State of Arizona v. Bobby Ray Carter Jr

IN THE
SUPREME COURT OF THE STATE OF ARIZONA
STATE OF ARIZONA,
Appellee,
v.
BOBBY RAY CARTER JR.,
Appellant.
No. CR-18-0508-PR
Filed August 13, 2020
Appeal from the Superior Court in Cochise County
The Honorable James L. Conlogue, Judge
The Honorable Wallace R. Hoggatt, Judge
Nos. S0200CR201500022
S0200CR201500023
S0200CR201500157
(Consolidated)
AFFIRMED IN PART AND VACATED IN PART
Opinion of the Court of Appeals, Division Two
245 Ariz. 382 (App. 2018)
AFFIRMED
COUNSEL:
Mark Brnovich, Arizona Attorney General, O.H. Skinner, Solicitor General,
Michael T. O’Toole, Chief Counsel, Criminal Appeals Section, Diane Leigh
Hunt (argued), Assistant Attorney General, Tucson, Attorneys for the State,
Randal B. McDonald (argued), Perkins Coie LLP, Phoenix, Attorneys for
Bobby Ray Carter Jr.
Brian Thredgold, Mikel Steinfeld, Phoenix, Attorneys for Amicus Curiae
Arizona Attorneys for Criminal Justice
STATE V. CARTER
Opinion of the Court
CHIEF JUSTICE BRUTINEL authored the opinion of the Court, in which
VICE CHIEF JUSTICE TIMMER and JUSTICES BOLICK, GOULD, LOPEZ,
BEENE AND MONTGOMERY joined.
CHIEF JUSTICE BRUTINEL, opinion of the Court:
¶1 Bobby Ray Carter was convicted of two counts of theft, two
counts of vehicle theft, and one count of robbery, for stealing a sport utility
vehicle (“SUV”) and a tractor. Here, we consider whether Carter’s
convictions and subsequent sentences constitute multiple punishments for
the same offense, 1 violating the Double Jeopardy Clause of the Fifth
Amendment to the United States Constitution. 2 We hold theft is a lesser-
included offense of both vehicle theft and robbery, but vehicle theft is not a
lesser-included offense of robbery.
1
Carter received concurrent sentences for the multiple convictions at
issue here, but multiple convictions for the same offense constitute multiple
punishments even if the sentences are concurrent. See State v. Brown, 217
Ariz. 617, 621 ¶ 13 (App. 2008). In Ball v. United States, the Supreme Court
clarified that when the legislature did not intend a single offense to be
punishable under two separate provisions, “[t]he separate conviction, apart
from the concurrent sentence, has potential adverse collateral consequences
that may not be ignored.” 470 U.S. 856, 865 (1985) (“For example, the
presence of two convictions on the record may delay the defendant’s
eligibility for parole or result in an increased sentence under a recidivist
statute for a future offense.”). The Court concluded that a “second
conviction, even if it results in no greater sentence, is an impermissible
punishment.” Id.2 “No person shall . . . be subject for the same offence to be twice put
in jeopardy of life or limb . . . .” U.S. Const. amend. V. “No person
shall . . . be twice put in jeopardy for the same offense.” Ariz. Const. art. 2,
§ 10. The analysis under both the federal and state constitutions is the same
because the language is virtually identical and “the two clauses have been
held to grant the same protection to criminal defendants.” State v. Eagle,
196 Ariz. 188, 190 ¶ 5 (2000).
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STATE V. CARTER
Opinion of the Court
I. BACKGROUND
¶2 In January of 2015, Carter went on a crime spree, during
which he carjacked an SUV and a tractor. Carter was convicted of theft of
property with a value of $4,000 or more but less than $25,000 (A.R.S. § 13-
1802(A)(1), (G)), vehicle theft (A.R.S. § 13-1814(A)(1)), and robbery (A.R.S.
§ 13-1902(A)) for stealing the SUV. For the tractor, Carter was convicted of
theft of property with a value of $25,000 or more (§ 13-1802(A)(1), (G)), and
vehicle theft (§ 13-1814(A)(1)). Because of his historical prior felony
convictions, the trial court sentenced Carter to a combination of prison
terms totaling 30.75 years for those offenses. 3
¶3 The court of appeals reversed in part, holding Carter’s
convictions for theft and vehicle theft for both the SUV and the tractor
constituted multiple punishments for the same offense in violation of the
Double Jeopardy Clause. State v. Carter, 245 Ariz. 382, 392 ¶¶ 33–34 (App.
