State v. Lake ( 2023 )

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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.
NANCY A. LAKE, Appellant.
No. 1 CA-CR 22-0056
FILED 2-28-2023
Appeal from the Superior Court in Maricopa County
No. CR2020-136172-001
The Honorable Dewain D. Fox, Judge
AFFIRMED
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Kevin M. Morrow
Counsel for Appellee
Office of the Legal Advocate, Phoenix
By Kyle Kinkead
Counsel for Appellant
STATE v. LAKE
Decision of the Court
MEMORANDUM DECISION
Presiding Judge Maria Elena Cruz delivered the decision of the Court, in
which Judge Daniel J. Kiley and Judge Cynthia J. Bailey joined.
C R U Z, Judge:
¶1 Nancy A. Lake appeals her convictions and sentences for theft
and fraudulent schemes and artifices. We affirm.
FACTUAL AND PROCEDURAL HISTORY
¶2 We review the facts in the light most favorable to sustaining
the convictions and resolve all reasonable inferences against Lake. See State
v. Fontes, 195 Ariz. 229, 230, ¶ 2 (App. 1998). The trial evidence
demonstrated the following.
¶3 While investigating possible instances of fraud, a special
agent with the Office of the Inspector General for the Social Security
Administration (“SSA”) discovered Lake improperly used two social
security numbers to obtain Medicare and other disability/supplemental
income benefits. Lake was assigned the first number, -7663, in 1968 under
her birth name, Kendig. When she successfully applied for social security
number -0007 in 1988, Lake expressly affirmed she has not previously been
issued any other social security number.
¶4 Lake subsequently obtained social security benefits under
both numbers. Records for Lake’s two active bank accounts indicated the
United States Department of the Treasury (“Treasury Department”)
overpaid her approximately $70,000 based both on Lake’s employment
income, which she improperly failed to report to the SSA, and her
inappropriate use of the two social security numbers. When the
investigator subsequently interviewed Lake, she told him, “I knew you
guys would find out one day, . . . there was a paper trail.”
¶5 Alleging the SSA as the victim, the State charged Lake with
one count each of theft and fraudulent schemes and artifices, both class two
felonies.1 The jury returned guilty verdicts. The superior court suspended
1 Count 3, forgery, was dismissed with prejudice at trial.
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STATE v. LAKE
Decision of the Court
imposition of sentence and placed Lake on four years’ supervised
probation. Lake timely appealed, and we have jurisdiction pursuant to
Arizona Constitution Article 6, Section 9, and Arizona Revised Statutes
(“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and 13-4033(A)(1).
DISCUSSION
I. Sufficiency of the Evidence
¶6 According to Lake, the evidence established the monetary
benefits she obtained were “the property of” the Treasury Department, not
the SSA as charged in the information. Lake thus asserts insufficient
evidence supports her theft conviction, and she “was found guilty of a
completely different crime than that which [she] was charged.”
¶7 Lake’s argument fails as a matter of law. Assuming, without
deciding, the record supports Lake’s characterization of the evidence, her
argument presumes a victim’s title to property is an essential element to the
crime of theft. It is not. As relevant here, a “person commits theft if,
without lawful authority, the person knowingly . . . [c]ontrols property of
another.” A.R.S. § 13-1802(A)(1) (emphasis added). Thus, to obtain a
conviction under § 13-1802(A)(1), the State is not required to prove a
particular victim owned the stolen property; the State must only show the
accused knowingly controlled property that was not hers.2 See State v. Noe,
93 Ariz. 373, 375 (1963) (“[I]t is not a defense to larceny that title to property
is in one other than the person from whom it is taken.”); see also State v.
Kalauli, 243 Ariz. 521, 524, ¶¶ 7-8 (App. 2018) (describing how
contemporary theft statute is rooted in pre-statehood larceny and similar
common law offenses).
¶8 The distinction as to whether the Treasury Department or the
SSA “owned” the funds that Lake ultimately controlled is immaterial for
purposes of evaluating the evidence supporting her theft conviction. And
Lake does not argue the evidence shows she was lawfully entitled to the
overpaid benefits. Sufficient evidence supports Lake’s conviction.
2 A theft conviction also requires the State to prove the defendant
intended “to deprive the other person of such property.” A.R.S. § 13-
1802(A)(1). Lake does not argue the State failed to do so here.
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STATE v. LAKE
Decision of the Court
II. Prosecutorial “Misconduct”3
¶9 Lake argues the prosecutor erred during rebuttal closing
argument by stating, “The presumption of innocence is at the beginning of
the case when you have not heard the evidence.” Because Lake did not
object to the statement at trial, we review for fundamental error, which
requires Lake to prove either error and resulting prejudice, or that the error
“was so egregious that [s]he could not possibly have received a fair trial.”
State v. Escalante, 245 Ariz. 135, 140, 142, ¶¶ 12, 21 (2018).
¶10 Considered in isolation, the challenged statement appears to
erroneously imply the presumption of innocence abates when trial begins
and the State introduces evidence. See Bush v. State, 19 Ariz. 195, 203 (1917)
(“The presumption of innocence remains throughout the case and until it is
finally submitted to the jury and by the return of their verdict the defendant
is found guilty.”); but see State v. Conley, 2 CA-CR 2021-0111, 2023 WL
329233 at *6, ¶¶ 29-30 (App. Jan. 20, 2023) (finding prosecutor did not err
by stating during closing arguments that, although the defendant “started
out with the presumption of innocence[, w]e are no longer there”).
¶11 Lake fails to establish, however, that the error—if any—
prejudiced her or was so egregious that her trial was unfair. The trial court
repeatedly instructed the jury before deliberations that Lake was presumed
“innocent until [the State has] proven guilt[] beyond a reasonable doubt,”
which required the jurors to be “firmly convinced of the Defendant’s guilt.”
The court also admonished the jury not to consider counsels’ arguments as
evidence. Because we must presume the jury followed the court’s
instructions, they rectified whatever error occurred. See Conley, 2 CA-CR
2021-0111, at *6, ¶ 31; see also State v. Morris, 215 Ariz. 324, 336-37, ¶ 55 (2007)
(citing cases that hold trial court’s instructions cured improper closing
argument).
3 As our supreme court has explained, the term “prosecutorial
misconduct” broadly encompasses any conduct that violates a defendant’s
constitutional rights and “sweeps in prosecutorial conduct ranging from
inadvertent error or innocent mistake to intentional misconduct.” State v.
Murray, 250 Ariz. 543, 548, ¶ 12 (2021) (quoting In re Martinez, 248 Ariz. 458,
469, ¶ 45 (2020)). Consistent with the court’s directive in Martinez, we refer
to prosecutorial “error” because Lake has not expressly alleged intentional
misconduct or an ethical violation on the prosecutor’s part. See In re
Martinez, 248 Ariz. at 470, ¶ 47.
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STATE v. LAKE
Decision of the Court
CONCLUSION
¶12 We affirm.
AMY M. WOOD • Clerk of the Court
FILED: JT
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