. 466, 469, 561 P.2d 1238, 1241(App.1976)(although victim's and defendant's versions of events conflicted, jury believed victim, and victim's testimony sufficient to support conviction);see alsoState v. Williams, 209 Ariz. 228, ¶ 6, 99 P.3d 43, 46(App.2004)("Although the record contains some conflicting evidence, it was for the jury to weigh the evidence and determine the credibility of the witnesses.").

¶13 Moran also argues the trial court erred by denying his motion for a judgment of acquittal because "there was no proof ofcorpus delicti."However, Moran did not present this argument below.SeeState v. Lopez, 217 Ariz. 433, ¶ 4, 175 P.3d 682, 683(App.2008)(...