State v. Galan
| Decision Date | 18 November 1982 |
| Docket Number | CA-CR,No. 1,1 |
| Citation | 658 P.2d 243,134 Ariz. 590 |
| Parties | STATE of Arizona, Appellant, v. Michael Arthur GALAN, Appellee. 5825. |
| Court | Arizona Court of Appeals |
The state appeals from an order of the trial court dismissing an indictment charging the defendant, Michael Galan, with three counts of attempted trafficking in stolen property. The sole issue presented is whether attempted trafficking in stolen property is a cognizable offense under Arizona law. We hold that it is and we set aside the order of the trial court dismissing the indictment.
The evidence on which the indictment was based, taken from the transcript of proceedings before the grand jury, reveals that in January of 1981 an undercover police officer assigned to an anti-fencing task force contacted the defendant Galan at his place of business, Arizona Scrap Iron and Metal, and offered to sell the defendant 245 pounds of copper wire. The officer told Galan that he had a key to a Mountain Bell Telephone Company yard and that he could "rip" as much wire as he could get out. Galan told the officer that he would strip the wire so that it could not be identified and he purchased the wire for $50.
Approximately two months later the same officer contacted Galan and sold him 120 pounds of copper wire for $82, again telling him that he, the officer, had "ripped it off" from Mountain Bell. Galan indicated that he would be shipping the wire out the next day.
Two days later the officer again sold Galan 105 pounds of wire for $73, telling him that the wire was "not right". Galan said that he would not let the wire be seen and that he would get rid of it the next day.
None of the wire sold to the defendant had in fact been stolen. Rather, it had been donated to the task force by Mountain Bell Telephone Company for use in connection with the task force's enforcement program.
The defendant contends that under our statutory scheme an attempt requires proof that the accused engaged in conduct with the specific intent to commit a specific criminal offense. Since trafficking in stolen property requires only that one act recklessly, it follows, he says, that no offense was committed because one cannot intentionally act recklessly. We reject the defendant's position because we feel that its apparent logic is flawed and because it leads to a result contrary to the legislative intent behind the statutory scheme relating to property offenses. We begin with an examination of the purpose of the statutory scheme.
The current criminal code, which became effective in 1978, replaced the various statutory and common law concepts of "mens rea" with four specifically defined culpable mental states. Those four culpable mental states are (1) intentionally, (2) knowingly, (3) recklessly, and (4) with criminal negligence. A.R.S. § 13-105. They are employed throughout the code to the exclusion of all other terms dealing with the state of mind which must accompany a specific act or acts to constitute a crime. Arizona Criminal Code Commission, Arizona Revised Criminal Code, § 201 commentary at p. 39 (1975).
Another of the codifiers' clear purposes was to preclude the common law defense of impossibility, thus shifting the focus from judging conduct in light of the actual facts to a consideration of the defendant's "dangerousness". See Model Penal Code, § 5.01(1) at p. 31 (Tent. Draft No. 10, 1960) and R.J. Gerber, Criminal Law of Arizona, § 13-1001 at p. 132 (1978). This was accomplished by a redefinition of "attempt". In pertinent part A.R.S. § 13-1001 provides:
A. A person commits attempt if, acting with the kind of culpability otherwise required for the commission of an offense, such person:
(1) Intentionally engages in conduct which would constitute an offense if the attendant circumstances were as such person believes them to be; or
(2) Intentionally does or omits to do anything which, under the circumstances as such person believes them to be, is any step in a course of conduct planned to culminate in commission of an offense ....
Subsection A(1) thus imposes liability where the completed offense is rendered impossible for any reason and § A(2) imposes liability for any step in a course of criminal conduct. Judge Gerber writes that A.R.S. § 13-1001 was intended to replace both the general and the specific attempt provisions in the prior Title 13. R.J. Gerber, supra, at 132-33.
We next turn to a consideration of the trafficking statute, A.R.S. § 13-2307(A) which provides:
A person who recklessly traffics in the property of another that has been stolen is guilty of trafficking in stolen property in the second degree.