2018). The court similarly concluded that Carter’s convictions for theft and
robbery involving the SUV constituted multiple punishments. Id. at 393
¶ 35. But the court found that Carter’s convictions for vehicle theft and
robbery involving the SUV were separate offenses, and as such, could be
punished separately. Id. at 389 ¶ 19.
¶4 The court vacated the convictions carrying the lesser
penalties—Carter’s theft conviction involving the SUV, and vehicle theft
conviction involving the tractor. Id. at 395–96 ¶¶ 46–47.
¶5 The court of appeals’ analysis of the relationship between
theft, vehicle theft, and robbery was inconsistent with its opinion in State v.
Garcia, 235 Ariz. 627 (App. 2014). See Carter, 245 Ariz. at 389 ¶ 19. In Garcia,
the court concluded that because vehicle theft is a lesser-included offense
of theft, and theft is a lesser-included offense of armed robbery, that vehicle
theft must be a lesser-included offense of armed robbery. 235 Ariz. at 629–
31 ¶¶ 2–3, 10–11. Therefore, Garcia held that convicting the defendant for
both vehicle theft and armed robbery involving the same incident violated
the Double Jeopardy Clause. Id. at 629 ¶ 5, 631 ¶ 11.
3
Carter was also convicted of one count of aggravated assault, four
counts of burglary, and one count of criminal damage, which brought his
sentence to 60.75 years total.
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STATE V. CARTER
Opinion of the Court
¶6 We granted review to determine whether vehicle theft is a
lesser included offense of theft and robbery, an issue of statewide
importance, and to resolve the split of authority in the court of appeals. We
have jurisdiction under article 6, section 5(3) of the Arizona Constitution.
II. DISCUSSION
¶7 Whether a defendant’s convictions violate the Double
Jeopardy Clause is a question of law, which we review de novo. State v.
Goudeau, 239 Ariz. 421, 469 ¶ 215 (2016). The Double Jeopardy Clauses in
both the United States and Arizona Constitutions protect a defendant
“against a second prosecution for the same offense after acquittal” and
“against a second prosecution for the same offense after conviction.” Ohio
v. Johnson, 467 U.S. 493, 498 (1984) (quoting Brown v. Ohio, 432 U.S. 161, 165
(1977)); see also State v. Eagle, 196 Ariz. 188, 190 ¶ 5 (2000). In addition to
protecting against multiple trials for the same offense, “[t]he Double
Jeopardy Clause protects against multiple punishments for the same
offense.” State v. Jurden, 239 Ariz. 526, 529 ¶ 10 (2016). This protection is
“designed to ensure that the sentencing discretion of courts is confined to
the limits established by the legislature.” Johnson, 467 U.S. at 499.
¶8 We begin with the presumption that the legislature does not
intend to punish defendants twice for the same offense. Eagle, 196 Ariz. at190 ¶ 6 (stating there is a presumption “that the legislature did not intend
to authorize cumulative or consecutive sentences when two statutory
provisions proscribe the same conduct”). This presumption applies unless
there is a “clear indication of contrary legislative intent.” Whalen v. United
States, 445 U.S. 684, 692 (1980). However, unlike the constitutional
protection against multiple trials for the same offense, because the
legislature has the power to determine the elements of criminal offenses
and their punishments, the dispositive question is whether the legislature
intended to impose multiple punishments for the same offense. Albernaz v.
United States, 450 U.S. 333, 344 (1981).
¶9 To determine whether two distinct offenses charged under
different statutes constitute the same offense, we apply Blockburger’s same-
elements test, i.e. “whether each provision requires proof of a fact which
the other does not.” Blockburger v. United States, 284 U.S. 299, 304 (1932).
