                          NOTICE: NOT FOR PUBLICATION.
   UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION DOES NOT CREATE
          LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED.




                                    IN THE
               ARIZONA COURT OF APPEALS
                                 DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                  THOMAS ALAN HIEMSTRA, Appellant.

                             No. 1 CA-CR 12-0678
                              FILED 05-15-2014


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-150761-001
             The Honorable William L. Brotherton, Jr., Judge

      AFFIRMED IN PART; VACATED IN PART; REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Alice Jones
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Cory Engle
Counsel for Appellant
                           STATE v. HIEMSTRA
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Kenton D. Jones and Judge Donn Kessler joined.


D O W N I E, Judge:

¶1            Thomas Hiemstra appeals his convictions for theft of means
of transportation, possession of burglary tools, and theft. We affirm the
convictions for theft of means of transportation and theft but vacate the
conviction for possession of burglary tools and remand for resentencing.

                FACTS AND PROCEDURAL HISTORY 1

¶2            Officer McDonald was traveling southbound on Interstate 17
when he spotted a white Infiniti idling in a gore point and displaying its
hazard lights. A mountain bike protruded from the trunk. When the
officer pulled behind the vehicle, it abruptly turned off its hazard lights
and merged into traffic. Officer McDonald followed. The Infiniti engaged
in abrupt maneuvering, initially entering an exit lane, but returning to the
interstate when Officer McDonald also moved into the exit lane. At the
next exit, the vehicle “jerked and cut through the gore point” at an exit
ramp and left the interstate. Officer McDonald made a traffic stop.

¶3            According to Officer McDonald, the Infiniti’s driver, later
identified as Hiemstra, was “very nervous” and “sweating profusely.”
Hiemstra was using a “manipulation key” to operate the vehicle. 2 Officer
McDonald found several tools inside the car, including a hacksaw, bolt
cutters, and a screwdriver. Upon running the vehicle’s identification
number, Officer McDonald discovered that the car had been reported



1      We review the facts in the light most favorable to sustaining the
verdicts. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989).
2      A manipulation key lacks cuts or grooves and is not specific to any
vehicle. The manipulation key would have to be “manipulated, wiggled,
jiggle[d], [or] wobbled” in the Infiniti’s ignition. A detective testified that
it took him approximately 30 seconds to start the Infiniti using Hiemstra’s
manipulation key.



                                      2
                           STATE v. HIEMSTRA
                           Decision of the Court

stolen. The mountain bike had also been reported stolen, but from a
different owner.

¶4             Hiemstra was charged with theft of means of transportation
(count 1), a class 3 felony; possession of burglary tools (count 2), a class 6
felony; and theft (count 3), a class 5 felony. A jury found him guilty of all
three counts. Hiemstra timely appealed. We have jurisdiction pursuant
to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031,
and 13-4033(A)(1).

                               DISCUSSION

¶5             Hiemstra challenges the sufficiency of the evidence
supporting his convictions. “Th[e] question of sufficiency of the evidence
is one of law, subject to de novo review on appeal.” State v. West, 226 Ariz.
559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). Substantial evidence is such
proof that “reasonable persons could accept as adequate and sufficient to
support a conclusion of [the] defendant’s guilt beyond a reasonable
doubt.” State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990).
“Reversible error based on insufficiency of the evidence occurs only where
there is a complete absence of probative facts to support the conviction.”
State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). “Both direct
and circumstantial evidence should be considered in determining whether
substantial evidence supports a conviction.” West, 226 Ariz. at 562, ¶ 16,
250 P.3d at 1191.

I.     Theft of Means of Transportation

¶6            To convict Hiemstra of theft of means of transportation, the
State was required to prove that, without lawful authority, he knowingly
controlled another person’s vehicle, knowing or having reason to know
that the vehicle was stolen. See A.R.S. § 13-1814(A)(5). Hiemstra does not
deny that he was driving a stolen vehicle. He argues only that there was
no evidence he knew or had reason to know the car was stolen.

¶7           R.F., the Infiniti’s owner, testified at trial. He stated that he
was out of the country when his car went missing from his carport. R.F.
had the vehicle’s keys in his possession and had disabled the battery while
he was gone. R.F. testified he did not give Hiemstra permission to drive
his car.

