                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                   RYAN MATTHEW LUNA, Appellant.

                             No. 1 CA-CR 17-0033
                               FILED 2-1-2018


          Appeal from the Superior Court in Maricopa County
                       No. CR2014-132511-001
         The Honorable Richard L. Nothwehr, Judge Pro Tempore

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General's Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

DeBrigida Law Offices, PLLC, Glendale
By Ronald M. DeBrigida, Jr.
Counsel for Appellant
                            STATE v. LUNA
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Diane M. Johnsen delivered the decision of the Court, in
which Judge Kent E. Cattani and Judge Jennifer M. Perkins joined.


J O H N S E N, Judge:

¶1            Ryan Matthew Luna argues insufficient evidence supported
his convictions for trafficking in stolen property and theft. For the reasons
that follow, we affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2           In February 2014, Luna sold an industrial floor grinder and a
vacuum unit to the owner of Flo-Tech, a concrete-floor finishing company.
At the time, Luna was a foreman at QuestMark, a larger concrete-floor
finishing company that is a competitor of Flo-Tech. A few months later,
QuestMark discovered that one of its floor grinders and a paired vacuum
unit were missing. QuestMark subsequently learned that Flo-Tech had
acquired the missing items. QuestMark identified the two devices through
the vacuum's serial number and a distinctive paint stain on the grinder.

¶3           QuestMark notified police, who arrested Luna. The State
charged him with one count of second-degree trafficking in stolen property
and one count of theft of property valued at $4,000 or more, both Class 3
felonies. After a four-day trial, the jury convicted Luna on both charges,
and the court sentenced him to two concurrent prison sentences of 10.5
years.

¶4            Luna timely appealed. We have jurisdiction pursuant to
Article 6, Section 9 of the Arizona Constitution, and Arizona Revised
Statutes ("A.R.S.") sections 12-120.21(A)(1) (2018), 13-4031 (2018) and
-4033(A)(1) (2018).1




1     Absent material revision after the relevant date, we cite a statute's
current version.


                                     2
                             STATE v. LUNA
                            Decision of the Court

                               DISCUSSION

¶5             Luna argues the evidence was insufficient to support the
convictions and the superior court therefore erred in denying his motion
for acquittal at the close of the State's case.

A.     Legal Principles.

¶6             Under Rule 20(a)(1) of the Arizona Rules of Criminal
Procedure, a judgment of acquittal should be entered "if there is no
substantial evidence to support a conviction." "We review a trial court's
denial of a Rule 20 motion for an abuse of discretion and will reverse a
conviction only if there is a complete absence of substantial evidence to
support the charges." State v. Tillmon, 222 Ariz. 452, 456, ¶ 18 (App. 2009)
(quotation omitted). "Substantial evidence is more than a mere scintilla and
is such proof that 'reasonable persons could accept as adequate and
sufficient to support a conclusion of defendant's guilt beyond a reasonable
doubt.'" State v. Mathers, 165 Ariz. 64, 67 (1990) (quoting State v. Jones, 125
Ariz. 417, 419 (1980)). The substantial evidence supporting conviction may
be circumstantial or direct, State v. Mosley, 119 Ariz. 393, 402 (1978), and the
State need not negate every conceivable theory of innocence when
circumstantial evidence alone supports the conviction, State v. Blevins, 128
Ariz. 64, 67 (App. 1981). "[T]he relevant question is whether, after viewing
the evidence in the light most favorable to the prosecution, any rational trier
of fact could have found the essential elements of the crime beyond a
reasonable doubt." State v. West, 226 Ariz. 559, 562, ¶ 16 (2011) (quoting
Mathers, 165 Ariz. at 66 (quoting Jackson v. Virginia, 443 U.S. 307, 319
(1979))).

B.     The Elements of the Charged Crimes.

¶7             Luna was convicted of second-degree trafficking in stolen
property and theft of property valued at $4,000 or more. "A person who
recklessly traffics in the property of another that has been stolen is guilty of
trafficking in stolen property in the second degree." A.R.S. § 13-2307(A)
(2018). Trafficking includes, among other things, "sell[ing] . . . stolen
property to another person." A.R.S. § 13-2301(B)(3) (2018). "'Recklessly'
means, with respect to a result or to a circumstance described by a statute
defining an offense, that a person is aware of and consciously disregards a
substantial and unjustifiable risk that the result will occur or that the
circumstance exists." A.R.S. § 13-105(10)(c) (2018). For a defendant's
conduct to be reckless, the defendant's disregard of a risk must be "a gross




                                       3
                            STATE v. LUNA
                           Decision of the Court

deviation from the standard of conduct that a reasonable person would
observe in the situation." Id.

¶8            "A person commits theft if, without lawful authority, the
person knowingly . . . [c]ontrols property of another with the intent to
deprive the other person of such property." A.R.S. § 13-1802(A)(1) (2018).
"'Knowingly' means, with respect to conduct or to a circumstance described
by a statute defining an offense, that a person is aware or believes that the
person's conduct is of that nature or that the circumstance exists." § 13-
105(10)(b).

C.    The Evidence.

¶9           Four witnesses testified at trial: A former QuestMark
manager, Flo-Tech's owner, the Flo-Tech employee who facilitated the
purchase from Luna, and a Phoenix burglary detective.

¶10           The former QuestMark manager testified that in mid-2014,
the company realized it was missing a half-ton industrial floor grinder it
had purchased for approximately $18,000, along with a separate vacuum
unit for which it had paid approximately $12,000. Upon investigation,
QuestMark learned that Flo-Tech had the grinder. Although the plate with
the grinder's serial number had been removed, the machine bore a
distinctive paint stain from a past dye-sprayer incident. QuestMark
identified the vacuum from the device's make and serial number.