Under United States v. Dixon, 509 U.S. 688, 709 (1993), Blockburger’s same-
elements test “is the only permissible interpretation of the double jeopardy
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STATE V. CARTER
Opinion of the Court
clause.” State v. Ortega, 220 Ariz. 320, 325 ¶ 13 (App. 2008) (citation
omitted); see Jurden, 239 Ariz. at 529 ¶ 10 (stating Blockburger’s same-
elements test is used to determine whether double jeopardy is triggered
when the same conduct violates two different statutes). If there is no double
jeopardy violation after conducting Blockburger’s same-elements test, courts
should not consider “whether the nature of the acts alleged support[s] such
a claim.” Ortega, 220 Ariz. at 325 ¶ 13 (quoting Dixon, 509 U.S. at 709 n.12
(finding that the charging documents test is impermissible)).
¶10 Initially, we clarify double jeopardy terminology. Although
many cases have used the terms “lesser-included” and “necessarily
included” interchangeably, we reiterate our explanation in State v. Wall, 212
Ariz. 1 (2006), defining these terms. “An offense is ‘lesser included’ when
the ‘greater offense cannot be committed without necessarily committing
the lesser offense.’ But an offense is ‘necessarily included,’ and so requires
that a jury instruction be given, only when it is lesser included and the
evidence is sufficient to support giving the instruction.” Wall, 212 Ariz. at3 ¶ 14 (internal citations omitted) (quoting State v. Dugan, 125 Ariz. 194, 195
(1980)). A necessarily included offense for jury instruction purposes must
be a lesser-included offense under Blockburger’s same-elements test;
however, satisfying Blockburger’s same-elements test does not always mean
that the offense is a necessarily included offense under Arizona Rule of
Criminal Procedure 21.4. See Lemke v. Rayes, 213 Ariz. 232, 238 ¶ 17 (App.
2006).
¶11 The State argues that rather than applying Blockburger’s same-
elements test, the court of appeals applied the “lesser-included offense” test
found in Rule 21.4. However, Rule 21.4’s necessarily included offense test
incorporates Blockburger’s same-elements test as its first requirement. See
Schmuck v. United States, 489 U.S. 705, 709, 716 (1989) (adopting the same-
elements test for jury instruction purposes); Jane A. Minerly, Comment, The
Interplay of Double Jeopardy, the Doctrine of Lesser Included Offenses, and the
Substantive Crimes of Forcible Rape and Statutory Rape, 82 Temp. L. Rev. 1103,
1110 (2009) (“The statutory elements approach used by a majority of
jurisdictions and the federal system is identical to the test for determining
which offenses are the ‘same offense’ for double jeopardy purposes.”); see
also State v. Gipson, 229 Ariz. 484, 486 ¶ 14 n.2 (2012) (“An offense is
necessarily included ‘when it is lesser included’ . . . .” (citation omitted));
State v. Celaya, 135 Ariz. 248, 251 (1983). The court of appeals correctly
applied Blockburger’s same-elements test.
5
STATE V. CARTER
Opinion of the Court
A. Theft Is a Lesser-Included Offense of Vehicle Theft
¶12 To determine whether Carter’s convictions for both theft and
vehicle theft violate double jeopardy, we start by comparing their elements.
To satisfy the statutory elements of theft, a person must, without lawful
authority, “knowingly . . . [c]ontrol[] property of another with the intent to
deprive the other person of such property.” § 13-1802(A)(1). Vehicle theft
requires that a person, without lawful authority, “knowingly . . . [c]ontrol[]
another person’s means of transportation with the intent to permanently
deprive the person of the means of transportation.” § 13-1814(A)(1).
¶13 Vehicle theft cannot be committed without also committing
each of the elements required to prove theft. Under Blockberger’s same-
elements test, they are the same offense for double jeopardy purposes.
Vehicle theft requires two elements in addition to those necessary for
theft—it requires the property be a means of transportation and that the
defendant intend to permanently deprive the victim of that property.
Because it has the greater number of elements, vehicle theft is the greater
offense and theft is the lesser-included offense. Although Garcia also
determined vehicle theft and theft are the same offense, Garcia found
vehicle theft is the lesser-included offense. Garcia, 235 Ariz. at 630–31 ¶¶ 8,
10–11 (finding the “intent to permanently deprive” element of vehicle theft
is a subset of the “intent to deprive” element of theft, and a “means of
transportation” is “property”).
