                          NOTICE: NOT FOR PUBLICATION.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.

                    CLINT JASON ARNOLD, Appellant.

                             No. 1 CA-CR 13-0551
                                   FILED 9-9-14


            Appeal from the Superior Court in Mohave County
                         No. S8015CR201100673
                 The Honorable Steven F. Conn, Judge

                                  AFFIRMED


                                   COUNSEL

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

Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant


                       MEMORANDUM DECISION

Presiding Judge John C. Gemmill delivered the decision of the Court, in
which Judge Peter B. Swann and Judge Patricia A. Orozco joined.
                            STATE v. ARNOLD
                            Decision of the Court

G E M M I L L, Judge:

¶1             Clint Jason Arnold appeals from his conviction of and
sentence for theft, a class 4 felony. Arnold’s counsel filed a brief in
compliance with Anders v. California, 386 U.S. 738 (1967), and State v. Leon,
104 Ariz. 297, 451 P.2d 878 (1969), stating that she has searched the record
and found no arguable question of law and requesting that this court
examine the record for reversible error. Arnold was afforded the
opportunity to file a pro se supplemental brief and he has done so. See State
v. Clark, 196 Ariz. 530, 537, ¶ 30, 2 P.3d 89, 96 (App. 1999). For the following
reasons, we affirm.

                              BACKGROUND

¶2             We view the evidence in the light most favorable to
upholding the jury’s verdict. See State v. Carrasco, 201 Ariz. 220, 221, ¶ 1, 33
P.3d 791, 792 (App. 2001). Arnold was charged with one count of theft, a
class 4 felony, in violation of Arizona Revised Statute (“A.R.S.”) section 13-
1802(A)(1).

¶3             Before trial, Arnold requested to waive counsel and the trial
court granted the request and appointed Sandra Carr as advisory counsel.
Arnold filed seven pro per motions before trial, all of which were denied
by the trial court. After the court denied his motions, Arnold waived his
right to a jury and the court granted his request for a bench trial. Arnold
then withdrew his waiver of counsel and the court re-appointed Carr to
represent him.

¶4              The following evidence was presented at trial: Richard
Knowles testified that he knew the victim, Don Farrell, as a neighbor and
business associate. On April 12, 2011, Knowles observed a red vehicle with
a trailer pull behind Farrell’s property. He called Farrell to ask if anyone
had permission to be on the property. When Farrell answered in the
negative, Knowles proceeded to call the sheriff. Shortly thereafter, he
entered onto the property and observed both a red Suburban pulling a
trailer full of parts and a camouflage-painted Toyota truck. He also saw the
sheriff’s officer taking Arnold into custody. Knowles testified that he was
familiar with Farrell’s inventory and that the list of items taken was
“reasonably accurate.” Knowles, who has thirty-seven years of experience
in the trucking and towing business, also testified as to the value of the
several dozen items taken from Farrell’s property. These items ranged in
individual value from $150 to $1500.




                                       2
                           STATE v. ARNOLD
                           Decision of the Court

¶5            Don Farrell testified that he was called out to his property
during a theft in progress. He testified that no one had permission to go on
his property and take any of the items. Farrell identified Arnold as one of
the men on his property. Farrell also identified a number of the parts as his.

¶6            Ray Foreman ran an automotive repair business in Kingman
and was retained by Arnold to testify as to the value of the items taken. In
his opinion, the parts taken weighed about two tons and were worth about
$500 in scrap value. Foreman testified that many of the parts only had value
as scrap metal. Arnold testified in his own defense. He testified that he
operated a debris management company and had known Farrell since 1979.
In October of 2010 Arnold had a conversation with Farrell about the
possibility that Arnold would clean up Farrell’s property for scrap metal.
Arnold claimed that he and Farrell were “agreeing in principle at that
time.” Arnold also testified that he thought the parts had value only as
scrap metal and he would not have taken anything that he thought was
useable. Arnold admitted that there was no agreement in writing.
Although the “understanding” was reached in October of 2010, it was not
until April of 2011 that Arnold actually returned to pick up the parts he
claimed were part of this agreement.