"Traffic" is defined in A.R.S. § 13-2301(B)(3) as follows:
'Traffic' means to sell, transfer, distribute, dispense or otherwise dispose of stolen property to another person, or to buy, receive, possess or obtain control of stolen property, with intent to sell, transfer, distribute, dispense or otherwise dispose of to another person. (Emphasis added.)
There are several reasons why we conclude that one can attempt to "recklessly" traffic in stolen property.
The defendant's argument that an attempt still requires a specific intent which is incompatible with a reckless state of mind does not reckon with all of the language of A.R.S. § 13-1001, the attempt statute. We quote that provision again with emphasis on the wording that the defendant's argument ignores: 1
A person commits attempt if, acting with the kind of culpability otherwise required for the commission of an offense such person,
(1) Intentionally engages in conduct which would constitute an offense if the attendant circumstances were as such person believes them to be.
A common sense reading of the provision leads to the conclusion that the words "intentionally engages in conduct" refers, in this case, to the actions that make up trafficking like buying property intending to resell it (A.R.S. § 13-2301(B)(3)) and that the words "acting with the kind of culpability otherwise required for the commission of an offense" requires only that the acts be accompanied by a reckless state of mind as to the circumstances attending the status of the property. A contrary conclusion would mean that the words "acting with the kind of culpability otherwise required for the commission of an offense" are superfluous. This would run contrary to the rule that each phrase and clause of a statute must be given meaning so that no part will be void, inert, redundant, or trivial. Terry v. Lincscott Hotel Corp., 126 Ariz. 548, 617 P.2d 56 (App.1980).
This conclusion is directly supported by the comments to the American Law Institute's Model Penal Code which, in discussing a proposed definition of attempt that was in every material respect like the language of A.R.S. § 13-1001(A)(1) said:
The Requirement of Purpose. As previously stated, the proposed definition of attempt follows the conventional pattern of limiting this inchoate crime to purposive conduct. In the language of the courts, there must be 'intent in fact' or 'specific intent' to commit the crime allegedly attempted. (Footnote omitted.) Nonetheless a problem of drafting is presented in endeavoring to explain the nature of the requisite purpose.
This section adopts the view that the actor must have for his purpose to engage in the criminal conduct or accomplish the criminal result which is an element of the substantive crime but that his purpose need not encompass all the surrounding circumstances included in the formal definition of the substantive offense. As to them, it is sufficient that he acts with the culpability that is required for commission of the crime. Suppose, for example, that it is a federal offense to kill or injure an FBI agent and that recklessness or even negligence with respect to the identity of the victim as an agent suffices for commission of the crime. There would be an attempt...
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State v. Moran
...be convicted of attempted trafficking if property "not stolen," but trafficking conviction "couldnot stand"); State v. Galan, 134 Ariz. 590, 593, 658 P.2d 243, 246 (App. 1982) (describing trafficking offense with which defendant charged as one "the legislature has simply chosen to define as......
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State v. DiGiulio
...See State v. Vitale, 23 Ariz.App. 37, 530 P.2d 394 (1975). At worst, he could be convicted of attempted trafficking. State v. Galan, 134 Ariz. 590, 658 P.2d 243 (App.1982). Recovery of property by authorized persons, such as the police, strips it of its stolen character, and precludes convi......
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State v. Sherman
...be convicted of attempted trafficking if property "not stolen," but trafficking conviction "could not stand"); State v. Galan, 134 Ariz. 590, 593, 658 P.2d 243, 246 (App. 1982) ("legislature has simply chosen to define" as attempted trafficking transfer of non-stolen property with "reckless......
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State v. Moore
...absurdum, as there can be no criminal offense that requires an attempt to accomplish an unintended result. See State v. Galan, 134 Ariz. 590, 593, 658 P.2d 243, 246 (App. 1982) ("'[T]here is no such criminal offense as an attempt to achieve an unintended result.'") (quoting People v. Harris......