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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

JASON LEE HAWTHORNE, Appellant.

No. 1 CA-CR 16-0038

Appeal from the Superior Court in Maricopa County

No. CR2014-141365-001

The Honorable Hugh E. Hegyi, Judge

CONVICTIONS AFFIRMED AS MODIFIED; REMANDED FOR 

RESENTENCING

COUNSEL

Arizona Attorney General’s Office, Phoenix

By Michael Valenzuela

Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix

By Christopher V. Johns

Counsel for Appellant

Jason Lee Hawthorne, Cocolalla, ID

Appellant
STATE v. HAWTHORNE

Decision of the Court

2

MEMORANDUM DECISION

Judge Kent E. Cattani delivered the decision of the Court, in which 

Presiding Judge Margaret H. Downie and Judge Donn Kessler joined.

C A T T A N I, Judge:

¶1 Jason Lee Hawthorne appeals his convictions and sentences 

for theft, a class 2 felony, and theft of means of transportation, a class 3 

felony. Hawthorne’s counsel filed a brief in accordance with Anders v. 

California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297 (1969),

certifying that, after a diligent search of the record, he found no arguable 

question of law that was not frivolous. Counsel asks this court to search the 

record for reversible error. See State v. Clark, 196 Ariz. 530, 537, ¶ 30 (App. 

1999).

¶2 Hawthorne filed a supplemental brief in which he raises the 

following issues: (1) the sufficiency of the evidence to prove that he knew 

or should have known the trailer was stolen, and (2) potential anti-military 

jury bias. Additionally, we ordered Penson1 briefing to address whether 

Hawthorne’s theft conviction was properly classified as a class 2 felony. For 

reasons that follow, and consistent with the State’s concession of error, we 

reclassify Hawthorne’s theft conviction as a class 4 felony and remand for 

resentencing. We affirm in all other respects.

FACTS AND PROCEDURAL BACKGROUND

¶3 In early July 2014, Hawthorne came across a trailer in a 

parking lot designated for the resale of vehicles (the “lemon lot”) on Luke 

Air Force Base. Although vehicles parked in the lemon lot typically display 

a “for sale” sign, the trailer was not marked for sale. The trailer also had a 

flat tire. Hawthorne was interested in purchasing the trailer, and returned 

to look at it several times over the next few weeks.

¶4 A few weeks later, Hawthorne noticed that a sticker had been 

placed on the trailer, informing the owner that it had been improperly 

parked in the lemon lot and that it was subject to being towed. Hawthorne 

inquired with the base’s Outdoor Recreation Office and Security Forces 

 

1 Penson v. Ohio, 488 U.S. 75 (1988).
STATE v. HAWTHORNE

Decision of the Court

3

about whether he could claim the trailer as abandoned property. Neither 

office had information about the trailer, but they rejected his request for

permission to remove it. Security Forces referred him to the base legal 

department, who told Hawthorne they would not be able to meet with him 

for two weeks.

¶5 The next day, Hawthorne drove his truck to the lemon lot, cut 

the trailer’s hitch lock, and towed the trailer back to his house in Peoria. He

thereafter fixed the trailer’s flat tire and obtained temporary registration 

from a third-party Motor Vehicle Division (“MVD”) location. He stored the 

trailer and its contents at a secure storage facility.

¶6 The trailer’s owners reported the trailer stolen the day after 

Hawthorne removed it. They had stored the trailer in the lemon lot while 

they looked for housing after a cross-country move. The trailer contained 

furniture, electronics, children’s clothes, toys, and other belongings. After 

the trailer was taken from the lemon lot, the owners filed an insurance claim 

for $50,000. Base Security Forces eventually found Hawthorne after 

reviewing security footage from the day the trailer was taken. Hawthorne 

returned the trailer within a few hours of being contacted. Nothing had 

been removed from the trailer.

¶7 Hawthorne was charged with theft of property worth 

between $25,000 and $100,000, a class 2 felony, and theft of means of 

transportation, a class 3 felony. A jury convicted Hawthorne of both counts. 

For purposes of the theft count, the jury assigned the property a value of

“$3,000 or more, but less than $25,000.”

¶8 The superior court suspended imposition of sentence on both 

counts and placed Hawthorne on concurrent terms of two years’

supervised probation. The court ordered Hawthorne to serve six months 

in jail as a condition of his probation for the theft count, with two days of 

credit for time served. Hawthorne timely appealed.

