State v. Leeman

• Decision Date: 14 June 1978
• Docket Number: No. 4191-PR,4191-PR
• Citation: 119 Ariz. 459,581 P.2d 693
• Parties: STATE of Arizona, Appellant, v. Rudolph Edward LEEMAN, Appellee.
• Court: Arizona Supreme Court

Page 693

581 P.2d 693

119 Ariz. 459

STATE of Arizona, Appellant, v. Rudolph Edward LEEMAN, Appellee.

No. 4191-PR.

Supreme Court of Arizona,In Banc.

June 14, 1978.

John A. LaSota, Jr., Atty. Gen., Phoenix, Stephen D. Neely, Pima County Atty., Zada A. Edgar, Deputy County Atty., Tucson, for appellant.

John M. Neis, Pima County Public Defender, David C. Anson, Donald H. Bayles, Jr., Asst. Public Defenders, Tucson, for appellee.

GORDON, Justice:

Rudolph Leeman was charged with theft by embezzlement of rented or leased property, a violation of A.R.S. § 13-682. Prior to his trial, Leeman moved to dismiss the charge, alleging the statute to be violative of the equal protection clause of United States and Arizona Constitutions. The trial court granted the motion and the state appealed the ruling. Although the Court of Appeals disagreed with Leeman's reasoning, it still found the statute to be unconstitutional. The Court of Appeals concluded the statute violated Art. 2, § 18 of the Arizona Constitution which provides: "There shall be no imprisonment for debt, except in cases of fraud". State v. Leeman, 118 Ariz. ---, 580 P.2d 1202 (App., 1977). A petition for review was timely filed pursuant to Rule 31.19, 17 A.R.S., Rules of Criminal Procedure, and we accepted jurisdiction.

A.R.S. § 13-682 states, in relevant part:

"A. A person is guilty of theft by embezzlement who:

"4. Has leased or rented personal property, and who fraudulently fails to return such personal property, to the lessor within ten days after the lessor has made written demand by certified or registered mail following the expiration of the lease or rental agreement for return of the property so leased or rented.

"B. It shall be prima facie evidence of intent to commit theft by embezzlement of leased or rented personal property when one who has leased or rented the personal property of another fails to return or make arrangements acceptable with the lessor to return the personal property to its owner within ten days after proper notice following the expiration of the lease or rental agreement, or presents identification to the lessor or renter thereof which is false, fictitious or not current with respect to name, address, place of employment or other appropriate items.

"C. Proper notice by the lessor on a charge of theft by embezzlement of leased or rental property shall consist of a written demand addressed and mailed by certified or registered mail to the lessee at the address given at the time of making the lease or rental agreement.

"D. The following factors taken as a whole shall constitute an affirmative defense to prosecution for theft by embezzlement of rented or leased personal property:

"1. That the lessee accurately stated his name and address at the time of rental.

"2. That the lessee's failure to return the item at the expiration date of the rental contract was lawful.

"3. That the lessee failed to receive the lessor's notice personally.

"4. That the lessee returned the personal property to the owner or lessor within seventy-two hours of the commencement of prosecution, together with any charges for the overdue period and the value of damages to the personal property, if any."

The Court of Appeals only found subsection D of the statute, which provides an affirmative defense, to be unconstitutional. The court reasoned that since an impecunious person might be able to satisfy the first three elements of the affirmative defense, but not the last, any resultant incarceration would be "tantamount to imprisonment for debt". We believe the Court of Appeals focused too narrowly on a single element of the defense in arriving at its conclusion.

Rather than being an exclusive defense, A.R.S. § 13-682(D) merely affords a defendant an additional defense which was previously precluded by A.R.S. §§ 13-685, 13-686. Thus, inability to satisfy a single element of this affirmative defense does not deprive a defendant of the right to dispute his guilt through traditional means. ¹

Also important is that payment of the charges and damages does not alone constitute an affirmative defense, because all four of the conditions must be satisfied before the defense is available. From the foregoing one can see that the statute is not a mere debt collection device in the guise of a penal statute such as the ordinance considered in State v. Bartos, 102 Ariz. 15, 423 P.2d 713 (1967). Rather, A.R.S. § 13-682 is solely concerned with fraud. This conclusion is strengthened by the fact that non-payment of rental charges was not selected by the Legislature as one of the acts constituting prima facie evidence of intent to commit theft by embezzlement of rental or leased property.

Regardless of the particular defense relied on by an accused, the state still has the burden of proving that the defendant committed an embezzlement. Only after the state satisfies this burden of proof may a person be convicted and, perhaps, subsequently imprisoned. Of course the nature of this particular crime is such that non-payment of charges to which the defendant obligated himself in exchange for receiving the property invariably becomes part of the res gestae of the crime. However, to focus on the non-payment in order to raise a constitutional argument ignores the fact that the person is being punished on account of fraud, rather than the mere existence of a debt. See State v. Haremza, 213 Kan. 201, 515 P.2d 1217 (1973); State v. Croy, 32 Wis.2d 118, 145 N.W.2d 118 (1966); Nunn v. Smith, 270 N.C. 374, 154 S.E.2d 497 (1967); Rhodes v. State, 441 S.W.2d 197 (Tex.Cr.App.1969). State v. Madewell, 63 N.J. 506, 309 A.2d 201 (1973), on which the Court of Appeals relied, only addressed the issue of whether imprisonment for the failure to timely return a rented vehicle alone violates the imprisonment for debt prohibition. In Madewell the New Jersey Supreme Court left unsettled the related issue of fraud with which we are here concerned. Since the Arizona Constitution excepts cases of fraud from its prohibition of imprisonment for debt, and A.R.S. § 13-682 prohibits fraud not mere debt we hold that this statute passes constitutional muster as to this point.

Appellee has also raised an equal protection argument. Basically he claims that A.R.S. § 13-682 permits a rich man to purchase a defense, while an indigent would face a conviction for the crime he committed. Again, as in the foregoing issue, this argument only focuses on one element of the affirmative defense while ignoring the other required elements of the defense and their unavoidable interrelationship with the crime of embezzlement of rented or leased property.

In analyzing this issue we begin with the proposition that the Legislature possesses broad discretion in defining criminal offenses, so long as the classification of an act is not totally arbitrary or capricious. State v. Hickey, 114 Ariz. 394, 561 P.2d 315 (1977). Of course, the equal protection clause of the Fourteenth Amendment places restrictions on a state's power.

"Although no precise formula has been developed, the Court has held that the Fourteenth Amendment permits the States a wide scope of discretion in enacting laws which affect some groups of citizens differently than others. The constitutional safeguard is offended only...