State v. Woods

Decision Date17 January 1991
Docket NumberCA-CR
Citation815 P.2d 912,168 Ariz. 543
PartiesSTATE of Arizona, Appellee, v. Gregory WOODS, Appellant. 189-886.
CourtArizona Court of Appeals
OPINION

JACOBSON, Presiding Judge.

Appellant Gregory Woods (defendant) was convicted of sale of a narcotic drug with two prior felonies and was sentenced to a mitigated term of 14 years of imprisonment. On appeal, defendant argues that the trial court erred in failing to give a requested jury instruction on solicitation, contending that the crime of solicitation is a lesser-included offense of the crime of sale of a narcotic drug, if a defendant is solely an accomplice. We disagree and affirm.

FACTS

On the afternoon of February 14, 1989, two undercover Phoenix police officers drove to the 902 Bar in Phoenix, Arizona. Upon entering the parking lot, the officers saw two men near the trash dumpster behind the bar. These men, one of whom was later identified as defendant, asked the officers, "What's up?" One of the officers then asked for a $20 rock of cocaine. The other man refused, and the officers started to leave. Defendant asked the officers again what they needed, to which the officers replied that they wanted a $20 rock of cocaine. Defendant looked at the other man and nodded his head. The other man reached inside the trash dumpster, retrieved a small white rock of a substance later determined to be a usable amount of cocaine, and transferred this cocaine to the officer in return for a $20 bill.

Defendant was charged with the crime of sale of a narcotic drug. The state tried the case on the theory that defendant was an accomplice to the sale. The trial court gave an instruction as to accomplice liability, but refused to give defendant's requested instruction regarding solicitation.

DISCUSSION

A lesser-included offense is one "composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one." State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983). Accord State v. Bay, 150 Ariz. 112, 117, 722 P.2d 280, 285 (1986). An offense may be considered lesser-included if (1) the lesser-included offense is by its very nature always a constituent part of the major offense charged, or (2) the terms of the charging document describe the lesser offense even though it might not form a constituent part of the major offense charged. State v. Gooch, 139 Ariz. 365, 366, 678 P.2d 946, 947 (1984), citing In re Maricopa County Juvenile Action No. J-75755, 111 Ariz. 103, 105, 523 P.2d 1304, 1306 (1974).

In this case, defendant was charged with the sale of a narcotic drug. The crime of solicitation is not "by its very nature always a constituent part" of the crime of sale of a narcotic drug because the mental and physical elements of solicitation are not necessarily elements of the underlying offense. State v. Tellez, 165 Ariz. 381, 383, 799 P.2d 1, 3 (App.1989). Moreover, the indictment contains no reference to defendant's acting as an accomplice, and, therefore, does not describe a solicitation offense.

However, defendant argues that the crime of solicitation must always be a lesser-included offense where criminal liability is established through accomplice liability. 1 We disagree. In Arizona, being an accomplice is not a separately chargeable offense; it is merely a theory that the state may utilize to establish the commission of a substantive criminal offense. A.R.S. § 13-303. Consequently, the offense of solicitation cannot be a lesser-included offense of the "crime" of being an accomplice. Cf. State v. Dugan, 125 Ariz. 194, 195, 608 P.2d 771, 772 (1980) (instruction on lesser-included offense required...

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18 cases
  • The State Of Ariz. v. Mason
    • United States
    • Court of Appeals of Arizona
    • 30 Agosto 2010
    ...it is merely a theory that the state may utilize to establish the commission of a substantive criminal offense.” State v. Woods, 168 Ariz. 543, 544, 815 P.2d 912, 913 (App.1991); see also State v. Garcia, 176 Ariz. 231, 234, 860 P.2d 498, 501 (App.1993). A defendant's liability under an acc......
  • State v. Veloz
    • United States
    • Court of Appeals of Arizona
    • 29 Enero 2015
    ...crime charged without having committed the lesser one.’ ” Chabolla–Hinojosa, 192 Ariz. 360, ¶ 11, 965 P.2d at 97, quoting State v. Woods, 168 Ariz. 543, 544, 815 P.2d 912, 913 (App.1991). Here, organized retail theft is the greater offense. Compare A.R.S. § 13–1802(G) (theft of property val......
  • State v. Welch
    • United States
    • Court of Appeals of Arizona
    • 26 Octubre 2000
    ...889, 891 (App.1997) (citations omitted); see State v. Foster, 191 Ariz. 355, 357, 955 P.2d 993, 995 (App.1998); State v. Woods, 168 Ariz. 543, 544, 815 P.2d 912, 913 (App.1991). And it may be that the charging document describes the lesser offense although it is not necessarily "a constitue......
  • State v. Veloz
    • United States
    • Court of Appeals of Arizona
    • 29 Enero 2015
    ...crime charged without having committed the lesser one.’ ” Chabolla–Hinojosa, 192 Ariz. 360, ¶ 11, 965 P.2d at 97, quoting State v. Woods, 168 Ariz. 543, 544, 815 P.2d 912, 913 (App.1991). Here, organized retail theft is the greater offense. Compare A.R.S. § 13–1802(G) (theft of property val......
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