State v. Kalauli

• Decision Date: 20 March 2018
• Docket Number: No. 1 CA-CV 16-0013,1 CA-CV 16-0013
• Citation: 414 P.3d 690
• Parties: STATE of Arizona, Petitioner/Appellant, v. Hon. Mitchell KALAULI, Respondent Judge/Appellee, Deliana Mildred Kroll, Real Party in Interest/Appellee.
• Court: Arizona Court of Appeals

414 P.3d 690

STATE of Arizona, Petitioner/Appellant,

v. Hon. Mitchell KALAULI, Respondent Judge/Appellee,Deliana Mildred Kroll, Real Party in Interest/Appellee.

No. 1 CA-CV 16-0013

Court of Appeals of Arizona, Division 1.

FILED March 20, 2018

Lake Havasu City Attorney's Office, Lake Havasu City, By Charles F. Yager, Counsel for Petitioner/Appellant

Whitney & Whitney PLLC, Kingman, By Jacob W. Baldridge, Counsel for Real Party in Interest/Appellee

Peoria City Attorney's Office, Peoria, By Michael L. Dynes, Counsel for Amicus Curiae City of Peoria

Judge Michael J. Brown delivered the opinion of the Court, in which Presiding Judge Diane M. Johnsen and Judge Jon W. Thompson joined.

BROWN, Judge:

¶ 1 We address here whether a defendant charged with misdemeanor theft of services is entitled to a jury trial under the Arizona Constitution. Under our criminal code, theft is a unified offense and a defendant's eligibility for a jury trial must therefore be analyzed within that context. Because at least one of the varieties of theft has a common-law antecedent, we hold that a defendant charged with misdemeanor theft has the right to have his or her guilt determined by a jury.

BACKGROUND

¶ 2 The State charged Deliana Kroll with theft, a class one misdemeanor, alleging she failed to pay the fare for a shuttle ride she took in Lake Havasu City. She was also charged with disorderly conduct for cursing and other offensive conduct directed toward the driver. The State filed a motion requesting a bench trial, asserting in part that Arizona's "misdemeanor theft statute has never had a common law antecedent and shares no substantially similar elements to common law larceny." Kroll disagreed, pointing to case law recognizing larceny as the antecedent of shoplifting, and suggesting the jury eligibility question must be determined by recognizing theft as a single offense that may be committed in a number of ways. The Lake Havasu City Municipal Court denied the State's motion, concluding that "[h]istorically [,] theft charges have been [j]ury [t]rial eligible."

¶ 3 The State filed a petition for special action in superior court challenging the municipal court's ruling. The superior court accepted jurisdiction but denied relief, reasoning in part that although the State had raised "credible arguments regarding why the specific theft in this case does not fit the common law definition of larceny ... the bottom line ... is that the State of Arizona has always allowed for jury trials for theft.... Misdemeanor theft requires a jury trial." The State then filed a notice of appeal.

JURISDICTION

¶ 4 Although neither party questions this court's jurisdiction relating to the State's challenge of the superior court's ruling, we have an independent duty to determine our jurisdiction to consider an appeal. Sorensen v. Farmers Ins. Co. of Ariz. , 191 Ariz. 464, 465, 957 P.2d 1007, 1008 (App. 1997). The State asserts that appellate jurisdiction exists pursuant to Arizona Rule of Procedure for Special Actions 8(a). This procedural rule alone, however, does not provide a statutory basis for jurisdiction, and it is unclear whether we have appellate jurisdiction over a superior court order denying special action relief. See State v. Bayardi , 230 Ariz. 195, 197 n.4, ¶ 7, 281 P.3d 1063, 1065 (App. 2012).

¶ 5 Without deciding whether we have appellate jurisdiction, we may nonetheless consider the State's challenge if we elect to exercise special action jurisdiction. See Ariz. R.P. Spec. Act. 8(a). The State appears to have no "equally plain, speedy, or adequate remedy by appeal," and the issue raised is one of first impression with statewide importance. See Sanchez v. Gama , 233 Ariz. 125, 127, ¶ 4, 310 P.3d 1, 3 (App. 2013) (citations omitted). Thus, we exercise our discretion to accept special action jurisdiction over this matter.

