Opinion
2 CA-CR 2012-0040
03-18-2013
THE STATE OF ARIZONA, Appellee, v. DAVID HENRY SHERMAN, Appellant.
Thomas C. Horne, Arizona Attorney General By Kent E. Cattani, Joseph T. Maziarz, and Amy Pignatella Cain Lori J. Lefferts, Pima County Public Defender By Rebecca A. McLean
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Not for Publication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. Viewed in the light most favorable to upholding 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 Miranda 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 he had 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. 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.
The jury acquitted Sherman of trafficking with respect to a GPS unit stolen from D.S. Accordingly, in this memorandum decision we address only the evidence relevant to the jury's verdicts that Sherman is guilty of trafficking in stolen GPS units belonging to J.B., B.W., L.M., and G.E.
Miranda v. Arizona, 384 U.S. 436 (1966).
At trial, pawn shop employees distinguished between "police ticket" records of transactions that are sent to law enforcement and copies of pawn information retained by the store and given to the customer.
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.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 jury's verdict[s]." State v. Cox, 217 Ariz. 353, ¶ 22, 174 P.3d 265, 269 (2007). "Substantial evidence has been described as 'more than a mere scintilla' of evidence; but it nonetheless must be evidence that 'reasonable persons could accept as sufficient to support a guilty verdict beyond a reasonable doubt.'" State v. Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d 912, 913-14 (2005), quoting State v. Hughes, 189 Ariz. 62, 73, 938 P.2d 457, 469 (1997). Substantial evidence "may be either circumstantial or direct." State v. Henry, 205 Ariz. 229, ¶ 11, 68 P.3d 455, 458 (App. 2003). We will reverse a conviction "only if 'there is a complete absence of probative facts to support [the jury's] conclusion.'" State v. Carlisle, 198 Ariz. 203, ¶ 11, 8 P.3d 391, 394 (App. 2000), quoting State v. Mauro, 159 Ariz. 186, 206, 766 P.2d 59, 79 (1988).
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.
Evidence of "Stolen Property" Required
¶13 As an initial matter, we find the state's reliance on Reyes misplaced. There, the defendant had been charged with attempted trafficking in stolen property "not on the theory that the property was stolen but instead on the theory that the defendants believed it to be stolen." Reyes, 146 Ariz. at 133, 704 P.2d at 263. Reyes argued the evidence did not support the trial court's instruction that "[p]roof of purchase or sale of stolen property at a price substantially below its fair market value . . . gives rise to an inference that the person buying or selling the property was aware of the risk that it had been stolen," because the "police had been unable to find the victim" of a theft. 146 Ariz. at 133, 704 P.2d at 263. This court acknowledged the instruction "may have been inappropriate" and stated, "Tailored to the facts . . . , the instruction would be that sale of property at a price substantially below its fair market value permits an inference that the seller was aware of the risk it was stolen." Id. But we found Reyes had objected to such a modification when proposed by the state and so had waived any claim of error on the ground that the instruction should have been modified to conform to the evidence. Id. We further stated that, under the facts of that case, "the admissions of the parties coupled with the possession of $2,300 worth of auto parts by those not using them in their trade would support a finding that the parts were stolen." Id. ¶14 The most obvious distinction between Reyes and this case is that trafficking in stolen property, the offense charged against Sherman, requires proof that the trafficked property is stolen, while attempted trafficking in stolen property does not. See State 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 "could not stand"); State v. Galan, 134 Ariz. 590, 593, 658 P.2d 243, 246 (App. 1982) ("legislature has simply chosen to define" as attempted trafficking transfer of non-stolen property with "reckless state of mind as to [its] status"); 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 attempt requires only defendant's belief, albeit mistaken, in stolen nature of property received). ¶15 Moreover, we need not consider whether the facts here could give rise to an inference similar to that approved in Reyes, because in this case, as in State v. Rivera, 226 Ariz. 325, ¶ 4, 247 P.3d 560, 562-63 (App. 2011), both the indictments and the verdict forms specifically alleged that Sherman had trafficked in GPS units stolen from J.B., B.W., L.M., and G.E. In Rivera, we rejected the state's argument that the defendant "could be convicted if he intentionally shot at any person or occupied structure," "even though the indictment and verdict form specified Rivera had shot at R.C." Id. ¶ 5. We noted the state had provided