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State v. Lappitt

Court of Appeals of Arizona, Second Division

November 26, 2013

The State of Arizona, Appellee,
v.
Ashley Elizabeth Lappitt, Appellant

Not for Publication – Rule 111(c), Ariz. R. Crim. P. 31.24, Rules of the Arizona Supreme Court

Appeal from the Superior Court in Pima County No. CR20114009001 The Honorable Michael O. Miller, Judge

Thomas C. Horne, Arizona Attorney General By Joseph T. Maziarz, Section Chief Counsel, Phoenix and Joseph L. Parkhurst, Assistant Attorney General, Tucson Counsel for Appellee

Barton & Storts, P.C., Tucson By Brick P. Storts, III Counsel for Appellant

Presiding Judge Kelly authored the decision of the Court, in which Judge Espinosa and Judge Eckerstrom concurred.

MEMORANDUM DECISION

KELLY, Presiding Judge:

¶1 Following a jury trial, appellant Ashley Lappitt was convicted of second-degree trafficking in stolen property. The trial court suspended the imposition of sentence and placed Lappitt on probation for a period of five years. On appeal, she argues there was insufficient evidence to support her conviction and urges this court to vacate it or, alternatively, modify it to a conviction for the offense of false representation. We affirm for the following reasons.

Factual and Procedural Background

¶2 We view the facts and all reasonable inferences therefrom in the light most favorable to upholding Lappitt's conviction and probationary term. See State v. Becerra, 231 Ariz. 200, 2, 291 P.3d 994, 996 (App. 2013). In October 2011, B.M. saw two men running from her house. She alerted police after realizing that some of her jewelry was missing. The following day, Lappitt sold B.M.'s jewelry to a pawn shop for $350. Following a jury trial, Lappitt was convicted of trafficking in stolen property in the second degree and placed on probation for five years. Lappitt timely appealed. We have jurisdiction pursuant to A.R.S. §§ 13-4031 and 13-4033(A).

Statutory Definition of Trafficking

¶3 Lappitt first contends there was insufficient evidence to support her conviction for trafficking and suggests the trial court erred by denying her motion for judgment of acquittal pursuant to Rule 20(a), Ariz. R. Crim. P. Lappitt claims we should vacate her conviction because "pawning an item at a pawn shop to be redeemed later is not 'trafficking' in that item" under the statutory definition. See A.R.S. §§ 13-2307(A), 13-2301(B)(3). She argues that pawning an item is a bailment, rather than a sale, because the act does not transfer ownership of the item until the maturity date of the pawn expires. She thus claims she did not "dispose of the property as required by statute.

¶4 Although Lappitt moved for a Rule 20 judgment of acquittal at trial, she did not make the legal argument she now raises on appeal, although she clearly had the opportunity to do so. She fails to direct us to any part of the record establishing she preserved this argument for appellate review, nor have we found this argument during our review of relevant portions of the record. Lappitt therefore has forfeited this argument and the right to seek relief for all but fundamental, prejudicial error. State v. Henderson, 210 Ariz. 561, ¶ 19, 115 P.3d 601, 607 (2005); see also State v. Zinsmeyer, 222 Ariz. 612, 27, 218 P.3d 1069, 1080 (App. 2009) (defendant forfeited argument construing a burglary statute by failing to raise it in Rule 20 motion at trial, resulting in fundamental error review), overruled on other grounds by State v. Bonfiglio, 231 Ariz. 371, ¶¶ 6-7, 15, 295 P.3d 948, 950, 951 (2013).

¶5 Fundamental error is "'error going to the foundation of the case, error that takes from the defendant a right essential to his defense, and error of such magnitude that the defendant could not possibly have received a fair trial.'" Henderson, 210 Ariz. 561, 19, 115 P.3d at 607, quoting State v. Hunter, 142 Ariz. 88, 90, 688 P.2d 980, 982 (1984). A conviction based on insufficient evidence is fundamental error. State v. Stroud, 209 Ariz. 410, n.2, 103 P.3d 912, 914 n.2 (2005). "We will find reversible error based on insufficient evidence only where there is a complete absence of probative facts to support a conviction." State v. Fernane, 185 Ariz. 222, 224, 914 P.2d 1314, 1316 (App. 1995). To the extent our decision depends on the interpretation of a statute, our review is de novo. Pima Cnty. Human Rights Comm. v. Ariz. Dep't of Health Servs., 232 Ariz. 177, ¶ 12, 303 P.3d 71, 74-75 (App. 2013).

¶6 Lappitt argues that her conviction was not supported by sufficient evidence because pawning an item does not constitute trafficking under the relevant statutes. See §§ 13-2307(A), 13-2301(B)(3). To convict a defendant of second-degree trafficking in stolen property, the state must prove the defendant "recklessly traffic[ked] in the property of another that has been stolen." § 13-2307(A). "Stolen property" is defined as "property of another . . . that has been the subject of any ...


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