¶11           According to the former manager, QuestMark could not
determine which of its crews last used that particular grinder or exactly
how long the grinder had been missing because it did not track the location
of its equipment or keep records of what crews used which machines. He
testified, however, that Luna, who worked as a QuestMark foreman for
about three years until sometime after February 2014, had access to the
equipment. As a foreman, Luna would transport a grinder and an
associated vacuum to and from job sites, and was responsible for securing
the equipment at job sites when projects lasted longer than a single day.
The manager testified that neither Luna nor anyone else at QuestMark in
Arizona had authority to dispose of or sell equipment. When QuestMark's
Arizona operation retired equipment from use, company policy required
local employees to call QuestMark's main office in Pennsylvania to arrange
transport back to Pennsylvania.

¶12            Flo-Tech's owner testified that in 2014, he was in the market
for a floor grinder and vacuum. One of his employees told him that a man,
whom the owner came to know as Ryan Luna, had a grinder and vacuum


                                     4
                            STATE v. LUNA
                           Decision of the Court

for sale. Luna offered to sell the owner the grinder and vacuum set for
around $8,000, which the owner testified was "a really good price" if the
equipment was in good shape. The owner arranged with Luna to rent the
machines for a week for $1,200 or $1,500 to try them out to make sure they
were in good working order. The grinder worked well, so the owner met
with Luna in person and gave him a check made out to "Ryan M. Luna" for
an additional $6,500 to complete the transaction. The owner testified Luna
at first may have suggested payment in cash.

¶13           The Flo-Tech employee testified he had known Luna for
several years, dating back to when they both had worked at QuestMark.
He testified he told Luna that Flo-Tech was looking to purchase a grinder,
and Luna told him that he "knew somebody" who had one for sale. The
Flo-Tech employee put Luna and Flo-Tech's owner in contact with each
other. Once Luna and the owner closed a deal for the equipment, the Flo-
Tech employee went with Luna to pick up the equipment at a downtown
Phoenix warehouse. When they arrived, another man was there and
unlocked the warehouse for them. The Flo-Tech employee then loaded the
grinder and vacuum onto a trailer and took it to Flo-Tech.

¶14           The Phoenix police detective testified that Flo-Tech's owner
identified Luna in a photo lineup. The detective stated he had no evidence
that Luna physically took the equipment from QuestMark. He also
acknowledged that he had not taken any steps to identify where the
equipment might have been before Flo-Tech bought it and had not
identified anyone else who may have had the equipment or come into
contact with it.

¶15           Finally, the State also offered in evidence QuestMark's invoice
for its purchase of the equipment, information sheets on the equipment,
photographs of the equipment, a photo of the interior of Flo-Tech's facility,
and copies of the check Flo-Tech's owner wrote to Luna.

¶16           Viewed in the light most favorable to upholding the jurors'
verdicts, there was substantial evidence establishing the elements of
second-degree trafficking beyond a reasonable doubt. A juror could infer
that the equipment was stolen based on evidence that QuestMark owned it
and no one at QuestMark in Arizona had authority to dispose of it, and yet
it disappeared and later showed up in Luna's control. That Luna sold the
stolen machines was evidenced by the testimony of Flo-Tech's owner and
its employee, both of whom identified Luna as the person who sold the
equipment, along with the check made out to Luna. Finally, the fact that
Luna was aware of a significant risk that the equipment had been stolen


                                     5
                             STATE v. LUNA
                            Decision of the Court

from QuestMark was established by evidence that (1) he worked at
QuestMark and was familiar with the make and type of grinders the
company used, (2) the stolen grinder was of a make and type that Luna's
work crews at QuestMark had used, and (3) the stolen grinder bore the
same paint stain as a machine that QuestMark owned and used and was
missing its serial number plate. Luna's conduct was a gross deviation from
what a reasonable person would do in like circumstances: Although a
reasonable person likely would have notified his employer that he was
aware of equipment that had likely been stolen from the company, or at
least refrained from further involving himself with the stolen equipment,
Luna instead sold the equipment to Flo-Tech.

¶17           A rational juror also could have reasonably concluded that
the State had proven the elements of theft beyond a reasonable doubt. As
stated above, a reasonable juror could conclude that the equipment was
QuestMark's and Luna knew it. A juror could reasonably infer that Luna
controlled the equipment based on the fact that the other man at the
warehouse unlocked and opened the doors and passively allowed Luna
and the Flo-Tech employee to load the equipment and take it away. From
the fact that Luna sold the machine, the inference that he intended to
permanently deprive QuestMark of it is inescapable. And the evidence
showed that Luna had no lawful authority to sell the equipment: No
QuestMark foreman had authority to sell QuestMark equipment.

¶18            Further, there was evidence that Luna had both the
opportunity and the means to steal the equipment from QuestMark: As a
foreman at the company, he had access to the equipment and a truck to
transport it. He also would have known that QuestMark did not carefully
track the whereabouts of its machines, so he would have known that if he
took a machine, the company likely would not miss it right away.
Additionally, Luna's willingness to sell the machines for a relatively low
price, along with the Flo-Tech owner's testimony that Luna asked for cash
for the equipment, imply Luna was aware the equipment was stolen and
was eager to get rid of it quickly without leaving a record of the transaction.
Finally, the fact that he suggested at first to the Flo-Tech employee that it
was someone else who was selling the equipment, but then negotiated the
sale himself and took a check in his own name, suggests that his original
story was an attempt to distance himself from what he knew was an illegal
transaction.




                                      6
                           STATE v. LUNA
                          Decision of the Court

                             CONCLUSION

¶19          Because substantial evidence supports the jury's verdicts, we
affirm Luna's convictions and sentences.




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




                                       7
