Proceedings delayed to determine what constitutes “theft”
Defendant asked higher court to intervene, and for case transfer out-of-county
BISBEE – One man’s junk may be another man’s treasure, but removing a discarded tire from a Cochise County transfer station may land Jeff J. Harris in jail for six months. Harris was arrested for theft – a class one misdemeanor – for taking a waste tire from the county dump in Bisbee. He has also been ordered to stay away from the site or face arrest for trespassing.
According to a report by deputy John Grady of the Cochise County Sheriff’s Office, Harris entered the transfer station property September 21, 2016 to drop off scrap computer parts. An employee claims she saw Harris load a used tire into his car, despite prior warnings to Harris to not remove from the site.
Harris was confronted by the employee, who showed and read to Harris a 2014 memo that notes “removal or scavenging” of items by the public or staff “constitutes theft.” At one point Harris and the employee got into a “tug of war” with the tire, which resulted in the employee suffering an abrasion on her wrist. The employee called 911 after Harris drove away, allegedly with the tire still in his car.
As part of his investigation, deputy Grady spoke with Bisbee police officer Carlos Moreno. According toreports by Morenoand Grady, Moreno went to Harris’ home to investigate another tire theft. While there, Moreno spoke with Harris about the dump incident and looked at three tires in the back of Harris’ vehicle. None matched the tire Bisbee PD was looking for, but Moreno noted in his report that Harris showed him “the tire that he had taken from the transfer station.”
Defendant sought Superior Court special review of Bisbee Justice Court decision
Harris was arrested a short time later by Grady, who cited and released the 64 year old at his home. But before of the County Attorney’s Office could prosecute the case, Bisbee justice of the peace Adam Ambrose was asked to rule on a question of law — whether someone can be charged with theft for removing a previously discarded tire from a county dump.
Acting as his own attorney,Harris argued by written court filing that if a tire were removed under such circumstances it is not theftbecause there was no showing of an intention to “permanently deprive Cochise County of a worthless tire” or that “the tire legally belonged to Cochise County in the first place.”
On February 6 judge Ambrose ruled that the county could pursue the theft charge. Harris then filed a special action complaint with the Cochise County Superior Court in hopes of having the higher court overturn Ambrose’s decision. Judge Ambrose stayed (put on hold) the proceedings in the theft case pending a ruling on the special action complaint.
Harris noted in his filings that people are often charged a fee to drop off trash and tires. The county also pays to have the waste tires removed from the transfer stations, so any possession of the tire is temporary. Therefore, Harris argued, a discarded tire has no value to the county and the county cannot claim to the “deprived” of the tire.
He also challenged the 2014 memo distributed to county employees about removal of items from the county’s disposal sites. Harris noted that the memo cites no state law or county regulation, and indicates the public is allowed to remove some items from the dump. (A similar memo issued a week after Harris’ arrest also fails to reference a statute or regulation.)
Judge Ambrose did not file a response to Harris’ special action complaint. Lauri Owen of the county attorney’s office filed a response on behalf of the county board of supervisors. Owen put forth two interconnected arguments as to why the discarded tire belonged to Cochise County and why its removal was a theft.
Owen first argued that it is reasonable for Cochise County to set rules when the public comes onto land the county owns or controls. Those rules include who can access the property, the hours of operation, and what actions can and cannot occur on the property. Another such rule, Owen noted, is that items discarded at the dump cannot be removed by staff or the public unless specifically authorized.
Secondly, Owen argued that the law recognizes three types of personal property: that which is yours, that which is not yours, and that which is abandoned without transfer of rights. According to Owen, when an item like an old tire is brought to a county dump, the owner is transferring control of the item to the county. Therefore, waste tires are not abandoned property.
In a March 23 ruling, judge Karl Elledge declined to accept jurisdiction of Harris’ special action filing, noting that “special action relief is only appropriate if other remedies are not available.” Elledge found that Harris “has an adequate remedy by appeal” to superior court if he is convicted in judge Ambrose’s court.
Elledge also dismissed Harris’ complaint and sent the case back to judge Ambrose. However, the special action complaint may not be dead. Under state law, either party may request a change of venue to a neighboring county if one of the parties is a county. On March 24 Harris filed a motion for a change of venue to Pima County Superior Court, which judge Elledge had not ruled on as of March 31.
The theft case is currently set for a pretrial conference April 25 at the Bisbee Justice Court. Attorney Robert Zohlmann has been appointed to represent Harris.
Initially prosecuted by deputy county attorney Jason Lindstrom, the case is now assigned to Kristina Guerrero-Sisneroz after Lindstrom and Harris, who have been acquainted for more than a decade, engaged in personal attacks via e-mail.
Harris intends to challenge whether the case can proceed without the tire, which according to deputy Grady’s report was returned to the transfer station after he took photographs of it.
Contact reporter Terri Jo Neff at 520-508-3660 or email@example.com