¶8            The lack of direct evidence does not preclude a finding of
guilt, as criminal convictions may rest solely on circumstantial proof.
State v. Tison, 129 Ariz. 546, 554, 633 P.2d 355, 363 (1981). Jurors could


                                      3
                           STATE v. HIEMSTRA
                           Decision of the Court

conclude that Hiemstra’s attempts to elude Officer McDonald and his
demeanor upon being stopped suggested consciousness of wrongdoing.
See State v. Hunter, 136 Ariz. 45, 48-49, 664 P.2d 195, 198-99 (1983) (jury
may consider flight as consciousness of guilt). The fact Hiemstra was
operating the car with a manipulation key was further circumstantial
evidence of guilt. A detective testified that “a normal person would not
be able to walk up with this key, put it in the ignition and just turn the
ignition as if it’s a normal key.” See State v. Martinez, 15 Ariz. App. 10, 12,
485 P.2d 600, 602 (1971) (“It is axiomatic that intent or knowledge may be
inferred from the circumstances surrounding a person’s behavior or
action.”). Although Hiemstra testified he acquired the vehicle from his
uncle and did not know it was stolen, jurors obviously disbelieved his
version of events. See State v. Roberts, 139 Ariz. 117, 121, 677 P.2d 280, 284
(App. 1983) (questions of witness credibility are for the jury to resolve).
Substantial evidence supports the conviction for theft of means of
transportation.

II.    Theft

¶9           A.R.S. § 13-1802(A)(5) states that a person commits theft by
knowingly controlling, without legal authority, “property of another
knowing or having reason to know that the property was stolen.”
Hiemstra does not dispute being in possession of a stolen bicycle. He
argues only that he was unaware the bike was stolen.

¶10           M.B. testified that he owned the mountain bike, which was
locked to a rack mounted on his vehicle as of 10:00 p.m. on September 17,
2011. The next morning, M.B. discovered that someone had broken his
bike rack, cut the straps and detached the bungee cord securing the bike,
and taken the bike.

¶11            Officer McDonald stopped Hiemstra in the early morning
hours of September 18, 2011. Hiemstra was traveling in a direction
consistent with having left M.B.’s residence en route to his own home.
Officer McDonald identified tools inside the vehicle that could have been
used to steal the bike.

¶12          “Unexplained possession of recently stolen goods can
generate an inference of the requisite felonious intent.” State v. Rood, 11
Ariz. App. 102, 103, 462 P.2d 399, 400 (1969). In addition, Hiemstra’s
evasive maneuvers and demeanor, discussed supra, offered circumstantial
evidence of guilt. See Hunter, 136 Ariz. at 48-49, 664 P.2d at 198-99.
Hiemstra contends “[t]here was nothing inherent in the condition of the



                                      4
                           STATE v. HIEMSTRA
                           Decision of the Court

bike to indicate it had been stolen.” But his possession of the bicycle on the
day it was reported stolen, possession of tools appropriate for theft of the
bike, route of travel, and behaviors suggesting consciousness of guilt
offered circumstantial evidence from which reasonable jurors could
conclude that Hiemstra knew the bike was stolen.

III.   Possession of Burglary Tools

¶13           The superior court instructed the jury as follows on the
possession of burglary tools charge:

       The crime of possession of burglary tools requires proof that
       the defendant:

       1. Possessed any tool, instrument, or other article adapted or
       commonly used for committing burglary; and

       2. Intended to use or permit the use of such an item in the
       commission of a burglary.

¶14           The State concedes insufficient evidence supported the
possession of burglary tools conviction as instructed and that “[f]or
purposes of determining whether sufficient evidence supports the jury’s
verdict, it appears the evidence must be analyzed in terms of the charge
actually submitted to the jury.” 3 Although we are not bound by the
State’s confession of error, State v. Stewart, 3 Ariz. App. 178, 180, 412 P.2d
860, 862 (1966), we agree that insufficient evidence supports the conviction
on the grounds submitted to the jury.

¶15           In closing argument, the prosecutor relied on the tools found
in the Infiniti’s trunk. He incorrectly told jurors that stealing a bicycle
attached to a vehicle constitutes burglary of a non-residential structure.
See A.R.S. § 13-1501(12) (defining “structure” as “any building, object,
vehicle, railroad car or place with sides and a floor that is separately
securable from any other structure attached to it and that is used for
lodging, business, transportation, recreation or storage”). Although the
State observes that the tools found in the trunk are “commonly used for
committing burglaries,” it concedes “there was no evidence that Hiemstra
used or intended to use them to commit a burglary.” As the State

3      The jury was not instructed that possession of burglary tools
included “[b]uying, selling, transferring, possessing or using a motor
vehicle manipulation key or master key.” See A.R.S. § 13-1505(A)(2).



                                      5
                          STATE v. HIEMSTRA
                          Decision of the Court

acknowledges, the evidence at most showed only that Hiemstra used or
intended to use the tools to commit the theft of M.B.’s bicycle. The
evidence does not support Hiemstra’s conviction for possession of
burglary tools as instructed.

                            CONCLUSION

¶16           For the reasons stated, we affirm Hiemstra’s convictions for
theft of means of transportation and theft, vacate his conviction for
possession of burglary tools, and remand for resentencing.




                                :gsh




                                    6
