Court of Appeals of Arizona, First Division, Department C
Not for Publication -Rule 111, Rules of the Arizona Supreme Court
Appeal from the Superior Court in Mohave County Cause No. S8015CR201100558 The Honorable Steven F. Conn, Judge
Thomas C. Horne, Arizona Attorney General Phoenix By Adele Ponce, Assistant Attorney General Attorneys for Appellee
Jill L. Evans, Mohave County Appellate Defender Kingman By Jill L. Evans Attorney for Appellant
MICHAEL J. BROWN, Presiding Judge
¶1 Mario Fragassi appeals from his convictions and sentences for theft and trafficking in stolen property. For the following reasons, we affirm.
¶2 The victim owns and operates a cattle ranch in Mohave County. Because of the scarcity of water in the area, he uses a truck to haul water to various locations on the ranch and transfers the water to storage tanks. Water from the storage tank is then released through a pipe to a smaller tank, known as a "trough, " that is accessible to the cattle. One of the storage tanks, which has a capacity of 4, 000 gallons, was reported missing on May 5, 2011. The ensuing investigation revealed that a pipe connecting the storage tank to the nearby cattle trough had been broken and the tank had at least some water in it when it was stolen.
¶3 Earlier that day, Mark Underhill, an employee of Mohave County and former employee of the victim, observed two men in a Suburban pulling an empty trailer in the vicinity of the victim's ranch. Several hours later, Underhill saw the same vehicle emerge from an area where he knew one of the victim's water tanks was located, with a large water tank loaded on the trailer. Underhill promptly informed his supervisor, who also had cattle on the victim's property. The supervisor then advised the victim that one of his water tanks had been removed. John Grady, the owner of a local convenience store, subsequently saw two men in a Suburban hauling a trailer with a large metal tank. Grady noticed the tank because it looked like it was "haphazardly" placed on the trailer, it was not properly secured, and it "looked dangerous." Douglas Gabler, the manager of a scrap yard, was working when Fragassi and another man brought the water tank into the yard using a trailer hauled by a Suburban. Fragassi sold the water tank for $230.40. According to the victim, the water tank is worth at least $4000.
¶4 The victim recovered his tank from the scrap yard and returned it to his ranch. Fragassi later returned to the scrap yard, claiming he was in trouble over the sale of the tank. Fragassi asked Gabler to talk to the victim on Fragassi's behalf, and Fragassi offered to return the money he had received for the tank to "lessen the severity of what was happening."
¶5 On May 14, Deputy Randall Apfel observed Fragassi driving the same Suburban that was used to haul the water tank. After he was placed under arrest, Fragassi told the officer that an individual named Shawn Ramey asked Fragassi to help haul a water tank, already loaded on a trailer, to the scrap yard. Fragassi explained that Ramey did not have any identification with him, and therefore Fragassi had to act as the seller for the transaction because the scrap yard requires identification for all sales.
¶6 The State charged Fragassi with one count of theft of property with a value of $4000 or more, a class 3 felony, and one count of trafficking in stolen property in the second degree, a class 3 felony. Ramey, however, was not charged with any crime relating to theft of the water tank. Instead, he entered a plea agreement that resolved several other charges in exchange for the State's agreement not to file charges against him for this matter. Neither Ramey nor Fragassi testified at trial; rather, defense counsel asserted that Fragassi was misled by Ramey and had no knowledge that they did not have permission to remove the water tank.
¶7 A jury convicted Fragassi of theft of property with a value of $1000 or more but less than $2000 and trafficking in stolen property in the second degree. The trial court found that Fragassi had two historical prior felony convictions. At sentencing, the court found no aggravating factors and determined that Fragassi's significant mental health history and the minor nature of the trafficking offense were mitigating factors. The court sentenced Fragassi to minimum terms of three years' imprisonment on the theft charge and ten years' imprisonment on the trafficking charge, with both sentences to be served ...