¶14 We disagree with Garcia’s reasoning because § 13-1814, the
vehicle theft statute, is limited only to theft of a “means of transportation”
and has the specific requirement of an “intent to permanently deprive,”
neither of which appears in the theft statute, § 13-1802. The term “deprive,”
as used in § 13-1802(A)(1) and defined by § 13-1801(A)(4), includes both
permanent and temporary “withhold[ing]” of property.4 Thus, although
vehicle theft under § 13-1814(A)(1) always requires a permanent
4 “‘Deprive’ means to withhold the property interest of another either
permanently or for so long a time period that a substantial portion of its
economic value or usefulness or enjoyment is lost, to withhold with the
intent to restore it only on payment of any reward or other compensation
or to transfer or dispose of it so that it is unlikely to be recovered.” A.R.S.
§ 13-1801(A)(4).
6
STATE V. CARTER
Opinion of the Court
withholding of property, theft under § 13-1802(A)(1) does not. A person
can deprive another of property without intending to deprive that person
of such property permanently. We agree with the court of appeals here,
that theft is a lesser-included offense of vehicle theft and we overrule Garcia
to that extent. The Double Jeopardy Clause prohibits Carter’s convictions
for both theft and vehicle theft.
B. Theft Is a Lesser-Included Offense of Robbery
¶15 It is well settled in Arizona that theft is a lesser-included
offense of robbery. Carter, 245 Ariz. at 393 ¶ 35; Garcia, 235 Ariz. at 630 ¶ 7;
see Wall, 212 Ariz. at 4 ¶ 15; State v. McNair, 141 Ariz. 475, 482 (1984); Celaya,
135 Ariz. at 252; Dugan, 125 Ariz. at 195; State v. Jackson, 121 Ariz. 277, 279
(1979); State v. Yarbrough, 131 Ariz. 70, 72–73 (App. 1981).
¶16 Robbery requires all the elements of theft: a person must,
without lawful authority, “knowingly . . . [c]ontrol[] property of another
with the intent to deprive the other person of such property.” § 13-
1802(A)(1). Robbery additionally requires that a person “in the course of
taking any property of another from his person or immediate presence and
against his will, . . . threatens or uses force . . . with intent either to coerce
surrender of property or to prevent resistance to such person taking or
retaining property.” § 13-1902(A). Theft must be done “knowingly,” and
although the robbery statute does not have an express intent element, under
A.R.S. § 13-202(B), an appropriate mental state will be judicially read into
statutes that “necessarily involve[]” a culpable mental state. Specific intent
is an element of robbery. State v. Broadfoot, 115 Ariz. 537, 538 (1977).
Robbery also requires that the property be taken from a “person or [the
person’s] immediate presence,” and that the taking must involve the use or
threat of force to coerce the surrender of the property “or to prevent
resistance to such person taking or retaining property.” § 13-1902(A). Thus,
theft is a lesser-included offense of robbery.
C. Vehicle Theft Is Not a Lesser-Included Offense of Robbery
¶17 Next, we turn to the conflict in the court of appeals’ cases
regarding whether vehicle theft is a lesser-included offense of robbery.
Garcia held that because theft is a lesser-included offense of robbery and
vehicle theft is “a form of theft,” vehicle theft, like theft, must be a lesser-
included offense of robbery. See 235 Ariz. at 630 ¶ 8. Conversely, here, the
7
STATE V. CARTER
Opinion of the Court
court of appeals rejected Garcia’s premise that vehicle theft is a form of the
general offense of theft and held that vehicle theft is not a lesser-included
offense of robbery. Carter, 245 Ariz. at 393 ¶¶ 37–38. We likewise reject that
premise.
¶18 Again, vehicle theft requires a person, to “knowingly . . .
[c]ontrol[] another person’s means of transportation with the intent to
permanently deprive the person of the means of transportation,” without
lawful authority. § 13-1814(A)(1). Robbery requires that a person “in the
course of taking any property of another from his person or immediate
presence and against his will, . . . threatens or uses force . . . with intent
either to coerce surrender of property or to prevent resistance to such
person taking or retaining property.” § 13-1902(A).
¶19 Vehicle theft and robbery each require proof of an element
that the other does not. Robbery does not require an intent to permanently
deprive the victim of the property nor must the property be a means of
transportation. And vehicle theft does not require the use of force or the
threat of force nor that the taking be from a person or a person’s immediate
presence. Vehicle theft is not a lesser-included offense of robbery and we
overrule Garcia to that extent.