¶7           The trial court found Arnold guilty of theft, a class 4 felony.
Arnold was placed on three years of supervised probation and, as a
condition of probation, was ordered to spend 120 days in the Mohave
County Jail. Arnold filed a timely notice of appeal and amended notice of
appeal from the judgment and sentence. We have jurisdiction under the
Arizona Constitution Article VI, section 9, and A.R.S. §§ 12-120.21(A)(1), 13-
4031, and 13-4033(A).

                                ANALYSIS

¶8            Arnold’s supplemental brief raises issues related to the
motions he filed before and during trial.

I.     Arnold’s motion to remand and request to appear before a grand
       jury are irrelevant

¶9             Arnold asks this court to consider two motions concerning an
initial indictment filed before the indictment that brought the charge on
which Arnold went to trial. The State moved to dismiss this initial
indictment, however, and the trial court dismissed the first indictment
without prejudice. Because Arnold’s motions to remand and request to
appear before the grand jury pertain to the dismissed indictment, such



                                      3
                           STATE v. ARNOLD
                           Decision of the Court

motions cannot form the foundation for an assignment of error in this
appeal.

II.    The trial court did not err in denying Arnold’s Rule 20(a) motion
       and declining to rule on his Rule 20(b) motion

¶10            Before trial, Arnold moved for acquittal pursuant to Arizona
Rule of Criminal Procedure 20(a). The trial court denied the motion as
premature. Arnold’s counsel brought a second oral Rule 20(a) motion after
the close of the State’s evidence. The trial court denied this motion as well.

¶11            We review the trial court’s denial of the Rule 20 motion to
acquit de novo. State v. Boyston, 231 Ariz. 539, 551, ¶ 59, 298 P.3d 887, 899
(2013). Before the verdict, a defendant may move for a judgment of
acquittal under Rule 20(a) if no substantial evidence warrants a conviction.
Ariz. R. Crim. P. 20(a). “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, 796 P.2d 866, 869 (1990) (quoting
State v. Jones, 125 Ariz. 417, 419, 610 P.2d 51, 53 (1980)). “[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, 250 P.3d 1188, 1191 (2011) (citations omitted). Under A.R.S.
§ 13-1802(A)(1), 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[.]” Theft of property with a value
of three thousand dollars or more but less than four thousand is a class 4
felony. A.R.S. § 13-1802(G).

¶12           We conclude that substantial evidence supports Arnold’s
conviction. The only contested elements at trial were Arnold’s knowledge
that he lacked lawful authority to take the property and the value of the
property. Farrell’s testimony was sufficient to allow a reasonable trier of
fact to conclude that Arnold took the property without lawful authority.
The basis of Arnold’s defense – that he thought he had permission to take
the parts – was an alleged agreement between himself and Farrell. Farrell
positively testified that no one had authority to take the items, and Arnold
himself admitted that the conversation giving rise to his purported belief
happened six months before he attempted to take the parts. Furthermore,
there was no written agreement between Farrell and Arnold. These facts
allowed the trial court to reasonably conclude that Arnold knew that he
lacked the lawful authority to take the items.


                                      4
                           STATE v. ARNOLD
                           Decision of the Court

¶13           Additionally, the value of the property was disputed. The
prosecution’s expert testified that the value of the property exceeded $3000,
and the defense expert contested this figure. The trial judge was entitled to
resolve this dispute by choosing to believe either the prosecution’s expert
or Arnold’s expert. The prosecution’s expert testimony, if believed,
established the value of the property as greater than the required $3000.
Thus, there is substantial evidence to support the trial judge’s
determination of value.

¶14            Arnold filed an additional Rule 20(b) motion to acquit after
trial, but the motion was filed as though Arnold was representing himself.
The trial court took no action on the motion because Arnold was
represented by counsel at that time, and he was not entitled to hybrid
representation.     Hybrid representation is concurrent or alternate
representation by both defendant and attorney. See State v. Murray, 184
Ariz. 9, 27, 906 P.2d 542, 560 (1995). Although a trial court may permit
hybrid representation, there is no automatic right to such representation.
Id. Thus, the trial court had no obligation to take any action on Arnold’s
pro per motion because he was represented by counsel when it was made.
Furthermore, even if we were to consider the merits on Arnold’s 20(b)
motion, substantial evidence supports the verdict.