DISCUSSION

¶ 6 Article 2, Section 23, of the Arizona Constitution provides that "[t]he right of trial by jury shall remain inviolate."¹ In Derendal v. Griffith , 209 Ariz. 416, 419, ¶ 9, 104 P.3d 147, 150 (2005), our supreme court explained that this provision preserves the right to jury trial as it existed at the time Arizona adopted its constitution. The court concluded that the right to a jury trial is guaranteed "for any defendant charged with an offense for which a jury trial was granted prior to statehood." Id. The court also noted the longstanding principle that "when the right to jury trial for an offense existed prior to statehood, it cannot be denied for modern statutory offenses of the same ‘character or grade.’ " Id . at ¶ 10 (quoting Bowden v. Nugent , 26 Ariz. 485, 488, 226 P. 549 (1924) ). Thus, to determine whether Section 23 assures a right to a jury trial for a particular offense, we consider first whether the modern crime has a common-law antecedent for which a defendant was afforded a jury trial. Id ."To reach this determination, we evaluate whether the charged offense contains elements ‘comparable’ or ‘substantially similar’ to those found in a jury-eligible common law offense." Sulavka v. State , 223 Ariz. 208, 210, ¶ 9, 221 P.3d 1022, 1024 (App. 2009) (quoting Derendal , 209 Ariz. at 419, 425, ¶¶ 10, 39, 104 P.3d at 150, 156, and citing Crowell v. Jejna , 215 Ariz. 534, 536–37, ¶ 7, 161 P.3d 577, 579–80 (App. 2007) ). Whether Kroll is entitled to a jury trial is a question of law we review de novo. Bosworth v. Anagnost , 234 Ariz. 453, 454–55, ¶ 3, 323 P.3d 736, 737–38 (App. 2014).

¶ 7 The roots of theft are larceny and its related offenses. Before statehood, larceny was defined under Arizona's territorial statutes, in part, as "the felonious stealing, taking, carrying, leading, or driving away the personal property of another," Rev. Stat. Ariz. Territory, Penal Code § 441 (1901), and the same definition was adopted in our first criminal code, Rev. Stat. Ariz., Penal Code § 481 (1913).² Our supreme court stated that the 1913 statutory language was consistent with the common law, describing the essential components of larceny as "the taking of the thing which is the subject of the crime from the possession of the owner into the possession of the thief; and ... an asportation thereof." Pass v. State , 34 Ariz. 9, 10, 267 P. 206 (1928).

¶ 8 Following California's lead, in 1939 our legislature substituted theft for larceny, such that theft was now defined in five subparts, including (1) the felonious taking of property, (2) fraudulently appropriating entrusted property, and (3) defrauding a person of money, labor, or property by fraudulent representation. See Ariz. Code § 43–5501(1)–(5) (1939) ("Any law which refers to or mentions larceny, embezzlement, or stealing, shall be interpreted as if the word ‘theft’ was substituted therefor."). Arizona's current theft statute, titled "Theft; classification; definitions," provides as follows:

A. A person commits theft if, without lawful authority, the person knowingly:

1. Controls property of another with the intent to deprive the other person of such property; or

2. Converts for an unauthorized term or use services or property of another entrusted to the defendant or placed in the defendant's possession for a limited, authorized term or use; or

3. Obtains services or property of another by means of any material misrepresentation with intent to deprive the other person of such property or services; or

4. Comes into control of lost, mislaid or misdelivered property of another under circumstances providing means of inquiry as to the true owner and appropriates such property to the person's own or another's use without reasonable efforts to notify the true owner; or

5. Controls property of another knowing or having reason to know that the property was stolen; or

6. Obtains services known to the defendant to be available only for compensation without paying or an agreement to pay the compensation or diverts another's services to the person's own or another's benefit without authority to do so....

Ariz. Rev. Stat. ("A.R.S.") § 13–1802(A)(1)–(6).³

¶ 9 The State does not dispute larceny was jury-eligible under the common law. Instead, the State argues common-law larceny is not an antecedent to theft of services because the two offenses lack substantially similar elements. Specifically, it contends services cannot be taken and carried away, and "asportation" is a necessary element of larceny. Kroll counters that because theft is a unified offense, she has the right to a jury trial because larceny and theft are "of the same character."

¶ 10 Arizona law is well established that "theft as defined in A.R.S. § 13–1802 is a single unified offense," State v. Cotten , 228 Ariz. 105, 107, ¶ 5, 263 P.3d 654, 656 (App. 2011), which means that the statute identifies a "single crime and provide[s] more than one means of committing the crime," State v. West , 238 Ariz. 482, 489, ¶ 19, 362 P.3d 1049, 1056 (App. 2015) (quoting In re Det. of Halgren , 156 Wash.2d 795, 132 P.3d 714, 720 (2006) ). As recognized by our supreme court, "in adopting A.R.S. § 13–1802, the legislature has created a single crime of ‘theft,’ combining or merging the common law crimes of larceny, fraud, embezzlement, obtaining money by false pretenses, and other similar offenses." State v. Tramble , 144 Ariz. 48, 52, 695 P.2d 737, 741 (1985).⁴ The court explained that "[t]he obvious purpose in enacting this ‘omnibus' theft statute was to eliminate technical distinctions between various types of stealing and to deal with all forms in a single statute, thus simplifying prosecution for the unlawful ‘acquisition’ of property belonging to others." Id. (citing State v. Jones , 499 S.W.2d 236, 240 (Mo. Ct. App. 1973) ).⁵

¶ 11 Among the implications of theft being a unitary crime, at least two are significant here. First, 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. See State v. Winter , 146 Ariz. 461, 464–65, 706 P.2d 1228, 1231–32 (App. 1985) ("...