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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                 MARK EDWARD HARRISON, Appellant.

                             No. 1 CA-CR 14-0293
                               FILED 6-11-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR 2013-422730-001
             The Honorable Robert E. Miles, Judge (Retired)

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Colby Mills
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Paul J. Prato
Counsel for Appellant
                           STATE v. HARRISON
                           Decision of the Court



                      MEMORANDUM DECISION

Presiding Judge Margaret H. Downie delivered the decision of the Court,
in which Judge Kenton D. Jones and Judge Jon W. Thompson joined.


D O W N I E, Judge:

¶1            Mark Edward Harrison appeals his conviction and sentence
for theft of means of transportation. Finding no error, we affirm.

                FACTS AND PROCEDURAL HISTORY1

¶2            Officer Burns stopped Harrison after he saw him run a stop
sign while driving a scooter.       Harrison had no driver’s license,
registration, or proof of insurance. He told Officer Burns he had just
finished fixing the scooter and was on his way to sell it to a friend.
Another officer ran the VIN number and discovered the scooter had been
reported stolen. When confronted with this information, Harrison stated
the scooter was not his and belonged to a neighbor.

¶3            Officer Burns placed Harrison under arrest and read him
Miranda warnings. Harrison chose to waive his rights and speak with the
officers. He stated the scooter belonged to Duane Jensen, who lived in an
apartment adjoining his at 2025 West Belmont. The officers determined
that address was an open field next to a school. They also searched
various databases but found no one named Duane Jensen.

¶4           Harrison was charged with one count of theft of means of
transportation. After a jury trial, he was convicted and sentenced as a
repetitive offender to 11.25 years’ imprisonment. Harrison 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), 13-4031, and -4033(A).




1      We view the evidence in the light most favorable to sustaining the
jury’s verdict. See State v. Nelson, 214 Ariz. 196, 196, ¶ 2, 150 P.3d 769, 769
(App. 2007).



                                      2
                           STATE v. HARRISON
                           Decision of the Court

                               DISCUSSION

I.     Sufficiency of Evidence

¶5            Harrison argues there was insufficient evidence to support
his conviction. We review the sufficiency of the evidence de novo. State v.
Pena, 235 Ariz. 277, 279, ¶ 5, 331 P.3d 412, 414 (2014). If, viewing the
evidence in the light most favorable to the State, any rational trier of fact
could have found the essential elements of the crime beyond a reasonable
doubt, we will affirm. State v. Montano, 204 Ariz. 413, 423, ¶ 43, 65 P.3d 61,
71 (2003), supplemented by 206 Ariz. 296, 77 P.3d 1246 (2003).

¶6            As charged, the State was required to prove beyond a
reasonable doubt that Harrison, without lawful authority, knowingly
controlled another person’s means of transportation while knowing or
having reason to know that it was stolen. A.R.S. § 13-1814(A)(5). The lack
of direct evidence of knowledge 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). “It is axiomatic that
intent or knowledge may be inferred from the circumstances surrounding
a person’s behavior or action.” State v. Martinez, 15 Ariz. App. 10, 12, 485
P.2d 600, 602 (1971).

¶7            The scooter’s owner testified he did not know Harrison and
had not given him permission to possess his scooter. When the scooter
was recovered, it had been painted and damaged. A toggle switch had
been installed to bypass the ignition, and the glove compartment had been
cut out so the steering lock could be disabled. Although Harrison testified
he did not know the scooter was stolen, jurors obviously disbelieved his
version of events. See State v. Toney, 113 Ariz. 404, 408, 555 P.2d 650, 654
(1976) (“Evidence is not insubstantial simply because testimony is
conflicting or reasonable persons may draw different conclusions from the
evidence.”); State v. Clemons, 110 Ariz. 555, 557, 521 P.2d 987, 989 (1974)
(“[T]he jury is not compelled to accept [the defendant’s] story or believe
his testimony.”).

¶8            Substantial evidence supports Harrison’s conviction for theft
of means of transportation.

II.    Cross-Examination

¶9           Harrison also contends the court erred by overruling
objections to questions posed during cross-examination. We review
evidentiary rulings for an abuse of discretion. State v. Blakely, 204 Ariz.


                                      3
                           STATE v. HARRISON
                           Decision of the Court

429, 437, ¶ 34, 65 P.3d 77, 85 (2003). “An abuse of discretion occurs when
the reasons given by the court for its actions are clearly untenable, legally
incorrect, or amount to a denial of justice.” State v. Arellano, 213 Ariz. 474,
478, ¶ 14, 143 P.3d 1015, 1019 (2006).

¶10           During his trial testimony, Harrison denied knowing the
scooter had been stolen and stated it was in his possession because he was
fixing it for neighbor Duane Jensen. Harrison further testified he had
stopped by the home of Duane’s friends before picking up the scooter. On
cross-examination, the prosecutor questioned Harrison about his failure to
produce any corroborating witnesses or documents. At one point, defense
counsel objected, arguing the State was putting Harrison “in a corner
where the explanation is he’s been in custody and he doesn’t have access
to anything.” The court overruled the objection. On redirect, the
following colloquy occurred between Harrison and defense counsel:

       Q:     [The State] asked you several questions about your
       access to certain paper work.

       A:     Uh-huh.

       Q:    Have you had any access since May 2013 to any of
       your paper work?

       A:     No, ma’am.

       ....

       Q:     Do you have access to your address book?

       A:     Nothing.

       Q:     Do you have access to your phone?

       A:     No, ma’am, nothing.

¶11           Members of the jury submitted questions for Harrison. In
discussing those questions during a sidebar conference, defense counsel
stated, “I have no problem him saying where his records are, if he has no
access to them. I think he’s going to have to go into he’s been in custody.”
Defense counsel objected to a juror question about prior felonies, but did
not object to the other juror questions. After the bench conference, the
court read various juror questions to Harrison, including: “Mr. Harrison,
where are your records, if you have no access to them?” Harrison



                                      4
                           STATE v. HARRISON
                           Decision of the Court

responded: “I’ve been in custody. I have not been able to get ahold of
nobody or nothing.”

¶12           Harrison argues the State impaired his constitutionally
guaranteed presumption of innocence by asking questions that forced him
to reveal his in-custody status. We disagree. A prosecutor may
“comment upon the defendant’s failure to present exculpatory evidence,
so long as the comment is not phrased to call attention to the defendant’s
own failure to testify.” State v. Fuller, 143 Ariz. 571, 575, 694 P.2d 1185,
1189 (1985); see also State ex rel. McDougall v. Corcoran, 153 Ariz. 157, 160,
735 P.2d 767, 770 (1987) (“Such comment is permitted by the well
recognized principle that the nonproduction of evidence may give rise to
the inference that it would have been adverse to the party who could have
produced it.”). Moreover, Harrison could have responded to the
questions without revealing that he was in custody. Although the
prosecutor’s questions implicitly challenged his version of events by
highlighting the lack of corroborating evidence, a defendant’s right to
testify on his own behalf does not include the unqualified right to have
only those facts favorable to his case brought out on cross-examination.
State v. King, 110 Ariz. 36, 39, 514 P.2d 1032, 1035 (1973). And when
Harrison ultimately did reveal his in-custody status, it was in response to
a juror’s question to which he did not object.

¶13            We find no abuse of discretion in overruling Harrison’s
objections to the State’s questions on cross-examination.

                              CONCLUSION

¶14           We affirm Harrison’s conviction and sentence.




                                   :ama




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