IN THE

SUPREME COURT OF THE STATE OF ARIZONA

STATE OF ARIZONA,

Appellee,

v.

BOBBY RAY CARTER JR.,

Appellant.

No. CR-18-0508-PR

Filed August 13, 2020

Appeal from the Superior Court in Cochise County 

The Honorable James L. Conlogue, Judge

The Honorable Wallace R. Hoggatt, Judge

Nos. S0200CR201500022

 S0200CR201500023

 S0200CR201500157

(Consolidated)

AFFIRMED IN PART AND VACATED IN PART

Opinion of the Court of Appeals, Division Two

245 Ariz. 382 (App. 2018)

AFFIRMED

COUNSEL:

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 
STATE V. CARTER

Opinion of the Court

2

CHIEF JUSTICE BRUTINEL authored 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:

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

lesser-included offense of robbery.

 1 Carter received concurrent sentences for the multiple convictions at 

issue here, but multiple convictions for the same offense constitute multiple 

punishments even if the sentences are concurrent. See State v. Brown, 217 

Ariz. 617, 621 ¶ 13 (App. 2008). In Ball v. United States, the Supreme Court 

clarified that when the legislature did not intend a single offense to be 

punishable under two separate provisions, “[t]he separate conviction, apart 

from the concurrent sentence, has potential adverse collateral consequences 

that may not be ignored.” 470 U.S. 856, 865 (1985) (“For example, the 

presence of two convictions on the record may delay the defendant’s 

eligibility for parole or result in an increased sentence under a recidivist 

statute for a future offense.”). The Court concluded that a “second 

conviction, even if it results in no greater sentence, is an impermissible 

punishment.” Id.

2 “No person shall . . . be subject for the same offence to be twice put 

in jeopardy of life or limb . . . .” U.S. Const. amend. V. “No person 

shall . . . be twice put in jeopardy for the same offense.” Ariz. Const. art. 2, 

§ 10. The analysis under both the federal and state constitutions is the same

because the language is virtually identical and “the two clauses have been 

held to grant the same protection to criminal defendants.” State v. Eagle, 

196 Ariz. 188, 190 ¶ 5 (2000).
STATE V. CARTER

Opinion of the Court

3

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 

¶3 The 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 (App. 

2018). The court similarly concluded that Carter’s convictions for theft and 

robbery involving the SUV constituted multiple punishments. Id. at 393 

¶ 35. 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. 

¶4 The 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.

¶5 The 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 (App. 2014). See Carter, 245 Ariz. at 389 ¶ 19. 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. 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.

 3 Carter was also convicted of one count of aggravated assault, four 

counts of burglary, and one count of criminal damage, which brought his 

sentence to 60.75 years total.
STATE V. CARTER

Opinion of the Court

4

¶6 We 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 (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 (1984) (quoting Brown v. Ohio, 432 U.S. 161, 165 

(1977)); see also State v. Eagle, 196 Ariz. 188, 190 ¶ 5 (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 (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. 

¶8 We begin with the presumption that the legislature does not 

intend to punish defendants twice for the same offense. Eagle, 196 Ariz. at

190 ¶ 6 (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 (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 (1981).

¶9 To determine whether two distinct offenses charged under 

different statutes constitute the same offense, we apply Blockburger’s sameelements 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 (1932). 

Under United States v. Dixon, 509 U.S. 688, 709 (1993), Blockburger’s sameelements test “is the only permissible interpretation of the double jeopardy 
STATE V. CARTER

Opinion of the Court

5

clause.” State v. Ortega, 220 Ariz. 320, 325 ¶ 13 (App. 2008) (citation 

omitted); see Jurden, 239 Ariz. at 529 ¶ 10 (stating Blockburger’s sameelements 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 acts alleged support[s] such 

a claim.” Ortega, 220 Ariz. at 325 ¶ 13 (quoting Dixon, 509 U.S. at 709 n.12

(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 (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 (internal citations omitted) (quoting State v. Dugan, 125 Ariz. 194, 195

(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. See Lemke v. Rayes, 213 Ariz. 232, 238 ¶ 17 (App. 

