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State v. Giannotta

Court of Appeals of Arizona, First Division

December 26, 2019

STATE OF ARIZONA, Appellee,
v.
LEVI A. GIANNOTTA, Appellant.

          Appeal from the Superior Court in Maricopa County No. CR2017-152837-001 The Honorable Colleen L. French, Judge Pro Tempore Retired.

          Arizona Attorney General's Office, Phoenix By Casey Ball Counsel for Appellee.

          Maricopa County Public Defender's Office, Phoenix By Kevin D. Heade Counsel for Appellant.

          Judge Kent E. Cattani delivered the opinion of the Court, in which Presiding Judge Maria Elena Cruz and Judge Samuel A. Thumma joined.

          OPINION

          CATTANI, JUDGE.

         ¶1 Levi A. Giannotta appeals from his convictions and sentences for theft and third-degree burglary. Giannotta challenges the superior court's admission of certain hearsay evidence that, in his view, was critical to the convictions. We hold that the evidence was properly admitted under the hearsay exception for recorded recollections, and we clarify that a jointly constructed recorded recollection-e.g., one person makes an oral statement, another writes it down-may be admitted under this exception if each person involved in creating the record testifies to performing his or her role accurately. Accordingly, and for reasons that follow, we affirm.

         FACTS AND PROCEDURAL BACKGROUND

         ¶2 In October 2017, the victim purchased a new AR-15 semiautomatic rifle and posted a picture of it on social media. Within a week, Giannotta, who was acquainted with the victim through a mutual friend, messaged the victim on social media asking to go to the shooting range. The two arranged to meet in the parking lot of an apartment complex in Glendale.

         ¶3 The victim arrived first, and Giannotta drove up soon thereafter. When Giannotta asked to see the gun, the victim opened his car trunk and showed Giannotta the rifle, still in its box, with a magazine and 20 rounds of ammunition. The victim then went back to the passenger compartment to look for his phone, and when he turned back, the rifle was no longer in the trunk and Giannotta was getting in his car to drive away.

         ¶4 Unable to follow Giannotta quickly enough, the victim went home to retrieve his receipt, which listed the rifle's serial number, and he then called the Glendale Police Department to report the theft. He first gave Giannotta's name and the make and model of his car, then called back to provide Giannotta's birthdate. An officer called the victim back later that day to take a formal report, at which point the victim provided the rifle's serial number.

         ¶5 About two weeks later, police officers located Giannotta at a Glendale residence. After being read Miranda[1] warnings, Giannotta denied knowing anything about the stolen rifle and denied meeting the victim two weeks earlier. Police officers then executed a warrant to search the residence, where they found an AR-15 rifle, still in its box, along with a magazine containing 20 rounds of ammunition. The serial number on the rifle matched the one provided by the victim.

         ¶6 Giannotta was arrested and charged with theft and third- degree burglary. He was tried in absentia, and a jury found him guilty as charged. After Giannotta was again arrested, the court sentenced him as a category three repetitive offender to concurrent, presumptive terms of imprisonment, the longest of which is 10 years.

         ¶7 Giannotta timely appealed, and we have jurisdiction under ...


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