In State v. Cope, No. 1 CA-CR 14-0596, (12/30/16), the Court of Appeals held that the offense of Shoplifting under 13A.R.S. § 1805.A.1, is a lesser included offense of Organized Retail Theft, 13 A.R.S. § 1819.A.1 and therefore the defendant could not be convicted of and punished for both offenses. The court went on to say that Organized Retail Theft, 13 A.R.S. § 1819.A.1, and Organized Retail Theft, 13 A.R.S. § 1819.A.2, are two different offenses and therefore a person can be convicted for each separately.
The defendant was charged with, and convicted after a jury trial of, Shoplifting in violation of 13 A.R.S. § 1805.A.1; Organized Retail Theft, in violation of 13 A.R.S. § 1819.A.1, and Organized Retail Theft, in violation of 13 A.R.S. § 1819.A.2.
On appeal the defendant contended that 13 A.R.S. § 1805.A.1, Shoplifting, is a lesser included offense of Organized Retail Theft, 13 A.R.S. § 1819.A.1. An offense is a lesser included offense if the person committing the greater offense must have also necessarily committed the lesser offense. If an offense is a lesser included offense a person may not be convicted of and sentenced for both offenses. Looking at the elements of the offenses the court of appeals said by committing the greater offense of 13 A.R.S. § 1819.A.1, Organized Retail Theft, the defendant necessarily committed the lesser offense of 13 A.R.S. § 1805.A.1, Shoplifting, which therefore was a lesser included offense. The court of appeals therefore vacated the conviction for 13 A.R.S. § 1805.A.1, Shoplifting.
The defendant also contended that 13 A.R.S. § 13-1819.A.1 and 13 A.R.S. § 13-1819.A.2, both Organized Retail Theft offenses, were in effect the same offense and therefore double punishment was barred by the Double Jeopardy Clause. The same item of stolen property was used to prove both of the offenses. The Court of Appeals said the test for Double Jeopardy is, “… where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.”
Applying that test the Court of Appeals said the two offenses had different elements and therefore a conviction for both was not barred by the Double Jeopardy Clause. The court said, “13 A.R.S. §1819.A.1, a person commits organized retail theft when she “[r]emoves merchandise from a retail establishment without paying the purchase price with the intent to resell or trade the merchandise for money or for other value.” However, under 13 A.R.S. §1819.A.2, a person commits organized retail theft by using “an artifice, instrument, container, device or other article to facilitate the removal of merchandise from a retail establishment without paying the purchase price.” Thus, in comparing the two offenses, organized retail theft pursuant to 13 A.R.S. § 1819.A.1 requires evidence of intent to resell or trade merchandise, whereas 13 A.R.S. § 1819.A.2 requires an intent to deprive. Also, in order to prove organized retail theft under 13 A.R.S. § 1819.A.2, the State must prove that an artifice/device was used to facilitate the removal of the merchandise; in contrast, under 13 A.R.S. §1819.A.1, the State is not required to show a device or artifice was used.
Since the two offenses involved proof of different elements the Double Jeopardy Clause does not prohibit the defendant from being convicted and sentenced for both even though both crimes involve the same item of property.
The case may be found at: http://www.azcourts.gov/Portals/0/OpinionFiles/Div1/2016/1%20CA-CR%2014-0596.pdf
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https://www.gordonthompsonattorney.net/search-of-suspected-shoplifter-held-illegal-absent-arrest/
Gordon Thompson
For more information about Arizona dui and criminal law issues please contact Gordon Thompson who has used his experience to write a blog on topics of interest. You can also chat with Gordon about your specific questions. Website: https://GordonThompsonAttorney.net
