NOTICE: NOT FOR PUBLICATION.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.

THOMAS ALAN HIEMSTRA, Appellant.

No. 1 CA-CR 12-0678

Appeal from the Superior Court in Maricopa County

No. CR2011-150761-001

The Honorable William L. Brotherton, Jr., Judge

AFFIRMED IN PART; VACATED IN PART; REMANDED

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Alice Jones

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Cory Engle

Counsel for Appellant
STATE v. HIEMSTRA

Decision of the Court

2

MEMORANDUM DECISION

Judge Margaret H. Downie delivered the decision of the Court, in which 

Presiding Judge Kenton D. Jones and Judge Donn Kessler joined.

D O W N I E, Judge:

¶1 Thomas Hiemstra appeals his convictions for theft of means 

of transportation, possession of burglary tools, and theft. We affirm the 

convictions for theft of means of transportation and theft but vacate the 

conviction for possession of burglary tools and remand for resentencing.

FACTS AND PROCEDURAL HISTORY1

¶2 Officer McDonald was traveling southbound on Interstate 17 

when he spotted a white Infiniti idling in a gore point and displaying its 

hazard lights. A mountain bike protruded from the trunk. When the 

officer pulled behind the vehicle, it abruptly turned off its hazard lights 

and merged into traffic. Officer McDonald followed. The Infiniti engaged 

in abrupt maneuvering, initially entering an exit lane, but returning to the 

interstate when Officer McDonald also moved into the exit lane. At the 

next exit, the vehicle “jerked and cut through the gore point” at an exit 

ramp and left the interstate. Officer McDonald made a traffic stop. 

¶3 According to Officer McDonald, the Infiniti’s driver, later 

identified as Hiemstra, was “very nervous” and “sweating profusely.” 

Hiemstra was using a “manipulation key” to operate the vehicle.2 Officer 

McDonald found several tools inside the car, including a hacksaw, bolt 

cutters, and a screwdriver. Upon running the vehicle’s identification 

number, Officer McDonald discovered that the car had been reported

 1 We review the facts in the light most favorable to sustaining the 

verdicts. See State v. Guerra, 161 Ariz. 289, 293, 778 P.2d 1185, 1189 (1989). 

2 A manipulation key lacks cuts or grooves and is not specific to any 

vehicle. The manipulation key would have to be “manipulated, wiggled, 

jiggle[d], [or] wobbled” in the Infiniti’s ignition. A detective testified that 

it took him approximately 30 seconds to start the Infiniti using Hiemstra’s 

manipulation key. 
STATE v. HIEMSTRA

Decision of the Court

3

stolen. The mountain bike had also been reported stolen, but from a 

different owner. 

¶4 Hiemstra was charged with theft of means of transportation 

(count 1), a class 3 felony; possession of burglary tools (count 2), a class 6 

felony; and theft (count 3), a class 5 felony. A jury found him guilty of all 

three counts. Hiemstra timely appealed. We have jurisdiction pursuant 

to Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, 

and 13-4033(A)(1). 

DISCUSSION

¶5 Hiemstra challenges the sufficiency of the evidence 

supporting his convictions. “Th[e] question of sufficiency of the evidence 

is one of law, subject to de novo review on appeal.” State v. West, 226 Ariz. 

559, 562, ¶ 15, 250 P.3d 1188, 1191 (2011). Substantial evidence is such 

proof that “reasonable persons could accept as adequate and sufficient to 

support a conclusion of [the] defendant’s guilt beyond a reasonable 

doubt.” State v. Mathers, 165 Ariz. 64, 67, 796 P.2d 866, 869 (1990). 

“Reversible error based on insufficiency of the evidence occurs only where

there is a complete absence of probative facts to support the conviction.” 

State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996). “Both direct 

and circumstantial evidence should be considered in determining whether 

substantial evidence supports a conviction.” West, 226 Ariz. at 562, ¶ 16, 

250 P.3d at 1191. 

I. Theft of Means of Transportation

¶6 To convict Hiemstra of theft of means of transportation, the 

State was required to prove that, without lawful authority, he knowingly 

controlled another person’s vehicle, knowing or having reason to know 

that the vehicle was stolen. See A.R.S. § 13-1814(A)(5). Hiemstra does not 

deny that he was driving a stolen vehicle. He argues only that there was 

no evidence he knew or had reason to know the car was stolen. 

¶7 R.F., the Infiniti’s owner, testified at trial. He stated that he 

was out of the country when his car went missing from his carport. R.F. 

had the vehicle’s keys in his possession and had disabled the battery while 

he was gone. R.F. testified he did not give Hiemstra permission to drive 

his car.

¶8 The lack of direct evidence 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). Jurors could 
STATE v. HIEMSTRA

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conclude that Hiemstra’s attempts to elude Officer McDonald and his 

demeanor upon being stopped suggested consciousness of wrongdoing. 

