State v. Bartik ( 2021 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
SHERRY LYNN BARTIK, Appellant.
No. 1 CA-CR 20-0548
FILED 10-21-2021
Appeal from the Superior Court in Mohave County
No. S8015CR201900411
The Honorable Derek C. Carlisle, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee
Mohave County Legal Advocate’s Office, Kingman
By Jill L. Evans
Counsel for Appellant
STATE v. BARTIK
Decision of the Court
MEMORANDUM DECISION
Presiding Judge D. Steven Williams delivered the decision of the Court, in
which Judge David B. Gass and Judge James B. Morse Jr. joined.
W I L L I A M S, Judge:
¶1 Sherry Lynn Bartik appeals her conviction for second-degree
trafficking in stolen property and the resulting restitution order. For
reasons that follow, we affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 Craig Parker stole property from D.K.’s home, including
several unique pieces of jewelry. Within a month, Bartik arrived at a coin
and gold shop looking to sell the stolen jewelry. As they spoke, the shop
owner grew increasingly concerned Bartik obtained the jewelry in a
burglary. Bartik lacked information about the jewelry, expressed alarm that
some pieces were particularly valuable, and mentioned she worked as a
housecleaner, all of which the owner viewed as “red flags.” Bartik sold the
shop owner some of the jewelry, but wanted to do additional research on
the high-value pieces.
¶3 After Bartik left the shop, the owner contacted detectives and
provided them with evidence of the transaction, including the purchased
jewelry and sales receipt. Detectives could not locate Bartik using the
address she provided on the sales receipt but instead located her using their
internal database. Bartik told detectives she found the jewelry discarded on
the side of the road in what is commonly referred to as a “curb alert.” Bartik
could neither provide details of the purported “curb alert,” nor the
whereabouts of the high-value pieces. Bartik admitted to selling some of the
jewelry at the coin and gold shop.
¶4 The State charged Bartik with one count of second-degree
trafficking in stolen property, a Class 3 felony, naming Parker as her
co-defendant. In a separate proceeding, Parker was convicted of theft and
ordered to pay D.K. restitution. At Bartik’s trial, she moved unsuccessfully
for an acquittal under Arizona Rule of Criminal Procedure 20 and the jury
convicted her as charged.
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STATE v. BARTIK
Decision of the Court
¶5 After a restitution hearing, the trial court ordered Bartik to
pay restitution to the shop owner for the cost of the recovered jewelry and
to D.K. for the value of the unrecovered jewelry totaling $13,810.00. The
trial court suspended Bartik’s sentence and placed her on five years of
supervised probation with a 150-day jail term. This timely appeal followed.
We have jurisdiction under Article 6, Section 9, of the Arizona Constitution
and A.R.S. §§ 12-120.21(A)(1), 13-4031, and -4033(A)(1).
DISCUSSION
I. Sufficiency of the Evidence
¶6 Bartik argues insufficient evidence supports her conviction.
We review the sufficiency of the evidence de novo, considering all facts and
resolving all evidentiary conflicts in the light most favorable to sustaining
the verdict. See State v. Bible, 175 Ariz. 549, 595 (1993). We will reverse only
where a complete absence of probative facts supports the conviction, State
v. Childs, 113 Ariz. 318, 320 (1976), and will not reweigh the evidence or
evaluate the credibility of witnesses, State v. Cid, 181 Ariz. 496, 500 (App.
1995). Typically, evidence of a defendant’s mental state must be inferred
from the “behaviors and other circumstances surrounding the event.” State
v. Noriega, 187 Ariz. 282, 286 (App. 1996).
¶7 A person is guilty of second-degree trafficking in stolen
property if she recklessly sells, or possesses with the intent to sell, stolen
property to another person. See A.R.S. §§ 13–2301(B)(3), -2307(A). A person
acts recklessly if she “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).
¶8 The evidence at trial established that Bartik entered the shop
with the purpose of selling stolen jewelry. She sold some pieces, choosing
to keep others only upon learning of their value. Bartik behaved
suspiciously in the shop and in her interview with detectives. She appeared
dismayed at the value of some pieces, and gave a vague, nonsensical
explanation for possessing the jewelry. On these facts, the jury could
properly infer that Bartik acted with a reckless disregard in selling or
intending to sell stolen jewelry. See Noriega, 187 Ariz. at 286. Sufficient
evidence supports Bartik’s conviction for second-degree trafficking in
stolen property.
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STATE v. BARTIK
Decision of the Court
II. Restitution Order
¶9 Bartik challenges the trial court’s restitution order for the
unrecovered jewelry. She argues the loss did not arise from her conviction
and should be attributed solely to her co-defendant. We review the trial
court’s restitution order for an abuse of discretion. See State v. Slover, 220
Ariz. 239, 242, ¶ 4 (App. 2009). The trial court has substantial discretion in
determining the amount of restitution to be ordered, and we will uphold
the order if the amount bears a reasonable relationship to the victim’s loss.
See State v. Madrid, 207 Ariz. 296, 298, ¶ 5 (App. 2004) (citations omitted).
¶10 Arizona law requires the trial court order restitution for the
full economic loss to the victim. See A.R.S. § 13-603(C); State v. Steffy, 173
Ariz. 90, 93 (App. 1992). The trial court must “consider all losses caused by
the criminal offense or offenses for which the defendant has been
convicted.” See A.R.S. § 13-804(B). “Economic loss” is defined as “any loss
incurred by a person as a result of the commission of an offense.” A.R.S.
§ 13-105(16). Co-defendants are jointly and severally liable for the economic
loss caused by the criminal offense. See A.R.S. § 13-804(F); see also State v.
Lewis, 222 Ariz. 321, 326-27, ¶ 18 (App. 2009) (noting that two participants
in criminal conduct can be held liable if either or both caused the loss).
¶11 Bartik possessed the unrecovered jewelry, initially intended
to sell the pieces, and never returned them to detectives. This conduct falls
squarely within the definition of second-degree trafficking in stolen
property. See A.R.S. §§ 13–2301(B)(3), -2307(A). The trial court could
reasonably infer that the evidence underlying Bartik’s conviction, namely
her unlawful possession of the jewelry, directly resulted in D.K.’s economic
loss. See State v. Lindsley, 191 Ariz. 195, 197 (App. 1997) (requiring restitution
for loss resulting from a defendant’s possession of stolen property, despite
never being charged with theft). Even so, the trial court could find Bartik
and her co-defendant jointly and severally liable for the restitution. The loss
resulted from Bartik trafficking items stolen by her co-defendant and may
be attributed to either or both under Arizona law. See A.R.S. § 13-804(F);
Lewis, 222 Ariz. at 326-27, ¶¶ 18-19. The trial court was within its discretion
to order Bartik pay restitution for the unrecovered jewelry.
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STATE v. BARTIK
Decision of the Court
CONCLUSION
¶12 We affirm Bartik’s conviction and restitution order.
AMY M. WOOD • Clerk of the Court
FILED: JT
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