                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                   JASON LEE HAWTHORNE, Appellant.

                             No. 1 CA-CR 16-0038
                               FILED 1-19-2017


           Appeal from the Superior Court in Maricopa County
                        No. CR2014-141365-001
                 The Honorable Hugh E. Hegyi, Judge

   CONVICTIONS AFFIRMED AS MODIFIED; REMANDED FOR
                      RESENTENCING


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Michael Valenzuela
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Christopher V. Johns
Counsel for Appellant

Jason Lee Hawthorne, Cocolalla, ID
Appellant
                         STATE v. HAWTHORNE
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which
Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.


C A T T A N I, Judge:

¶1             Jason Lee Hawthorne appeals his convictions and sentences
for theft, a class 2 felony, and theft of means of transportation, a class 3
felony. Hawthorne’s counsel filed a brief in accordance with Anders v.
California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),
certifying that, after a diligent search of the record, he found no arguable
question of law that was not frivolous. Counsel asks this court to search the
record for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App.
1999).

¶2            Hawthorne filed a supplemental brief in which he raises the
following issues: (1) the sufficiency of the evidence to prove that he knew
or should have known the trailer was stolen, and (2) potential anti-military
jury bias. Additionally, we ordered Penson1 briefing to address whether
Hawthorne’s theft conviction was properly classified as a class 2 felony. For
reasons that follow, and consistent with the State’s concession of error, we
reclassify Hawthorne’s theft conviction as a class 4 felony and remand for
resentencing. We affirm in all other respects.

             FACTS AND PROCEDURAL BACKGROUND

¶3              In early July 2014, Hawthorne came across a trailer in a
parking lot designated for the resale of vehicles (the “lemon lot”) on Luke
Air Force Base. Although vehicles parked in the lemon lot typically display
a “for sale” sign, the trailer was not marked for sale. The trailer also had a
flat tire. Hawthorne was interested in purchasing the trailer, and returned
to look at it several times over the next few weeks.

¶4           A few weeks later, Hawthorne noticed that a sticker had been
placed on the trailer, informing the owner that it had been improperly
parked in the lemon lot and that it was subject to being towed. Hawthorne
inquired with the base’s Outdoor Recreation Office and Security Forces


1      Penson v. Ohio, 488 U.S. 75 (1988).


                                      2
                         STATE v. HAWTHORNE
                           Decision of the Court

about whether he could claim the trailer as abandoned property. Neither
office had information about the trailer, but they rejected his request for
permission to remove it. Security Forces referred him to the base legal
department, who told Hawthorne they would not be able to meet with him
for two weeks.

¶5              The next day, Hawthorne drove his truck to the lemon lot, cut
the trailer’s hitch lock, and towed the trailer back to his house in Peoria. He
thereafter fixed the trailer’s flat tire and obtained temporary registration
from a third-party Motor Vehicle Division (“MVD”) location. He stored the
trailer and its contents at a secure storage facility.

¶6            The trailer’s owners reported the trailer stolen the day after
Hawthorne removed it. They had stored the trailer in the lemon lot while
they looked for housing after a cross-country move. The trailer contained
furniture, electronics, children’s clothes, toys, and other belongings. After
the trailer was taken from the lemon lot, the owners filed an insurance claim
for $50,000. Base Security Forces eventually found Hawthorne after
reviewing security footage from the day the trailer was taken. Hawthorne
returned the trailer within a few hours of being contacted. Nothing had
been removed from the trailer.

¶7           Hawthorne was charged with theft of property worth
between $25,000 and $100,000, a class 2 felony, and theft of means of
transportation, a class 3 felony. A jury convicted Hawthorne of both counts.
For purposes of the theft count, the jury assigned the property a value of
“$3,000 or more, but less than $25,000.”

¶8             The superior court suspended imposition of sentence on both
counts and placed Hawthorne on concurrent terms of two years’
supervised probation. The court ordered Hawthorne to serve six months
in jail as a condition of his probation for the theft count, with two days of
credit for time served. Hawthorne timely appealed.

                               DISCUSSION

I.     Classification of Hawthorne’s Theft Conviction.

¶9            We ordered Penson briefing to address whether the record
supports classifying Hawthorne’s theft conviction as a class 2 felony and, if
not, whether the conviction should have been classified as a class 3 or class
4 felony. Because Hawthorne did not raise this issue in superior court, we
review for fundamental, prejudicial error. See State v. Henderson, 210 Ariz.
561, 567–68, ¶¶ 19–20 (2005).


