State v. Carter

• Decision Date: 13 August 2020
• Docket Number: No. CR-18-0508-PR,CR-18-0508-PR
• Citation: State v. Carter, 249 Ariz. 312, 469 P.3d 449 (Ariz. 2020)
• Parties: STATE of Arizona, Appellee, v. Bobby Ray CARTER Jr., Appellant.
• Court: Arizona Supreme Court

249 Ariz. 312

469 P.3d 449

STATE of Arizona, Appellee,

v.Bobby Ray CARTER Jr., Appellant.

No. CR-18-0508-PR

Supreme Court of Arizona.

Filed August 13, 2020

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

CHIEF JUSTICE BRUTINELauthored 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:

¶1Bobby 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.²We hold theft is a lesser-included offense of both vehicle theft and robbery, but vehicle theft is not a lesser-included offense of robbery.

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

¶3The 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, 429 P.3d 1176, 1186(App.2018).The court similarly concluded that Carter's convictions for theft and robbery involving the SUV constituted multiple punishments.Id. at 393¶ 35, 429 P.3d at 1187.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, 429 P.3d at 1183.

¶4The 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, 429 P.3d at 1189–90.

¶5The 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, 334 P.3d 1286(App.2014).SeeCarter , 245 Ariz. at 389 ¶ 19, 429 P.3d at 1183.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, 334 P.3d at 1288–90.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, 334 P.3d at 1288, 1290.

¶6We 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, 372 P.3d 945, 993(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, 104 S.Ct. 2536, 81 L.Ed.2d 425(1984)(quotingBrown v. Ohio , 432 U.S. 161, 165, 97 S.Ct. 2221, 53 L.Ed.2d 187(1977) );see alsoState v. Eagle , 196 Ariz. 188, 190 ¶ 5, 994 P.2d 395, 397(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, 373 P.3d 543, 546(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, 104 S.Ct. 2536.

¶8We begin with the presumption that the legislature does not intend to punish defendants twice for the same offense.Eagle , 196 Ariz. at 190 ¶ 6, 994 P.2d at 397(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, 100 S.Ct. 1432, 63 L.Ed.2d 715(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, 101 S.Ct. 1137, 67 L.Ed.2d 275(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, 52 S.Ct. 180, 76 L.Ed. 306(1932).Under United States v. Dixon , 509 U.S. 688, 709, 113 S.Ct. 2849, 125 L.Ed.2d 556(1993), Blockburger ’s same-elements test "is the only permissible interpretation of the double jeopardy clause."State v. Ortega , 220 Ariz. 320, 325 ¶ 13, 206 P.3d 769, 774(App.2008)(citation omitted);seeJurden , 239 Ariz. at 529 ¶ 10, 373 P.3d at 546(statingBlockburger ’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 actsalleged support[s] such a claim."Ortega , 220 Ariz. at 325 ¶ 13, 206 P.3d at 774(quotingDixon , 509 U.S. at 709 n.12, 113 S.Ct. 2849(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, 126 P.3d 148(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. at 3 ¶ 14, 126 P.3d at 150(internal citations omitted)(quotingState v. Dugan , 125 Ariz. 194, 195, 608 P.2d 771, 772(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.SeeLemke v. Rayes , 213 Ariz. 232, 238 ¶ 17, 141 P.3d 407, 413(App.2006).

¶11The 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.SeeSchmuck v. United States , 489 U.S. 705, 709, 716, 109 S.Ct. 1443, 103 L.Ed.2d 734(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 alsoState v. Gipson , 229 Ariz. 484, 486 ¶ 14 n.2, 277 P.3d 189, 191 n.2(2012)("An offense is necessarily included ‘when it is lesser included’ ...."(citation omitted));State v. Celaya , 135 Ariz. 248, 251, 660 P.2d 849, 852(1983).The court of appeals correctly applied Blockburger ’s same-elements test.

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...