III.   Arnold failed to timely object to the grand jury proceedings

¶15           Arnold asks this court to review his motion to dismiss under
Arizona Rule of Criminal Procedure 16.6. Rule 16.6 provides that the court
“on motion of the defendant, shall order that a prosecution be dismissed
upon finding that the indictment, information, or complaint is insufficient
as a matter of law.” Ariz. R. Crim. P. 16.6(b).

¶16            Although Arnold insists that he did not file this motion in
order to contest the propriety of the grand jury procedure, his only assertion
is that the grand jury should have been informed of his request to appear
before it and present exculpatory evidence. Arnold makes no argument
that the indictment itself is insufficient. Thus, the trial court correctly
characterized his motion under Rule 12.9 rather than Rule 16.6. See, e.g.,
State v. Young, 149 Ariz. 580, 587, 720 P.2d 965, 972 (App. 1986) (explaining
that Rule 12.9 is the only method for challenging grand jury processes).
Under Rule 12.9, a motion challenging the sufficiency of the grand jury
process must be brought within twenty-five days of the grand jury’s
indictment. Arnold brought this motion nearly two years after the grand
jury proceedings in this case. Accordingly, he waived his right to challenge
the grand jury proceedings by failing to file within the required time limits.


                                      5
                            STATE v. ARNOLD
                            Decision of the Court

See, e.g., State v. Merolle, 227 Ariz. 51, 53 ¶ 9, 251 P.3d 430, 432 (App. 2011).
The trial court did not err in denying his motion.

IV.    The trial court did not abuse its discretion when it denied
       Arnold’s Rule 8 motion to dismiss

¶17            Arnold also asks this court to review his motion to dismiss for
denial of the right to a speedy trial. He argues that the time limit in Arizona
Rule of Criminal Procedure 8.2(a)(2) was violated because he was not tried
within 180 days of his arraignment. Rule 8.2(a)(2) provides that a person
shall be tried “180 days from arraignment if the person is released[.]” If the
court determines that this time limit has been violated then “it shall on
motion of the defendant, or on its own initiative, dismiss the prosecution
with or without prejudice.” Ariz. R. Crim P. 8.6. Rule 8.4 provides that
certain periods of delay shall be excluded from computing time under Rule
8.2 including “[d]elays occasioned by or on behalf of the defendant,
including, but not limited to . . . the defendant's absence[.]” Ariz. R. Crim.
P. 8.4(a). A defendant cannot request continuances and then argue on
appeal that these delays violated the time limits in Rule 8. State v. Gretzler,
126 Ariz. 60, 71, 612 P.2d 1023, 1034 (1980). We review a trial court’s denial
of a Rule 8 motion for abuse of discretion. State v. Hunter, 227 Ariz. 542,
543, ¶ 4, 260 P.3d 1107, 1108 (App. 2011).

¶18           We find no error in the trial court’s denial of Arnold’s Rule 8
motion. The record clearly reveals that the two-year delay was the result of
Arnold’s numerous requests for continuance. Arnold’s contention that his
requests for continuance are not excluded because they were not in writing
ignores 8.4(a). His requests for continuance are properly considered
“delays occasioned by or on behalf” of him. Additionally, 8.4(a) excludes
delays caused by a defendant’s absence. Defendant was not present at the
final management conference, and as a result, the trial date was vacated
until Arnold was returned to the court’s jurisdiction. This delay was caused
by his absence and is excluded. The time from May 9, 2011 when Arnold
was first arraigned until July 11, 2011 when he moved to continue the
omnibus hearing counts towards the Rule 8 time limit and amounted to
sixty-three days. The time between the September 26, 2011 omnibus
hearing and the trial date of November 29, 2011 would have been sixty-four
days, but Arnold asked for a continuance on November 14. Every other
delay was caused at Arnold’s request, on his own or jointly with the
prosecution. These requests are delays “occasioned by or on behalf of”
Arnold. Our review of the record indicates that Arnold was timely tried,
and the trial court therefore did not abuse its discretion when it denied
Arnold’s motion to dismiss.


                                       6
                         STATE v. ARNOLD
                         Decision of the Court

                           CONCLUSION

¶19           Based on our independent review of the record, we find no
reversible error and affirm Arnold’s conviction and sentence.




                                :JT



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