State v. Sherman

Decision Date18 March 2013
Docket Number2 CA-CR 2012-0040
PartiesTHE STATE OF ARIZONA, Appellee, v. DAVID HENRY SHERMAN, Appellant.
CourtArizona Court of Appeals

NOTICE: THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24

MEMORANDUM DECISION

Not for Publication

Rule 111, Rules of

the Supreme Court

APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

Cause Nos. CR20110343001 and CR20111023001 (Consolidated)

Honorable Jose H. Robles, Judge Pro Tempore

REVERSED IN PART, VACATED IN PART, AND REMANDED

Thomas C. Horne, Arizona Attorney General

By Kent E. Cattani, Joseph T. Maziarz, and

Amy Pignatella Cain

Tucson

Attorneys for Appellee

Lori J. Lefferts, Pima County Public Defender

By Rebecca A. McLean

Tucson

Attorneys for Appellant

ESPINOSA, Judge.

¶1 After a jury trial, appellant David Sherman was convicted of four counts of trafficking in stolen property. The trial court sentenced him to concurrent, mitigated, 4.5-year prison terms. Counsel filed a brief in compliance with Anders v. California, 386 U.S. 738 (1967), avowing she had reviewed the entire record and found no arguably meritorious issue to raise on appeal and asking that we search the record for error.

¶2 In compliance with State v. Clark, 196 Ariz. 530, ¶ 32, 2 P.3d 89, 97 (App. 1999), counsel provided "a detailed factual and procedural history of the case with citations to the record, [so] this court can satisfy itself that counsel has in fact thoroughly reviewed the record." Sherman did not file a supplemental, pro se brief. In our review of the record pursuant to Anders, we identified an arguable issue of fundamental error and asked the parties to file supplemental briefs addressing whether the state had "establish[ed] by sufficient evidence that defendant David Sherman, and not some other person, pawned the same Global Positioning System (GPS) Units identified at trial as stolen from named individuals, as charged in the indictments." See Penson v. Ohio, 488 U.S. 75, 83-84 (1988) (briefing on arguable issue required); State v. Windsor, 224 Ariz. 103, n.2, 227 P.3d 864, 865 n.2 (App. 2010) (conviction based on insufficient evidence constitutes fundamental error). We now reverse in part, vacate in part, and remand.

Background

¶3 Indictments charging Sherman with trafficking in stolen property alleged, in separate counts, that he had recklessly trafficked in stolen GPS units belonging to J.B., B.W., L.M., G.E., and another victim, D.S.1 Viewed in the light most favorable toupholding the jury's verdicts, see State v. Tamplin, 195 Ariz. 246, ¶ 2, 986 P.2d 914, 914 (App. 1999), the evidence established that Pima County Sheriff's Department (PCSD) Detective Heather Lappin had been investigating unsolved burglaries of automobiles when she identified three or four related individuals, including David Sherman, who had pawned numerous GPS and iPod devices. Lappin testified she and other PCSD officers then went to pawn shops and "ask[ed] the clerks to bring [them] everything that those particular people had pawned" and, in the case of GPS units, attempted to identify possible owners by information programmed in the units themselves (such as "the home address").

¶4 Lappin explained how she personally had identified J.B. as the owner of one of the GPS units she had examined in this manner. Even though J.B. had not programmed his unit with his specific home address, but instead had entered an address for the corner of his street, Lappin said she requested a list of reported automobile break-ins occurring in November or December 2010 and "narrowed it down" to J.B., based on his address and his report that a GPS unit had been stolen from his vehicle. Lappin then contacted J.B. and asked him about other information his GPS unit would contain. He gave her the name of his chiropractor and another name he had programmed into his "favorites" file, and, based on this information, Lappin determined one of the pawned GPS units she had examined had been stolen from J.B.¶5 According to Lappin, PCSD officers filed a report for a similar case in the Tucson Police Department's jurisdiction. The PCSD officers also conveyed information to Detective Figueroa of the Marana Police Department for three GPS units they suspected had been stolen from Marana, suggesting that he perform similar research on those units. She was "not positive" that Detective Figueroa had followed the same procedure to identify possible owners of three of the pawned GPS units examined by PCSD, but "he could have." Lappin made no mention of B.W., L.M., or G.E. by name in her testimony.