DISCUSSION

I. Classification of Hawthorne’s Theft Conviction.

¶9 We ordered Penson briefing to address whether the record 

supports classifying Hawthorne’s theft conviction as a class 2 felony and, if 

not, whether the conviction should have been classified as a class 3 or class 

4 felony. Because Hawthorne did not raise this issue in superior court, we 

review for fundamental, prejudicial error. See State v. Henderson, 210 Ariz. 

561, 567–68, ¶¶ 19–20 (2005).
STATE v. HAWTHORNE

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¶10 The classification of theft depends on the fair market value of 

the goods stolen at the time of the theft. Ariz. Rev. Stat. (“A.R.S.”) § 13-

1802(G); see also A.R.S. § 13-1801(A)(15).

2 Theft is a class 2 felony if the 

goods stolen have a value of $25,000 or more at the time of the theft, a class 

3 felony if the goods are worth at least $4,000 but less than $25,000, and a 

class 4 felony if the goods have a value of at least $3,000 but less than $4,000. 

A.R.S. § 13-1802(G). Because the value of the property controls the 

classification of the offense—and, by extension, the resulting sentence—it 

must be found by the jury. See State v. Wolter, 197 Ariz. 190, 192, ¶ 12 (App. 

2000).

¶11 As the State concedes, Hawthorne’s sentence resulted in 

fundamental error because he was sentenced for a class 2 felony despite the 

jury’s finding that the stolen property had a value of “$3,000 or more, but 

less than $25,000.” See State v. Thues, 203 Ariz. 339, 340, ¶ 4 (App. 2002). 

The jury’s verdict did not support classifying Hawthorne’s conviction as a 

class 2 felony, which would have required a finding that the property had 

a value of at least $25,000. Moreover, the jury’s verdict is insufficient to 

support reclassifying the conviction as a class 3 felony, as the jury did not 

make a finding that the property had a value of at least $4,000. Thus, we 

reclassify Hawthorne’s conviction as a class 4 felony because the jury’s 

verdict only shows that the property was worth at least $3,000. See A.R.S. § 

13-4037(A).

¶12 Reclassification of Hawthorne’s sentence from a class 2 to a 

class 4 felony reduces the maximum term of probation he could have faced 

from seven years to four years. A.R.S. § 13-902(A). Hawthorne received 

two years of probation, which would be permissible under either 

classification. Nevertheless, we will not assume the superior court would 

have imposed the same sentence if Hawthorne’s conviction had been 

properly classified, and we thus remand for resentencing.

II. Hawthorne’s Pro Se Supplemental Brief.

¶13 Hawthorne argues that the State failed to present sufficient 

evidence that he knew or should have known the trailer was stolen and that 

the jury potentially suffered from an impermissible anti-military bias. 

Because Hawthorne did not raise these issues at trial, we review only for 

 

2 Absent material revisions after the relevant date, we cite a statute’s 

current version.
STATE v. HAWTHORNE

Decision of the Court

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fundamental, prejudicial error. See Henderson, 210 Ariz. at 567–68, ¶¶ 19–

20.

A. Sufficiency of the Evidence.

¶14 Hawthorne was convicted of theft under A.R.S. § 13-

1802(A)(5), which requires the State to prove that “without lawful 

authority, the [defendant] knowingly . . . [c]ontrol[led] property of another 

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

“stolen property” is not defined in § 13-1802 or its accompanying 

definitions, the jury instructions (consistent with the definition applicable 

to the crime of trafficking in stolen property, see A.R.S. §§ 13-2301(B)(2), -

2307) defined stolen property as “property of another . . . that has been the 

subject of any unlawful taking.”

¶15 Hawthorne argues that the State failed to present sufficient 

evidence to prove that the trailer was stolen, or that he knew or should have 

known that the trailer was stolen.

3 These arguments rely heavily on 

Hawthorne’s asserted good-faith belief that he was following Arizona’s 

abandoned vehicle statutes, A.R.S. §§ 28-4801 to -4884.