See State v. Hunter, 136 Ariz. 45, 48-49, 664 P.2d 195, 198-99 (1983) (jury 

may consider flight as consciousness of guilt). The fact Hiemstra was 

operating the car with a manipulation key was further circumstantial 

evidence of guilt. A detective testified that “a normal person would not 

be able to walk up with this key, put it in the ignition and just turn the 

ignition as if it’s a normal key.” See State v. Martinez, 15 Ariz. App. 10, 12, 

485 P.2d 600, 602 (1971) (“It is axiomatic that intent or knowledge may be 

inferred from the circumstances surrounding a person’s behavior or 

action.”). Although Hiemstra testified he acquired the vehicle from his 

uncle and did not know it was stolen, jurors obviously disbelieved his 

version of events. See State v. Roberts, 139 Ariz. 117, 121, 677 P.2d 280, 284 

(App. 1983) (questions of witness credibility are for the jury to resolve). 

Substantial evidence supports the conviction for theft of means of 

transportation.

II. Theft

¶9 A.R.S. § 13-1802(A)(5) states that a person commits theft by

knowingly controlling, without legal authority, “property of another 

knowing or having reason to know that the property was stolen.” 

Hiemstra does not dispute being in possession of a stolen bicycle. He 

argues only that he was unaware the bike was stolen.

¶10 M.B. testified that he owned the mountain bike, which was 

locked to a rack mounted on his vehicle as of 10:00 p.m. on September 17, 

2011. The next morning, M.B. discovered that someone had broken his 

bike rack, cut the straps and detached the bungee cord securing the bike, 

and taken the bike. 

¶11 Officer McDonald stopped Hiemstra in the early morning 

hours of September 18, 2011. Hiemstra was traveling in a direction 

consistent with having left M.B.’s residence en route to his own home.

Officer McDonald identified tools inside the vehicle that could have been 

used to steal the bike.

¶12 “Unexplained possession of recently stolen goods can 

generate an inference of the requisite felonious intent.” State v. Rood, 11 

Ariz. App. 102, 103, 462 P.2d 399, 400 (1969). In addition, Hiemstra’s 

evasive maneuvers and demeanor, discussed supra, offered circumstantial 

evidence of guilt. See Hunter, 136 Ariz. at 48-49, 664 P.2d at 198-99. 

Hiemstra contends “[t]here was nothing inherent in the condition of the 
STATE v. HIEMSTRA

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bike to indicate it had been stolen.” But his possession of the bicycle on the 

day it was reported stolen, possession of tools appropriate for theft of the 

bike, route of travel, and behaviors suggesting consciousness of guilt

offered circumstantial evidence from which reasonable jurors could 

conclude that Hiemstra knew the bike was stolen.

III. Possession of Burglary Tools

¶13 The superior court instructed the jury as follows on the 

possession of burglary tools charge:

The crime of possession of burglary tools requires proof that 

the defendant:

1. Possessed any tool, instrument, or other article adapted or 

commonly used for committing burglary; and

2. Intended to use or permit the use of such an item in the 

commission of a burglary.

¶14 The State concedes insufficient evidence supported the 

possession of burglary tools conviction as instructed and that “[f]or 

purposes of determining whether sufficient evidence supports the jury’s 

verdict, it appears the evidence must be analyzed in terms of the charge 

actually submitted to the jury.”3 Although we are not bound by the 

State’s confession of error, State v. Stewart, 3 Ariz. App. 178, 180, 412 P.2d 

860, 862 (1966), we agree that insufficient evidence supports the conviction 

on the grounds submitted to the jury. 

¶15 In closing argument, the prosecutor relied on the tools found 

in the Infiniti’s trunk. He incorrectly told jurors that stealing a bicycle 

attached to a vehicle constitutes burglary of a non-residential structure. 

See A.R.S. § 13-1501(12) (defining “structure” as “any building, object, 

vehicle, railroad car or place with sides and a floor that is separately 

securable from any other structure attached to it and that is used for 

lodging, business, transportation, recreation or storage”). Although the 

State observes that the tools found in the trunk are “commonly used for 

committing burglaries,” it concedes “there was no evidence that Hiemstra 

used or intended to use them to commit a burglary.” As the State 

 3 The jury was not instructed that possession of burglary tools 

included “[b]uying, selling, transferring, possessing or using a motor 

vehicle manipulation key or master key.” See A.R.S. § 13-1505(A)(2).
STATE v. HIEMSTRA

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acknowledges, the evidence at most showed only that Hiemstra used or 

intended to use the tools to commit the theft of M.B.’s bicycle. The 

evidence does not support Hiemstra’s conviction for possession of 

burglary tools as instructed. 

CONCLUSION

¶16 For the reasons stated, we affirm Hiemstra’s convictions for 

theft of means of transportation and theft, vacate his conviction for 

possession of burglary tools, and remand for resentencing.