State v. Bennett

NOTICE: NOT FOR PUBLICATION.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.

JOSEPH MATTHEW BENNETT, Appellant.

No. 1 CA-CR 15-0381
FILED 8-18-2016

Appeal from the Superior Court in Maricopa County
No. CR 2011-157395-001 SE
The Honorable Jose S. Padilla, Judge

AFFIRMED

COUNSEL

Arizona Attorney General’s Office, Phoenix
By Myles A. Braccio
Counsel for Appellee

Michael J. Dew, Attorney at Law, Phoenix
By Michael J. Dew
Counsel for Appellant

STATE v. BENNETT
Decision of the Court

MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which
Presiding Judge Samuel A. Thumma and Judge Jon W. Thompson joined.

D O W N I E, Judge:

¶1 Joseph Matthew Bennett (“Appellant”) appeals his
convictions and sentences for theft and attempted trafficking in stolen
property. For the following reasons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 Appellant and another individual (“Codefendant”) stole
property from the home of J.M. and P.M. The two men later rented a hotel
room, where they laid out the stolen items to “take inventory” and
determine what was valuable. Codefendant “felt horrible” about
committing the crime. He left the hotel and drove to his parents’ home,
where he confessed and told his parents to call the police. When officers
arrived, Codefendant admitted his role in the theft and disclosed the
location of the stolen property.

¶3 Officers arrested Appellant in a hotel room adjoining the
room he and Codefendant had rented, where Appellant was attempting to
sell some of the stolen jewelry. During police questioning, Appellant
admitted his involvement in the theft.

¶4 A jury found Appellant guilty of the charged offenses and
determined that the stolen property was worth between $4,000 and
$25,000, making the theft conviction a class 3 felony. See Ariz. Rev. Stat.
(“A.R.S.”) § 13-1802(G). Appellant timely appealed. We have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A).

DISCUSSION

¶5 The only issue Appellant raises on appeal is whether there
was sufficient evidence that the stolen property had a value between
$4,000 and $25,000. To set aside a verdict based on insufficient evidence,
“it must clearly appear that upon no hypothesis whatever is there
sufficient evidence to support the conclusion reached by the jury.” State v.
Arredondo, 155 Ariz. 314, 316 (1987).

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STATE v. BENNETT
Decision of the Court

¶6 Appellant moved for a judgment of acquittal at trial, arguing
P.M.’s testimony about the value of the property stolen from her home
was “far from substantial evidence.” The court denied the motion and
later instructed the jury as follows:

“Value” means the fair market value of the property or
services at the time of the theft. When property has an
undeterminable value, you shall determine its value, and in
reaching your verdict may consider all relevant evidence,
including evidence of the property’s value by its owner.

Appellant did not object to this instruction, which is consistent with the
statutory definition of “value.” See A.R.S. § 13-1801(A)(15).

¶7 “Ordinarily, the owner of property is competent to give an
opinion of its value.” State v. Rushing, 156 Ariz. 1, 4 (1988). P.M. testified
about the stolen property and offered values for several items that officers
had recovered and photographed. She also testified that she received an
insurance payment of $53,517.39 as a result of the theft, and she relied on
purchase prices and prior appraisals in arriving at her value estimates for
various items.

¶8 Based on P.M.’s testimony, reasonable jurors could conclude
that Appellant stole property valued at between $4,000 and $25,000. We
reject Appellant’s assertion that because the value of items that were not
recovered and returned to the victims totaled less than $1,000, the jury
could not factually conclude that he stole more than $4,000 worth of
property. Appellant cites no authority for this novel proposition, and we
are aware of none. Such a proposition is contrary to the definition of theft,
which includes knowingly controlling property of another with the intent
to deprive the other person of such property. See A.R.S. § 13-1802(A)(1).
Moreover, adopting Appellant’s flawed logic, he could steal a master
artwork valued at $10 million, but if it were later recovered and returned
to its rightful owner, he could not be found guilty of theft. We reject such
an unsupported (and unsupportable) claim.

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STATE v. BENNETT
Decision of the Court

CONCLUSION

¶9 We affirm Appellant’s convictions and sentences.

Amy M. Wood • Clerk of the court
FILED: AA

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