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                          STATE v. HAWTHORNE
                            Decision of the Court

¶10            The classification of theft depends on the fair market value of
the goods stolen at the time of the theft. Ariz. Rev. Stat. (“A.R.S.”) § 13-
1802(G); see also A.R.S. § 13-1801(A)(15).2 Theft is a class 2 felony if the
goods stolen have a value of $25,000 or more at the time of the theft, a class
3 felony if the goods are worth at least $4,000 but less than $25,000, and a
class 4 felony if the goods have a value of at least $3,000 but less than $4,000.
A.R.S. § 13-1802(G). Because the value of the property controls the
classification of the offense—and, by extension, the resulting sentence—it
must be found by the jury. See State v. Wolter, 197 Ariz. 190, 192, ¶ 12 (App.
2000).

¶11           As the State concedes, Hawthorne’s sentence resulted in
fundamental error because he was sentenced for a class 2 felony despite the
jury’s finding that the stolen property had a value of “$3,000 or more, but
less than $25,000.” See State v. Thues, 203 Ariz. 339, 340, ¶ 4 (App. 2002).
The jury’s verdict did not support classifying Hawthorne’s conviction as a
class 2 felony, which would have required a finding that the property had
a value of at least $25,000. Moreover, the jury’s verdict is insufficient to
support reclassifying the conviction as a class 3 felony, as the jury did not
make a finding that the property had a value of at least $4,000. Thus, we
reclassify Hawthorne’s conviction as a class 4 felony because the jury’s
verdict only shows that the property was worth at least $3,000. See A.R.S. §
13-4037(A).

¶12            Reclassification of Hawthorne’s sentence from a class 2 to a
class 4 felony reduces the maximum term of probation he could have faced
from seven years to four years. A.R.S. § 13-902(A). Hawthorne received
two years of probation, which would be permissible under either
classification. Nevertheless, we will not assume the superior court would
have imposed the same sentence if Hawthorne’s conviction had been
properly classified, and we thus remand for resentencing.

II.    Hawthorne’s Pro Se Supplemental Brief.

¶13           Hawthorne argues that the State failed to present sufficient
evidence that he knew or should have known the trailer was stolen and that
the jury potentially suffered from an impermissible anti-military bias.
Because Hawthorne did not raise these issues at trial, we review only for




2     Absent material revisions after the relevant date, we cite a statute’s
current version.


                                       4
                         STATE v. HAWTHORNE
                           Decision of the Court

fundamental, prejudicial error. See Henderson, 210 Ariz. at 567–68, ¶¶ 19–
20.

       A.     Sufficiency of the Evidence.

¶14            Hawthorne was convicted of theft under A.R.S. § 13-
1802(A)(5), which requires the State to prove that “without lawful
authority, the [defendant] knowingly . . . [c]ontrol[led] property of another
knowing or having reason to know that the property was stolen.” Although
“stolen property” is not defined in § 13-1802 or its accompanying
definitions, the jury instructions (consistent with the definition applicable
to the crime of trafficking in stolen property, see A.R.S. §§ 13-2301(B)(2), -
2307) defined stolen property as “property of another . . . that has been the
subject of any unlawful taking.”

¶15          Hawthorne argues that the State failed to present sufficient
evidence to prove that the trailer was stolen, or that he knew or should have
known that the trailer was stolen.3 These arguments rely heavily on
Hawthorne’s asserted good-faith belief that he was following Arizona’s
abandoned vehicle statutes, A.R.S. §§ 28-4801 to -4884.

¶16           Sufficient evidence supports the jury’s conclusion that the
trailer was stolen. Hawthorne never received permission from any party
with authority to authorize the trailer’s removal. The instructions attached
to the MVD-provided Abandoned Vehicle Report warn that a person who
removes an abandoned vehicle from private property “must obtain written
authorization from the owner or lessee of the property on a form prescribed
by the Motor Vehicle Division.” See A.R.S. § 28-4834(D). But when
Hawthorne filled out an Abandoned Vehicle Report during his attempt to
claim the trailer, he wrote “N/A” under “Vehicle Removal Ordered By,”
and he did not provide any written authorization permitting him to remove




3      Hawthorne also claims that there was insufficient evidence to prove
that he intended to permanently deprive the victims of their property. See
A.R.S. §§ 13-1802(A)(1), -1814(A)(1). But intent to permanently deprive,
although relevant to a different manner of committing theft, is not an
element of theft by controlling stolen property, the only theory of theft
presented to the jury. See A.R.S. §§ 13-1802(A)(5), -1814(A)(5). We therefore
need not consider whether the evidence presented was sufficient to prove
Hawthorne intended to permanently deprive the victims of their property.