¶16 Sufficient evidence supports the jury’s conclusion that the 

trailer was stolen. Hawthorne never received permission from any party 

with authority to authorize the trailer’s removal. The instructions attached 

to the MVD-provided Abandoned Vehicle Report warn that a person who 

removes an abandoned vehicle from private property “must obtain written 

authorization from the owner or lessee of the property on a form prescribed 

by the Motor Vehicle Division.” See A.R.S. § 28-4834(D). But when

Hawthorne filled out an Abandoned Vehicle Report during his attempt to 

claim the trailer, he wrote “N/A” under “Vehicle Removal Ordered By,” 

and he did not provide any written authorization permitting him to remove 

 

3 Hawthorne also claims that there was insufficient evidence to prove 

that he intended to permanently deprive the victims of their property. See 

A.R.S. §§ 13-1802(A)(1), -1814(A)(1). But intent to permanently deprive, 

although relevant to a different manner of committing theft, is not an 

element of theft by controlling stolen property, the only theory of theft 

presented to the jury. See A.R.S. §§ 13-1802(A)(5), -1814(A)(5). We therefore 

need not consider whether the evidence presented was sufficient to prove 

Hawthorne intended to permanently deprive the victims of their property.
STATE v. HAWTHORNE

Decision of the Court

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the trailer. The jury could reasonably conclude from this evidence that

Hawthorne stole the trailer.4

¶17 This evidence also supports the jury’s conclusion that 

Hawthorne knew or had reason to know the trailer was stolen. The 

cautionary language of the Abandoned Vehicle Report instructions put

Hawthorne on notice that he needed written authorization to remove the 

trailer. Hawthorne also could have inferred the wrongfulness of his actions 

from the refusal of military personnel to give him permission to remove the 

trailer. Because § 13-1802(A)(5) only requires that Hawthorne had reason 

to know the trailer was stolen, his alleged good-faith belief that he had 

complied with the abandoned vehicle statutes does not excuse him from 

culpability. See State v. Morse, 127 Ariz. 25, 31 (1980) (noting that theft by 

controlling stolen property does not require specific intent, and reiterating 

that “ignorance, or lack of knowledge, of the law which forbids the conduct 

with which one is charged is no defense”).

B. Jury Bias.

¶18 Hawthorne further argues that the jury’s verdict could not 

have been fair and impartial because none of the jurors had military 

experience, and thus the jury could not know how the military operates. 

See State v. Burns, 237 Ariz. 1, 26, ¶ 110 (2015). Hawthorne is mistaken; one 

juror had served in the armed forces. And in any event, the exclusion of 

members of the military from the jury panel would not have violated

Hawthorne’s right to an impartial jury, nor the potential jurors’ Equal 

Protection rights. See U.S. Const. amends. VI, XIV; see also J.E.B. v. Alabama 

ex rel. T.B., 511 U.S. 127, 143 (1994) (“Parties may also exercise their 

peremptory challenges to remove from the venire any group or class of 

individuals normally subject to ‘rational basis’ review.”); Gov’t of the Canal 

Zone v. Scott, 502 F.2d 566, 568–69 (5th Cir. 1974) (holding that excluding

military personnel from jury duty did not violate defendant’s Sixth 

Amendment right to an impartial jury).

 

4 The evidence also supports the element that after stealing the vehicle 

he independently controlled it by keeping possession of it, even if for only 

a day. State v. Para, 120 Ariz. 26, 29–30 (App. 1978) (person who stole horses 

could not be guilty of receiving stolen property but could be found guilty 

of possessing or concealing stolen property if he committed further 

independent acts of concealment or possession).
STATE v. HAWTHORNE

Decision of the Court

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III. Fundamental Error Review.

¶19 We have read and considered counsel’s brief and have 

reviewed the record for reversible error. See Leon, 104 Ariz. at 300. Other 

than the classification error addressed above, we find none. Hawthorne

was present and represented by counsel at all stages of the proceedings 

against him. The record reflects that the superior court afforded 

Hawthorne all his constitutional and statutory rights, and that the 

proceedings were conducted in accordance with the Arizona Rules of 

Criminal Procedure. The court conducted appropriate pretrial hearings, 

and the evidence presented at trial and summarized above was sufficient 

to support the jury’s verdicts. Hawthorne’s remaining sentence falls within 

the range prescribed by law.

CONCLUSION

¶20 We affirm Hawthorne’s convictions and his sentence for theft 

of means of transportation. We reclassify Hawthorne’s theft conviction as 

a class 4 felony and remand for resentencing.

¶21 Regarding the affirmed convictions and sentence, defense 

counsel’s obligations pertaining to Hawthorne’s representation in this 

appeal will end after informing Hawthorne of the outcome of this appeal 

and his future options, unless counsel’s review reveals an issue appropriate 

for submission to the Arizona Supreme Court by petition for review. See 

State v. Shattuck, 140 Ariz. 582, 584–85 (1984). On the court’s own motion,

Hawthorne shall have 30 days from the date of this decision to proceed, if

he desires, with a pro se motion for reconsideration or petition for review.