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State v. Brittain

Court of Appeals of Arizona, First Division, Department C

October 31, 2013

STATE OF ARIZONA, Appellee,
v.
RANDY ALLEN BRITTAIN, Appellant.

Not for Publication -Rule 111, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Yavapai County Cause No. P1300CR201200336 The Honorable Tina R. Ainley, Judge

Thomas C. Horne, Arizona Attorney General by Joseph T. Maziarz, Chief Counsel, Criminal Appeals Section Phoenix Attorneys for Appellee

David Goldberg Attorney at Law by David Goldberg Fort Collins, CO Attorney for Appellant

MEMORANDUM DECISION

PETER B. SWANN, Presiding Judge

¶1 Defendant Randy Allen Brittain appeals his convictions and sentences for theft of means of transportation, a class 3 felony, and trafficking in stolen property in the first degree, a class 2 felony. This case comes to us as an appeal under Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297, 451 P.2d 878 (1969). Defendant's appellate counsel has searched the record on appeal and found no arguable, nonfrivolous question of law, and asks us to review the record for fundamental error. See Anders, 386 U.S. 738; Smith v. Robbins, 528 U.S. 259 (2000); State v. Clark, 196 Ariz. 530, 2 P.3d 89 (App. 1999). Defendant was given the opportunity to file a supplemental brief in propria persona but did not do so.

¶2 We have searched the record for fundamental error and find none. Accordingly, we affirm.

FACTS AND PROCEDURAL HISTORY

¶3 Defendant was indicted and tried for one count of theft of means of transportation and one count of trafficking in stolen property in the first degree. At the jury trial, the state presented evidence of the following facts.

¶4 On January 15, 2012, A.R. met Defendant and Defendant's wife at a swap meet in Prescott Valley and offered to sell his 2007 Toyota Tundra to the couple. Defendant expressed interest in potentially purchasing the truck, so A.R. gave Defendant his contact information and a map to his home. Defendant stated that he would be in touch.

¶5 Between January 16 and January 19, Defendant telephoned A.R. several times. Defendant told A.R. that he was interested in purchasing the truck but wanted to test-drive it on a weekend trip to his second home in Las Vegas. Defendant told A.R. that he would come to A.R.'s home to pick up the truck for the test drive and would leave his own Toyota Tacoma truck at A.R.'s home. A.R. had seen the Tacoma at the swap meet and Defendant had represented that he owned it. The Tacoma was actually a rental vehicle.

¶6 On January 19, Defendant and his wife arrived at A.R.'s home driving a Nissan. Defendant told A.R. that he had been unable to bring the Tacoma because it had recently been damaged in an accident. Defendant reiterated that he wanted to drive the Tundra before paying for it. Defendant and A.R. agreed that Defendant would pay $32, 000 for the Tundra if he decided to purchase it after the test drive to Las Vegas. The two men then traveled to a bank where a notary public notarized (1) A.R.'s signature on a title document purporting to transfer ownership of the Tundra to Defendant, and (2) both parties' signatures on a handwritten note, authored by Defendant, that stated: "I, RANDY BRITTAIN, AM, BUYING 2007 TOYOTA TUNDRA FROM [A.R.], FOR THE SOME OF $22, 00.00 IN FULL, SOLD ON 1-19-12." Defendant told A.R. that the note stated a purchase price lower than that which the parties had agreed to because this would help Defendant avoid tax liability. Defendant kept the note and A.R. kept the title transfer document, and Defendant did not pay A.R. any money. When Defendant and A.R. returned to A.R.'s home, Defendant left in the Tundra and Defendant's wife left in the Nissan.

¶7 The next day, January 20, Defendant telephoned A.R. and told him that he was going to return to A.R.'s home. Defendant and his wife arrived at A.R.'s home in the Tundra later that day and gave A.R. various items of personal property that he had left in the truck. Defendant then told A.R. that he had learned from his bank that he would not be able to immediately refinance his second home in Las Vegas to obtain the money to pay for the Tundra, but would be able to immediately obtain a loan using the title to the truck as collateral. A.R. agreed that Defendant could take the notarized title transfer document to use for the loan. Both parties signed a document prepared by Defendant's wife that stated: "I, RANDY, AM TAKING TITLE FOR TRUCK, TO BRING BACK CASH IN PAYMENT." At the bottom of the document, Defendant wrote: "PAID WHEN COME BACK FROM VEGAS TRIP." After the parties executed the document, Defendant and his wife took possession of the title transfer document and left in the Tundra.

¶8 Defendant later telephoned A.R. and told him that he had obtained the loan and would pay A.R. when he returned from Las Vegas. But Defendant never paid any money to A.R., never returned the Tundra, and did not respond to A.R.'s repeated attempts to contact him. On January 23, Defendant traded the Tundra to a used-automobile dealer for a different vehicle and cash. He kept the camper shell and trailer hitch that had been attached to the Tundra. Police later seized the Tundra from the automobile dealership and seized the camper shell and trailer hitch from Defendant's home. Defendant told police that the parties had agreed upon a purchase price of $22, 000 for the Tundra and that he paid that amount in cash to A.R. on January 19. Defendant told one officer that he had obtained the ...


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