¶6 Lappin also testified she had interviewed Sherman after advising him of his rights pursuant to Miranda2 and explaining her reasons for executing a search warrant at his residence. Sherman first told her he "had no idea" GPS units he had pawned had been stolen and he had pawned the items at the request of his sister's boyfriend. But he eventually acknowledged he began to have "suspicions they were stolen" after he had pawned "probably about ten" GPS units.

¶7 J.B., B.W., L.M., and G.E. each testified that a GPS unit had been stolen from his vehicle, that he had been notified by law enforcement that the unit had been located, and that he had identified the unit based on personal, programmed information; three of the four witnesses said their units were made by Garmin. J.B.'s testimony was consistent with Lappin's account; he stated someone from the sheriff's department telephoned him about a GPS unit that had been found and, suspecting it was the unit hehad reported stolen, had been able to identify him as the unit's true owner because its "favorites" file contained the name of his chiropractor.

¶8 Various pawn shop employees testified Sherman had pawned six Garmin GPS units between December 10 and 17, 2010, and originals or photocopies of pawn slips signed by Sherman were admitted into evidence through their testimony. Exhibit 39 consisted of photocopies of police and pawn shop tickets for a "Garmin Nuvi 680" GPS unit Sherman pawned on December 15, 2010.3 The copy of the police ticket, the first page of Exhibit 39, also contained handwritten notes—added after the copy had been made—reflecting the superior court case number, J.B.'s full name, and the name "Andre" written above the store clerk's identification number. After the state moved to admit Exhibit 39 through the testimony of Andre W., a pawn shop employee, Sherman's attorney asked the witness if he had written his own name or J.B.'s name on the exhibit, and Andre responded he had not. Sherman's attorney then objected to the admission of Exhibit 39 without stating specific grounds, and the trial court admitted the exhibit over his objection.

¶9 The five verdict forms required the jury to determine whether Sherman was guilty or not guilty of trafficking in stolen property in the second degree as alleged in the indictment, with each form separately and specifically identifying the stolen property as a "GPS, belonging to" one of the victims who had testified, J.B., B.W., L.M., G.E., or D.S.,respectively. The jury found Sherman guilty of trafficking in GPS units stolen from J.B., B.W., L.M., and G.E., and not guilty of trafficking with respect to the one stolen from D.S.

Discussion

¶10 In considering the sufficiency of evidence, we must test it against "the statutorily required elements of the offense." State v. Pena, 209 Ariz. 503, ¶ 8, 104 P.3d 873, 875 (App. 2005). Sherman was charged under A.R.S. § 13-2307(A), which provides, "A person who recklessly traffics in the property of another that has been stolen is guilty of trafficking in stolen property in the second degree." "Stolen property" and "[t]raffic" are defined in A.R.S. § 13-2301(B) as follows:

2. "Stolen property" means property of another as defined in [A.R.S.] § 13-1801 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 the intent to sell, transfer, distribute, dispense or otherwise dispose of the property to another person.

In his supplemental brief filed pursuant to our order, Sherman argues his convictions must be "reversed and [the case] dismissed" because "no testimony or evidence was adduced" to establish that any of the GPS units pawned by Sherman had been stolen from J.B., B.W., L.M., or G.E., because no witness had connected the pawn slips Sherman had signed with the particular GPS units stolen from these victims. And Sherman contends the significance of J.B.'s name handwritten on the first page of Exhibit 39 was a matter of"conjecture or speculation" because "[n]o one testified as to how the name [J.B.] came to be on that pawn slip" and "[n]o trial testimony linked this particular GPS device to any GPS device lost by any of the victims."

¶11 Relying on State v. Reyes, 146 Ariz. 131, 133, 704 P.2d 261, 263 (App. 1985), the state argues "trafficking in stolen property is not a victim-specific crime" and "any competent evidence will suffice" to prove property has been stolen. Alternatively, the state contends that, if it "was required to link up each GPS unit to a named victim," it "presented overwhelming, albeit circumstantial, evidence that Sherman pawned the stolen GPS units, belonging to the named individuals, as charged in the indictments." In support of this second argument, the state cites evidence that Sherman had pawned Garmin GPS units "[c]lose in time" to the thefts of Garmin GPS units stolen from J.B., B.W., L.M., or G.E., and argues Lappin "used the case of J.B." in her testimony "to explain how the police connected the pawns that Sherman engaged in with the rightful owners of the GPS units."

¶12 This court reviews claims of insufficient evidence "only to determine whether substantial evidence supports the...

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