Court of Appeals of Arizona, First Division, Department D
(Not for Publication -Rule 111, Rules of the Arizona Supreme Court)
Appeal from the Superior Court in Maricopa County Cause No. CR2010-163172-001 The Honorable Carolyn K. Passamonte, Judge Pro Tem
Thomas C. Horne, Arizona Attorney General Phoenix By Joseph T. Maziarz, Chief Counsel Criminal Appeals/Capital Litigation Section William Knight, Rule 38(d) Student Attorneys for Appellee.
James J. Haas, Maricopa County Public Defender Phoenix By Charles R. Krull, Deputy Public Defender Attorneys for Appellant.
MARGARET H. DOWNIE, Judge.
¶1 Wesley Jerome Dodson, III, appeals his conviction and sentence for possession of burglary tools. For the following reasons, we affirm.
FACTS AND PROCEDURAL HISTORY
¶2 I.M. saw Dodson riding a bike around the fenced compound where I.M.'s employer, Salt River Project ("SRP"), kept spools of copper wire. When Dodson disappeared for a few minutes, I.M. assumed he was using the on-site bathroom but decided to keep an eye on him. A few minutes later, he saw Dodson hurrying off the site with a piece of "number six green stranded" copper wire hanging out of his bag. This was the same type of wire SRP used at the site. I.M. grabbed the wire and found "it wasn't just a piece" of wire, but an entire spool. Dodson told I.M. he found the wire and rode away.
¶3 I.M. got in a truck and searched the surrounding area for Dodson. He found him about 30 minutes later, hiding behind a dumpster and using wire cutters to remove wire from the spool and load it into his bag. When Dodson rode away, I.M. followed, relaying his location to police via telephone. Although I.M. lost sight of Dodson several times, officers apprehended him, and I.M. definitively identified him as the man he followed from the construction site. Inside Dodson's bag, officers found green copper wire, which I.M. identified as belonging to SRP.
¶4 Dodson was indicted for burglary in the third degree, a class 4 felony, and possession of burglary tools, a class 6 felony. At the ensuing jury trial, Officer Murphy testified she did not impound, photograph, or refer to wire cutters in her report, and that to her knowledge, no wire cutters were taken into evidence. She further testified that scrap yards will not "take whole reels of wire, " instead requiring that the wire be cut.
¶5 Dodson denied taking wire from the SRP site. He testified that he collected scraps of green wire from a dumpster as part of his usual "rounds" salvaging scrap metal and that the scraps were already in his bag when he stopped to use the bathroom at the SRP site. He denied using wire cutters at the dumpster, where he reportedly went to collect a bag he had left earlier, or cutting the wire found in his bag.
¶6 Dodson moved for a judgment of acquittal pursuant to Rule 20, Arizona Rules of Criminal Procedure, arguing, inter alia, that the State failed to present substantial evidence that he possessed the wire cutters. The court denied the motion. The jury found Dodson guilty of both counts, and he was sentenced to a term of imprisonment. Dodson timely appealed. We have jurisdiction pursuant to Arizona Revised Statutes ("A.R.S.") sections 12-120.21, 13-4031, and -4033.
¶7 Dodson challenges only his conviction for possession of burglary tools. He claims the State failed to prove that he possessed wire cutters with the intent to use them in committing the SRP burglary and that the prosecutor improperly argued that the State need not prove he ...