State of Arizona v. Glen Leo Gagnon

IN THE
ARIZONA COURT OF APPEALS
DIVISION TWO
THE STATE OF ARIZONA,
Appellee,
v.
GLENN LEO GAGNON,
Appellant.
No. 2 CA-CR 2014-0118
Filed December 3, 2014
Appeal from the Superior Court in Pima County
No. CR20120776001
The Honorable Casey F. McGinley, Judge Pro Tempore
AFFIRMED
COUNSEL
Thomas C. Horne, Arizona Attorney General
Joseph T. Maziarz, Section Chief Counsel, Phoenix
By Alan L. Amann, Assistant Attorney General, Tucson
Counsel for Appellee
Lori J. Lefferts, Pima County Public Defender
By Lisa M. Hise, Assistant Public Defender, Tucson
Counsel for Appellant
OPINION
Judge Vásquez authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Howard concurred.
STATE v. GAGNON
Opinion of the Court
V Á S Q U E Z, Judge:
¶1 After a jury trial, Glen Gagnon was convicted of
trafficking in stolen property and the trial court sentenced him to a
presumptive prison term of 6.5 years. On appeal, Gagnon argues
the court erred by denying his motion to dismiss the trafficking
charge because a more recent and specific statute, A.R.S. § 44-1630,
involving false representations in pawn transactions, applies. For
the reasons that follow, we affirm.
Factual and Procedural Background
¶2 We view the facts and all reasonable inferences
therefrom in the light most favorable to sustaining Gagnon’s
conviction. See State v. Haight-Gyuro, 218 Ariz. 356, ¶ 2, 186 P.3d 33,
34 (App. 2008). In January 2012, Gagnon called his former co-
worker, J.H., because Gagnon’s “credit card had been stolen, and . . .
he needed a place to stay in town for a couple days to straighten out
the situation with the bank.” Gagnon stayed with J.H. for two
nights. When J.H. returned from work on the third day, he noticed
several of his son’s video games and a video game console were
missing and called the police.
¶3 Later that month, a detective from the Pima County
Sheriff’s Department called J.H. to a pawn shop, where they had
found the missing console and most of the games. An employee of
the pawn shop gave the detective a copy of the ticket generated
when Gagnon had dropped off the items. The ticket included the
following certification:
All information in this report is
complete and accurate. I am the owner of
the goods described in this report or I am
authorized to enter into this pawn or sales
transaction on behalf of the owner of the
goods described in this report. I
understand that I will be guilty of a class 1
misdemeanor if the information in this
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STATE v. GAGNON
Opinion of the Court
report is not complete and accurate, if I am
not the owner of the goods pledged or sold
or if I am not authorized to enter into the
pawn or sale transaction on behalf of the
owner of the goods.
Gagnon had signed his name and provided his fingerprint on the
ticket.
¶4 Gagnon was indicted for second-degree trafficking in
stolen property. Before trial, he filed a motion to dismiss. He
argued his conduct amounted to making a false representation
during a pawn transaction pursuant to § 44-1630, a misdemeanor.
He further argued § 44-1630 conflicts with the trafficking statute
and, therefore, the legislature must have “intended for a less serious
offense where stolen property is the subject of a pawn transaction.”
The trial court denied the motion.
¶5 The jury found Gagnon guilty and the trial court
sentenced him as described above. This appeal followed.1 We have
jurisdiction pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-
4033(A)(1).
Discussion
¶6 Gagnon argues the trial court erred by denying his
motion to dismiss because “a more specific statute applied” to his
conduct. “We review a trial court’s denial of a motion to dismiss for
an abuse of discretion but, to the extent it presents a question of
1“[D]ue to clerical error,” Gagnon failed to timely file a notice
of appeal after entry of the judgment and sentence. Nevertheless,
the trial court granted his motion for a delayed appeal. See Ariz. R.
Crim. P. 32.1(f). Thus, we have jurisdiction. See State v. Rosales, 205
Ariz. 86, ¶ 10, 66 P.3d 1263, 1266 (App. 2003) (Rule 32.1(f) “provides
a procedural mechanism whereby a defendant who has failed to
appeal through no fault of his or her own can obtain jurisdiction in
this court.”); cf. State v. Scott, 186 Ariz. 503, 504, 924 P.2d 507, 508
(App. 1996) (explaining basis for appellate jurisdiction).
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STATE v. GAGNON
Opinion of the Court
statutory interpretation, our review is de novo.” State v. Villegas, 227
Ariz. 344, ¶ 2, 258 P.3d 162, 163 (App. 2011).