D. Legislative Intent
¶20 Next, we consider whether a “clear indication of contrary
legislative intent” rebuts the presumption afforded by Blockburger’s same-
elements test. Whalen, 445 U.S. at 692; see Blockburger, 284 U.S. at 304 (“The
applicable rule is that, 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 a fact which the other does not.”). We find here,
as did the court of appeals, that the legislative history of theft, vehicle theft,
and robbery described below is consistent with the presumption that the
legislature did not intend to impose multiple punishments for the same
offenses. Carter, 245 Ariz. at 393 ¶ 39.
¶21 The State argues that because Arizona’s theft statute is a
unitary offense, Blockburger’s same-elements test requires courts to examine
and include the elements contained in every subsection of the unitary theft
statute, not just the subsection charged. But such a requirement would
8
STATE V. CARTER
Opinion of the Court
mean that theft could never be a lesser-included offense. Some of the
elements of the various means of theft are mutually exclusive. For instance,
theft under § 13-1802(A) at times pertains to “property,” e.g., § 13-
1802(A)(1)–(5), sometimes to “services,” e.g., § 13-1802(A)(6), and other
times to “ferrous metal or nonferrous metal,” e.g., § 13-1802(A)(7)–(9). The
different subsections also contain different mens rea requirements,
including intentional, § 13-1802(A)(1) (“with the intent to deprive . . .”), and
knowing, § 13-1802(A)(5) (“knowing or having reason to know . . .”). Under
the State’s theory, it would be impossible for any offense to be “greater”
than theft because there is no offense whose elements could include all the
elements required for every single subsection of the unitary theft statute.5
Additionally, this would conflict with this Court’s holdings that theft is a
lesser-included offense of robbery. Supra ¶ 15.
¶22 For double jeopardy purposes, courts should look only to the
elements of a particular means of theft. Although Dixon states a court may
not look to underlying conduct when evaluating whether two statutes
constitute multiple punishments, 509 U.S. at 708–09, 711, “when a particular
offense can be committed in multiple ways, . . . . Blockburger does not
preclude consideration of the offense as it has been charged in determining
the elements of an offense and whether two offenses are the same.” Ortega,
220 Ariz. at 325 ¶ 14; see State v. Aguiar-Corona, 508 N.W.2d 698, 702 (Iowa
1993) (“[W]hen the statute provides alternative ways of committing the
crime, the alternative submitted to the jury controls.”). Because theft is a
unitary offense, “when charging a defendant with theft, the State is not
required to specify a subsection of A.R.S. § 13-1802 within the charging
document” and “the jury need not unanimously agree on the manner in
which the defendant committed the offense.” State v. Kalauli, 243 Ariz. 521,
525 ¶ 11 (App. 2018). However, courts must be able to conduct a double
jeopardy analysis before sentencing. The state must articulate which
provision(s) of the unitary offense the state has proved so a court can
determine whether the offenses are the same. See Ortega, 220 Ariz. at 325
¶ 14. The state can choose to allege the specific provision in the charging
document, during trial, or prior to sentencing, as long as it does so prior to
a final disposition.
5 Under § 13-1802(A) and (B), there are ten different ways to commit
theft.
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STATE V. CARTER
Opinion of the Court
¶23 The legislative history of vehicle theft and theft supports the
conclusion that theft is a lesser-included offense of vehicle theft. In 1998,
the Arizona Legislature enacted a separate vehicle theft offense. House Bill
2185 separated vehicle theft “from the tiered penalty system associated with
ordinary theft.” Ariz. State House Summary for H.B. 2185, 43rd Leg., 2d
Reg. Sess. (Mar. 10, 1998). The bill’s purpose was to make vehicle theft a
class 3 felony “under most conditions . . . but a class 5 felony to only intend
to temporarily take another person’s vehicle [pursuant to A.R.S. § 13-
1803].” Ariz. State Senate Fact Sheet for H.B. 2185, 43rd Leg., 2d Reg. Sess.
(Revised) (Apr. 15, 1998).
¶24 Based on this legislative history, the court of appeals correctly
reasoned that our state legislature did not intend for a defendant to be
punished for both theft and vehicle theft for the same criminal transaction.