no authority suggesting "incorrect jury instructions implicitly could amend the indictment or negate the specific jury finding that Rivera was guilty of drive-by shooting at R.C." Id. As in Rivera, "'[t]he . . . grand jury indictment limits the trial to the specific charge or charges stated . . . in the indictment,'" and amendment is permitted "'only to correct mistakes of fact or remedy formal or technical defects.'" Id. ¶ 6, quoting Ariz. R. Crim. P. 13.5(b) (omissions in Rivera). In light of the specific jury findings that Sherman trafficked in GPS units stolen from J.B., B.W., L.M., and G.E., we reject the state's assertion that it needed only to establish that Sherman recklessly trafficked in property stolen from "someone." ¶16 Similarly, although the state is correct that Lappin "used the case of J.B." to illustrate her investigative methods, it is mistaken that her testimony "explain[ed] how the police connected the pawns that Sherman engaged in with the rightful owners of the GPS units." Lappin testified in a general manner about investigating items pawned by three or four related individuals and examining "everything that those particular people had pawned," and explained, in particular, how she had traced one of those units to J.B. Thus, although witnesses testified Sherman had pawned some GPS units, as reflected in pawn slips admitted in evidence, and J.B., B.W., L.M., and G.E. testified their GPS units had been stolen and later recovered by law enforcement, the state failed to elicit testimony from Lappin or any other witness to establish any GPS unit Sherman pawned had been the same unit stolen from J.B., B.W., L.M., or G.E. However, Lappin's specific testimony about tracing a pawned GPS unit to J.B., coupled with the handwriting found on Exhibit 39, requires us to consider Sherman's conviction for this count separately from the others.
The acquittal on the charge that Sherman had trafficked in a GPS unit stolen from D.S., who had also been named in the indictment, suggests the jury understood its role as limited to whether Sherman had trafficked in property stolen from those individuals named in the indictments.
The state could, for example, have simply asked J.B., B.W., L.M., and G.E. to identify their individual GPS units by their contents, or presented evidence that serial numbers for those units matched the serial numbers on pawn slips signed by Sherman and admitted into evidence. It is notable that during trial, a handwritten jury question was submitted to the court asking "How do they know these are their GPS devi[c]es that w[ere] recovered?" The record indicates the question was not answered.
GPS Units Belonging to B.W., L.M., and G.E.
¶17 In contrast to her specific testimony about her investigation of the pawned GPS unit belonging to J.B., Lappin never referred to B.W., L.M., or G.E. at all, but only alluded to unidentified names on an unidentified list. This is not surprising; although Lappin may be credited with much of the original investigative work, she made clear that she had not been involved in tracing pawned GPS units to B.W., L.M., or G.E., and nothing in her testimony established Sherman had pawned GPS units stolen from these victims. We agree with Sherman that the state presented no other evidence to support such a finding. ¶18 We find little merit to the state's suggestion that sufficient circumstantial evidence to support Sherman's convictions may be found in evidence that he pawned some Garmin GPS units near the time that the specific Garmin GPS units belonging to J.B., B.W., L.M., and G.E. had been stolen. We conclude such evidence does not legally and logically support an inference that the GPS units Sherman pawned were the same units stolen from these victims. See State v. Riley, 12 Ariz. App. 336, 337, 470 P.2d 484, 485 (1970) ("Circumstantial evidence is the proof of the existence of some fact from which fact the existence of the thing in issue may be legally and logically inferred."). As Lappin testified, without serial numbers or other identifiers, "you can't really make sure" if, for example, "the Magellan GPS that was, you know, stolen" is the same as "the one that's pawned." The same would appear true for the Garmin GPS units at issue here. "Criminal convictions may rest solely on circumstantial proof," State v. Webster, 170 Ariz. 372, 374, 824 P.2d 768, 770 (App. 1991), "but mere '[s]peculation concerning possibilities is an insufficient basis' to sustain a conviction." State v. Garcia, 227 Ariz. 377, ¶ 9, 258 P.3d 195, 197 (App. 2011), quoting State v. Mathers, 165 Ariz. 64, 71, 796 P.2d 866, 873 (1990) (alteration in Garcia); see also State v. Orendain, 188 Ariz. 54, 56, 932 P.2d 1325, 1327 (1997) ("[E]ach element of the crime, including elements established by inferences drawn from circumstantial evidence, must be proven beyond a reasonable doubt."). We conclude the evidence was insufficient to prove Sherman pawned GPS units stolen from B.W., L.M., and G.E.; we therefore reverse those convictions and vacate the associated sentences.