¶7 When there is conflict between two statutes, the more
recent, specific statute normally controls over the older, more
general statute. See State v. Johnson, 195 Ariz. 553, ¶ 8, 991 P.2d 256,
258 (App. 1999); State v. Canez, 118 Ariz. 187, 190-91, 575 P.2d 817,
820-21 (App. 1977). In effect, the specific statute creates “an
exception or qualification” to the general statute. State v. Weiner, 126
Ariz. 454, 456, 616 P.2d 914, 916 (App. 1980). But this principle
applies only when two statutes actually conflict. See id.; State v.
Keener, 206 Ariz. 29, ¶ 13, 75 P.3d 119, 122 (App. 2003). A conflict
arises when “the elements of proof essential to find guilt under [the
specific statute] are . . . identical to the elements of proof essential to
find guilt under the [general statute].” State v. Far W. Water & Sewer
Inc., 224 Ariz. 173, ¶ 21, 228 P.3d 909, 920 (App. 2010).
¶8 Section 13-2307(A), A.R.S., states, “[a] person who
recklessly traffics in the property of another that has been stolen is
guilty of trafficking in stolen property in the second degree.” See
also § 13-2307(C) (class three felony); 1977 Ariz. Sess. Laws, ch. 142,
§ 82; 1978 Ariz. Sess. Laws, ch. 201, § 154. In contrast, § 44-1630
states:
A person who gives false
information or provides false
representation as to the person’s true
identity or as to the person’s ownership
interest in property in order to receive
monies or other valuable consideration
from a pawnbroker, second hand dealer,
scrap metal dealer or dealer in precious
metals and who receives monies or other
valuable consideration from a pawnbroker,
second hand dealer, scrap metal dealer or
dealer in precious metals is guilty of false
representation.
See also A.R.S. § 44-1631(B) (class one misdemeanor); 1994 Ariz. Sess.
Laws, ch. 230, § 10.
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STATE v. GAGNON
Opinion of the Court
¶9 These statutes do not conflict. Section 13-2307(A)
criminalizes the act of disposing of stolen property and can apply
under a broad set of circumstances.2 Here, J.H. was the victim of
that offense. In contrast, § 44-1630 focuses on the act of providing
false information to a “pawnbroker, second hand dealer, scrap metal
dealer or dealer in precious metals,” such as when Gagnon signed
the pawn ticket in this case. See A.R.S. §§ 44-1621 through 44-1632
(regulating pawnbrokers). In addition, the state must prove reckless
conduct pursuant to § 13-2307(A), whereas § 44-1630 defines a strict-
liability offense. See § 44-1631 (classifying pawn-shop offenses and
indicating which carry scienter requirements); State v. Slayton, 214
Ariz. 511, ¶ 10, 154 P.3d 1057, 1060 (App. 2007) (describing strict–
liability, regulatory offenses). Thus, there is no indication the
legislature intended § 44-1630 to preempt § 13-2307(A) where stolen
property is sold in a pawn transaction. See Weiner, 126 Ariz. at 456,
616 P.2d at 916.
¶10 Moreover, the decision to charge and prosecute Gagnon
under § 13-2307(A) or § 44-1630 was within the prosecutor’s sound
discretion. See State v. Tsosie, 171 Ariz. 683, 685, 832 P.2d 700, 702
(App. 1992). When a defendant can be prosecuted under two
separate statutes for the same conduct, “the prosecutor has the
discretion to determine which statute to apply,” State v. Lopez, 174
Ariz. 131, 143, 847 P.2d 1078, 1090 (1992), so long as that election
does not discriminate against a particular class of defendants, State
v. Johnson, 143 Ariz. 318, 321, 693 P.2d 973, 976 (App. 1984). Gagnon
has presented no such evidence here. We thus find no error in his
prosecution for trafficking in stolen property in the second degree.
See Villegas, 227 Ariz. 344, ¶ 2, 258 P.3d at 163.
2 “Traffic” is defined in A.R.S. § 13-2301(B)(3) as “to sell,
transfer, distribute, dispense or otherwise dispose of stolen property
to another person, or to buy, receive, possess or obtain control of
stolen property, with the intent to sell, transfer, distribute, dispense
or otherwise dispose of the property to another person.”
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STATE v. GAGNON
Opinion of the Court
Disposition
¶11 For the foregoing reasons, we affirm Gagnon’s
conviction and sentence.
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