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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                     STEVEN MARK SASEK, Appellant.

                             No. 1 CA-CR 13-0750
                               FILED 3-26-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2011-156254-001
                  The Honorable David B. Gass, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Adele Ponce
Counsel for Appellee

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



                      MEMORANDUM DECISION

Presiding Judge Kent E. Cattani delivered the decision of the Court, in
which Judge Lawrence F. Winthrop and Judge Peter B. Swann joined.


C A T T A N I, Judge:

¶1           Steven Mark Sasek appeals his convictions and sentences for
two counts of theft of means of transportation. For reasons that follow, we
affirm.

             FACTS AND PROCEDURAL BACKGROUND

¶2             The State charged Sasek with two counts of theft of means of
transportation and one count of theft of a lawnmower. The first count of
theft of means of transportation involved a 2000 Honda automobile; the
second count a trailer. The superior court granted Sasek’s motion to sever
the theft of means count involving the Honda automobile. Following a jury
trial on that count, Sasek was convicted as charged. Following a jury trial
on the other counts, Sasek was acquitted of theft of the lawnmower, but the
jury was unable to reach a verdict on the charge relating to the trailer. A
retrial resulted in a conviction as charged.

¶3            The superior court sentenced Sasek to the presumptive
sentence of 3.5 years for the automobile theft, and to a mitigated sentence
of 5.5 years for the trailer theft, to be served concurrently. Sasek filed a
timely notice of appeal, and we have jurisdiction under Arizona Revised
Statutes (“A.R.S.”) §§ 12-120.21(A)(1), 13-4031, and -4033.1

                               DISCUSSION

I.     Sufficiency of Evidence of Theft of Means of Transportation
       (Trailer).

¶4             Sasek argues that the superior court erred by denying his
motion for judgment of acquittal on the second charge, which required
proof that he used the trailer in question knowing or having reason to know
it was stolen. See A.R.S. § 13-1814(A)(5). Sasek asserts in particular that the

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


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                            STATE v. SASEK
                           Decision of the Court

State did not establish that he knew or had reason to know the trailer was
stolen.

¶5             We review the denial of a motion for judgment of acquittal
and the sufficiency of the evidence to support a conviction de novo. State
v. West, 226 Ariz. 559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). We view the
facts in the light most favorable to upholding the jury’s verdict, and we
resolve all conflicts in the evidence against the defendant. State v. Girdler,
138 Ariz. 482, 488, 675 P.2d 1301, 1307 (1983). We do not distinguish
between direct and circumstantial evidence. See State v. Stuard, 176 Ariz.
589, 603, 863 P.2d 881, 895 (1993).

¶6           A directed verdict of acquittal is appropriate only “if there is
no substantial evidence to warrant a conviction.” Ariz. R. Crim. P. 20(a).
“Substantial evidence . . . is such proof that ‘reasonable persons could
accept as adequate and sufficient to support a conclusion of defendant’s
guilt beyond a reasonable doubt.’” West, 226 Ariz. at 562, ¶ 16, 250 P.3d at
1191.

¶7           Here, circumstantial evidence established a basis for finding
that Sasek used the trailer knowing or having reason to know it had been
stolen. The victim testified that he purchased the trailer in 2008 for $2,400,
and that it was stolen on June 20, 2011. Police officers arrested Sasek on
November 1, 2011, after observing him unhooking the trailer from his truck.

¶8             Sasek told police officers that his mother had purchased the
trailer at least six months earlier (which was before the trailer had been
stolen), for an unknown amount from a friend whose name he did not
know. When asked for his mother’s address or phone number to verify the
story, Sasek said his mother suffered from cancer and was in a group home,
and that he did not know her phone number or address. Given Sasek’s
evasive and demonstrably untrue statements, jurors could have reasonably
concluded that he was not truthful in his explanations to police officers and
in fact knew or had reason to know the trailer was stolen. See State v.
Fulminante, 193 Ariz. 485, 494, ¶ 27, 975 P.2d 75, 84 (1999).

¶9            The jurors could also have inferred from witnesses proffered
by Sasek at trial that he knew or should have known the trailer was stolen.
See State v. Eastlack, 180 Ariz. 243, 258–59, 883 P.3d 999, 1014–15 (1994)
(noting that a determination of the sufficiency of the evidence includes
evidence presented by the defendant). Sasek’s own witnesses testified that
he purchased the trailer for an abnormally low price from a convicted thief
who demanded payment in cash, and that the sale took place in a



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                            STATE v. SASEK
                           Decision of the Court

supermarket parking lot at night. Thus, even under the evidence Sasek
presented, there was a sufficient basis from which to infer that he knew or
had reason to know the trailer was stolen, and he was not entitled to a
directed verdict of acquittal.

II.    Sentencing Claim.

¶10           Sasek argues that, in imposing sentences for the two
convictions, the superior court erred by considering Sasek’s failure to take
responsibility for the crimes in imposing sentences for the two convictions.
Because Sasek failed to object at sentencing, he bears the burden of
establishing fundamental, prejudicial error. See State v. Henderson, 210 Ariz.
561, 567–68, ¶¶ 19–20, 115 P.3d 601, 607–08 (2005).

¶11            Using a defendant’s lack of remorse as a sentencing factor
would be fundamental error. See State v. Trujillo, 227 Ariz. 314, 318, ¶ 15,
257 P.3d 1194, 1198 (App. 2011). But here, we find no error, much less
fundamental error. At sentencing, after Sasek made a statement that
questioned the fairness of the trial and asserted his innocence, the superior
court expressed a concern about Sasek’s “explanation” and “discussion.”
But the court’s remarks were addressed not to Sasek’s declaration that he
was innocent, but to his failure to appear for the reading of the verdict and
to his argument that his attorney’s stipulation that the lawnmower was not
at issue in this trial “made [his] witnesses have to change their stories” and
deprived him of the “whole truth” and “proper justice.”

¶12          The court clarified its concern about Sasek’s “explanation”
and “discussion” by saying:

       [J]ustice was done, from my perspective.

       [N]o one was required to testify falsely in this case by any
       means. Sometimes the testimony can’t include certain
       explanations, but that doesn’t make it false. So, from my
       perspective, you have been properly and duly convicted on
       both of these offenses.

¶13           The court also referred to Sasek’s failure to “take
responsibility” and appear for the reading of the verdict:

       I also note that you didn’t return to the courtroom when you
       knew you were supposed to. That does not help you, and
       given your attitude here today, that also plays into my
       evaluation.


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                           STATE v. SASEK
                          Decision of the Court

      You knew when you were supposed to be here, and you
      decided to not take responsibility and be here that day,
      forcing us to issue a bench warrant.

¶14          After noting—as aggravating factors—Sasek’s pecuniary
motivation and the harm caused to the victim whose trailer was stolen, the
court imposed a presumptive sentence for theft of means of transportation
(automobile), and a “slightly mitigated” sentence for theft of means of
transportation (trailer). Under these circumstances, Sasek has not
established fundamental error based on his assertion that the court
considered improper factors in determining the appropriate sentences.

                            CONCLUSION

¶15          For the foregoing reasons, we affirm Sasek’s convictions and
sentences.




                               :ama




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