J.B.'s GPS Unit
¶19 For the same reasons discussed above, Lappin's testimony, standing alone, would not have been sufficient to support the jury's verdict that Sherman was guilty of trafficking in stolen property "to wit[:] GPS, belonging to [J.B.]" as stated in the indictment. At most, Lappin's testimony established the GPS unit she tracked to J.B. had been pawned by one of those three or four "particular people" she had identified, and so might have been pawned by Sherman. But that testimony must be considered along with Exhibit 39, a copy of a pawn slip signed by Sherman and which had been marked with J.B.'s full name while the exhibit was in the state's custody. From this evidence, the jury reasonably could have inferred Exhibit 39 identified the same pawned GPS unit Lappin had traced to J.B. Because Exhibit 39 provided an evidentiary basis for the jury to find Sherman had pawned the GPS unit stolen from J.B., we cannot say the evidence was insufficient, as a matter of law, to support the jury's verdict on this count. See Carlisle, 198 Ariz. 203, ¶ 11, 8 P.3d at 394. ¶20 But, although Exhibit 39 permitted the jury to infer the connection between that pawn slip bearing Sherman's signature and the GPS unit stolen from J.B., Sherman is correct that there was no trial testimony regarding either the source or the significance of the handwritten addition of J.B.'s name and, consistent with our obligation under Anders, we review its admission for reversible error. Because Sherman failed to state any specific grounds for objecting to the admission of the exhibit at trial, we consider only whether fundamental error occurred. See State v. Moody, 208 Ariz. 424, ¶ 120, 94 P.3d 1119, 1150 (2004); State v. Butler, 230 Ariz. 465, ¶¶ 21-22, 286 P.3d 1074, 1080 (App. 2012). ¶21 The relevance of the handwriting is its implicit assertion that Exhibit 39 was the pawn slip for a GPS unit stolen from J.B. But no declarant made this statement while testifying at trial. The handwriting is therefore hearsay. See Ariz. R. Evid. 801. Moreover, the handwriting was not admissible under any exception to the hearsay rule. See Ariz. R. Evid. 802 through 807. Andre W., the pawn shop employee who conducted the transaction, had no knowledge of the handwritten notes on Exhibit 39, and the inclusion of the superior court case number suggests the notes were added by someone in a law-enforcement agency. The recorded observations of law-enforcement personnel in a criminal case do not fall within an exception to the general hearsay prohibition. Ariz. R. Evid. 802, 803(8)(A)(ii). Accordingly, we conclude the handwritten notes on Exhibit 39 were inadmissible hearsay. See Ariz. R. Evid. 802. ¶22 Ordinarily, "'if hearsay evidence is admitted without objection, it becomes competent evidence admissible for all purposes,'" and "absent fundamental error, the failure to object is a waiver of any error." State v. Allen, 157 Ariz. 165, 170-71, 755 P.2d 1153, 1158-59 (1988), quoting State v. McGann, 132 Ariz. 296, 299, 645 P.2d 811, 814 (1982). But, as our supreme court has explained, the erroneous admission of hearsay constitutes fundamental error when it provides "'the sole proof of an essential element of the state's case'" and the defendant could not otherwise have been convicted by competent evidence in the record. Id. at 171, 755 P.2d at 1159, quoting McGann, 132 Ariz. at 299, 645 P.2d at 814. ¶23 As addressed above, it was only by the admission of Exhibit 39 that the jury could have inferred the GPS unit identified by serial number and pawned by Sherman was the same GPS unit that had been stolen from J.B. "[I]f the admission of hearsay evidence amounts to fundamental error in a criminal case, we will reverse even if the defendant has failed to object to its admission." McGann, 132 Ariz. at 299, 645 P.2d at 814. We conclude the admission of the handwritten notes on Exhibit 