Rather, the legislature intended the defendant to be subject only to the
penalty for vehicle theft. The vehicle theft statute now has a standardized
penalty; it is always a class three felony, instead of a penalty dependent on
the value of the property stolen, as is true of the theft statute. Thus, the
vehicle theft statute does not clearly indicate the legislature intended to
punish both theft and vehicle theft for the same conduct. And with respect
to vehicle theft and robbery, which are not the same offense under
Blockburger’s same-elements test, there is no indication the legislature did
not intend to authorize cumulative punishment for these offenses. Thus,
vehicle theft and robbery may be punished separately because silence as to
legislative intent is insufficient to rebut the presumption afforded by
Blockburger’s same-elements test. Albernaz, 450 U.S. at 341–42.
E. An Offense with a Greater Penalty Can Be a Lesser-Included
Offense of One with a Lesser Penalty
¶25 The State argues that an offense with a greater penalty cannot
be a lesser-included offense of one with a lesser penalty. However, in State
v. Caudillo, 124 Ariz. 410, 413 (1979), we held “whether the penalty is less or
the same, an offense is [a lesser] included [offense] if all the elements thereof
are contained within the elements necessary to prove the offense charged.”
Id. at 412–13 (rejecting the argument that false imprisonment by violence
could not be a lesser-included offense to the greater offense of kidnapping
because both offenses carried the same penalty). What matters is not the
penalty but the common elements of the offense. See United States v. Peel,
595 F.3d 763, 767–68 (7th Cir. 2010) (finding obstruction of justice, which
10
STATE V. CARTER
Opinion of the Court
carried a higher statutory maximum sentence, was a lesser-included offense
of bankruptcy fraud because it had fewer elements—and that was the “only
sense of ‘lesser’ that matters under the Blockburger test”).
¶26 The State also asserts it is a “fundamental rule of
statutory/rule construction that no word or phrase be deemed redundant
or otherwise inconsequential, as would be the case if the terms ‘lesser’ and
‘included’ essentially mean the same thing.” The surplusage canon
provides, “[i]f possible, every word and every provision is to be given effect
. . . None should be ignored. None should needlessly be given an
interpretation that causes it to duplicate another provision or to have no
consequence.” Antonin Scalia & Bryan A. Garner, Reading Law: The
Interpretation of Legal Texts 174 (2012). However, the use of the term “lesser-
included offense” for double jeopardy purposes does not come from a
statute or rule regarding double jeopardy. Rather “lesser-included offense”
is a label courts use to help convey the outcome of Blockburger’s same-
elements test. See Brown, 432 U.S. at 168 (“The greater offense is therefore
by definition the ‘same’ for purposes of double jeopardy as any lesser
offense included in it.”). Under Blockburger’s same-elements test, it is the
elements, not the penalty, that matter. Therefore, a lesser-included offense
may have a more severe penalty. 6
¶27 Carter’s convictions for theft and vehicle theft involving both
the SUV and tractor, as separately charged, violate the Double Jeopardy
Clause. Similarly, Carter’s conviction for theft, in count five, and for
robbery, in count seven, involving the SUV, constitute impermissible
double punishment for the same offense. The court of appeals’ remedy of
vacating the less severe convictions and sentences for the offenses that
implicate the Double Jeopardy Clause was appropriate because “usually
it’s the conviction carrying the lesser penalty that is vacated.” Peel, 595 F.3d
at 768. Therefore, pursuant to A.R.S. § 13-4036, we vacate Carter’s
convictions and sentences for count five, for the theft of the SUV, and count
6 In State v. Siddle, the court of appeals stated, “[w]ith the exception of
possession of drug paraphernalia, the drug offenses here are greater
offenses than the weapons offense by reason of felony classification.” 202
Ariz. 512, 516 ¶ 11 (App. 2002). This is incorrect. But we do not need to
overrule Siddle because, as the court of appeals stated, the comment in Siddle
regarding felony classification was dictum that was immediately followed
by an application of the same-elements test.
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STATE V. CARTER
Opinion of the Court
nine, for the vehicle theft of the tractor. The State proved the offense
bearing the more severe penalty, and it would be paradoxical to allow the
defendant to escape the full consequences thereof.
III. CONCLUSION
¶28 For these reasons, we affirm in part and vacate in part the
convictions and sentences of the trial court and affirm the opinion of the
court of appeals.
12