                                      5
                           STATE v. HAWTHORNE
                             Decision of the Court

the trailer. The jury could reasonably conclude from this evidence that
Hawthorne stole the trailer.4

¶17           This evidence also supports the jury’s conclusion that
Hawthorne knew or had reason to know the trailer was stolen. The
cautionary language of the Abandoned Vehicle Report instructions put
Hawthorne on notice that he needed written authorization to remove the
trailer. Hawthorne also could have inferred the wrongfulness of his actions
from the refusal of military personnel to give him permission to remove the
trailer. Because § 13-1802(A)(5) only requires that Hawthorne had reason
to know the trailer was stolen, his alleged good-faith belief that he had
complied with the abandoned vehicle statutes does not excuse him from
culpability. See State v. Morse, 127 Ariz. 25, 31 (1980) (noting that theft by
controlling stolen property does not require specific intent, and reiterating
that “ignorance, or lack of knowledge, of the law which forbids the conduct
with which one is charged is no defense”).

       B.     Jury Bias.

¶18            Hawthorne further argues that the jury’s verdict could not
have been fair and impartial because none of the jurors had military
experience, and thus the jury could not know how the military operates.
See State v. Burns, 237 Ariz. 1, 26, ¶ 110 (2015). Hawthorne is mistaken; one
juror had served in the armed forces. And in any event, the exclusion of
members of the military from the jury panel would not have violated
Hawthorne’s right to an impartial jury, nor the potential jurors’ Equal
Protection rights. See U.S. Const. amends. VI, XIV; see also J.E.B. v. Alabama
ex rel. T.B., 511 U.S. 127, 143 (1994) (“Parties may also exercise their
peremptory challenges to remove from the venire any group or class of
individuals normally subject to ‘rational basis’ review.”); Gov’t of the Canal
Zone v. Scott, 502 F.2d 566, 568–69 (5th Cir. 1974) (holding that excluding
military personnel from jury duty did not violate defendant’s Sixth
Amendment right to an impartial jury).




4      The evidence also supports the element that after stealing the vehicle
he independently controlled it by keeping possession of it, even if for only
a day. State v. Para, 120 Ariz. 26, 29–30 (App. 1978) (person who stole horses
could not be guilty of receiving stolen property but could be found guilty
of possessing or concealing stolen property if he committed further
independent acts of concealment or possession).


                                      6
                        STATE v. HAWTHORNE
                          Decision of the Court

III.   Fundamental Error Review.

¶19           We have read and considered counsel’s brief and have
reviewed the record for reversible error. See Leon, 104 Ariz. at 300. Other
than the classification error addressed above, we find none. Hawthorne
was present and represented by counsel at all stages of the proceedings
against him. The record reflects that the superior court afforded
Hawthorne all his constitutional and statutory rights, and that the
proceedings were conducted in accordance with the Arizona Rules of
Criminal Procedure. The court conducted appropriate pretrial hearings,
and the evidence presented at trial and summarized above was sufficient
to support the jury’s verdicts. Hawthorne’s remaining sentence falls within
the range prescribed by law.

                              CONCLUSION

¶20            We affirm Hawthorne’s convictions and his sentence for theft
of means of transportation. We reclassify Hawthorne’s theft conviction as
a class 4 felony and remand for resentencing.

¶21            Regarding the affirmed convictions and sentence, defense
counsel’s obligations pertaining to Hawthorne’s representation in this
appeal will end after informing Hawthorne of the outcome of this appeal
and his future options, unless counsel’s review reveals an issue appropriate
for submission to the Arizona Supreme Court by petition for review. See
State v. Shattuck, 140 Ariz. 582, 584–85 (1984). On the court’s own motion,
Hawthorne shall have 30 days from the date of this decision to proceed, if
he desires, with a pro se motion for reconsideration or petition for review.




                          AMY M. WOOD • Clerk of the Court
                          FILED: AA




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