39, which provided the only evidence of the "stolen property" required for a conviction under § 13-2307(A) as charged in the indictment and found by the jury, was fundamental error. ¶24 Accordingly, we also vacate Sherman's conviction on the count of the indictment charging he trafficked in property stolen from J.B. But, as to this count, we disagree with Sherman's assertion that "the case must be . . . dismissed," and any implicit suggestion that he may not be retried on this charge. In State v. May, we explained the Fifth Amendment prohibits a defendant's retrial only if his conviction has been reversed because of insufficient evidence. 210 Ariz. 452, ¶ 25, 112 P.3d 39, 46 (App. 2005). Thus, in this case, Sherman may not be retried on charges that he trafficked in GPS units stolen from B.W., L.M., and G.E., which the state failed to prove by sufficient evidence. See id. In May, we concluded vacatur of a defendant's conviction was required because "only inadmissible hearsay evidence" supported a required element of the offense charged, the same conclusion we have reached here with respect to the charge involving J.B.'s GPS unit. Id. ¶ 24. But we also concluded "a retrial on the original charge [was] not precluded" because our decision was "solely based on trial error—erroneous introduction of inadmissible hearsay evidence." Id. ¶ 26, citing Lockhart v. Nelson, 488 U.S. 33, 40-41 (1988) ("[T]he Double Jeopardy Clause allows retrial when a reviewing court determines that a defendant's conviction must be reversed because evidence was erroneously admitted against him, and also concludes that without the inadmissible evidence there was insufficient evidence to support a conviction."). Accordingly, Sherman may be retried on the charge that he trafficked in a GPS unit stolen from J.B.
Nor did the state offer any evidence to identify or authenticate the handwriting evidence, despite our supreme court's admonition that "[a]uthentication and identification are aspects of relevancy that are a condition precedent to admissibility." State v. Lavers, 168 Ariz. 376, 386, 814 P.2d 333, 343 (1991); see also Ariz. R. Evid. 901(a) ("To satisfy the requirement of authenticating or identifying an item of evidence, the proponent must produce evidence sufficient to support a finding that the item is what the proponent claims it is."). Because we resolve the issue of fundamental error based on the erroneous admission of hearsay, we do not consider whether the admission of Exhibit 39 was also error under Rule 901.
Although, as noted earlier, Sherman did object to the admission of Exhibit 39, he did so only generally. See State v. Lopez, 217 Ariz. 433, ¶¶ 4-6, 175 P.3d 682, 683-84 (App. 2008) (general objection insufficient to preserve hearsay issue for appeal).
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Disposition
¶25 We conclude the state failed to present evidence sufficient for reasonable persons to find, beyond a reasonable doubt, that Sherman had recklessly trafficked in GPS units stolen from B.W., L.M., and G.E., as this jury found in the verdicts it returned. See Stroud, 209 Ariz. 410, ¶ 6, 103 P.3d at 913-14; Rivera, 226 Ariz. 325, ¶ 9, 247 P.3d at 564. Sherman's convictions for these offenses are therefore reversed and the associated sentences vacated. ¶26 Although sufficient evidence supported the jury's guilty verdict with respect to the GPS unit stolen from J.B., that evidence would not have been sufficient without the erroneous admission of inadmissible hearsay, constituting fundamental error. Accordingly, Sherman's conviction and sentence on this count of the indictment are vacated, and the case is remanded for further proceedings consistent with this decision.
______________________
PHILIP G. ESPINOSA, Judge
CONCURRING: ______________________
GARYE L. VÁSQUEZ, Presiding Judge
______________________
VIRGINIA C. KELLY, Judge