2006). 

¶11 The State argues that rather than applying Blockburger’s sameelements 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. See

Schmuck v. United States, 489 U.S. 705, 709, 716 (1989) (adopting the sameelements 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

also State v. Gipson, 229 Ariz. 484, 486 ¶ 14 n.2 (2012) (“An offense is 

necessarily included ‘when it is lesser included’ . . . .” (citation omitted));

State v. Celaya, 135 Ariz. 248, 251 (1983). The court of appeals correctly 

applied Blockburger’s same-elements test. 
STATE V. CARTER

Opinion of the Court

6

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 Vehicle theft cannot be committed without also committing 

each of the elements required to prove theft. Under Blockberger’s sameelements test, they are the same offense for double jeopardy purposes. 

Vehicle theft requires two elements in addition to those necessary for

theft—it requires the property be a means of transportation and that the 

defendant intend to permanently deprive the victim of that property. 

Because it has the greater number of elements, vehicle theft is the greater 

offense and theft is the lesser-included offense. Although Garcia also 

determined vehicle theft and theft are the same offense, Garcia found

vehicle theft is the lesser-included offense. Garcia, 235 Ariz. at 630–31 ¶¶ 8, 

10–11 (finding the “intent to permanently deprive” element of vehicle theft

is a subset of the “intent to deprive” element of theft, and a “means of 

transportation” is “property”).

¶14 We disagree with Garcia’s reasoning because § 13-1814, the 

vehicle theft statute, is limited only to theft of a “means of transportation” 

and has the specific requirement of an “intent to permanently deprive,” 

neither of which appears in the theft statute, § 13-1802. The term “deprive,” 

as used in § 13-1802(A)(1) and defined by § 13-1801(A)(4), includes both 

permanent and temporary “withhold[ing]” of property.4 Thus, although 

vehicle theft under § 13-1814(A)(1) always requires a permanent 

 4 “‘Deprive’ means to withhold the property interest of another either 

permanently or for so long a time period that a substantial portion of its 

economic value or usefulness or enjoyment is lost, to withhold with the 

intent to restore it only on payment of any reward or other compensation 

or to transfer or dispose of it so that it is unlikely to be recovered.” A.R.S. 

§ 13-1801(A)(4).
STATE V. CARTER

Opinion of the Court

7

withholding of property, theft under § 13-1802(A)(1) does not. A person 

can deprive another of property without intending to deprive that person

of such property permanently. We agree with the court of appeals here, 

that theft is a lesser-included offense of vehicle theft and we overrule Garcia

to that extent. The Double Jeopardy Clause prohibits Carter’s convictions 

for both theft and vehicle theft.

B. Theft Is a Lesser-Included Offense of Robbery

¶15 It is well settled in Arizona that theft is a lesser-included

offense of robbery. Carter, 245 Ariz. at 393 ¶ 35; Garcia, 235 Ariz. at 630 ¶ 7; 

see Wall, 212 Ariz. at 4 ¶ 15; State v. McNair, 141 Ariz. 475, 482 (1984); Celaya, 

135 Ariz. at 252; Dugan, 125 Ariz. at 195; State v. Jackson, 121 Ariz. 277, 279 

(1979); State v. Yarbrough, 131 Ariz. 70, 72–73 (App. 1981). 

¶16 Robbery requires all the 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). Robbery additionally requires that a person “in the course of 

taking any property of another from his person or immediate presence and 

against his will, . . . threatens or uses force . . . with intent either to coerce 

surrender of property or to prevent resistance to such person taking or 

retaining property.” § 13-1902(A). Theft must be done “knowingly,” and 

although the robbery statute does not have an express intent element, under 

A.R.S. § 13-202(B), an appropriate mental state will be judicially read into 

statutes that “necessarily involve[]” a culpable mental state. Specific intent 

is an element of robbery. State v. Broadfoot, 115 Ariz. 537, 538 (1977). 

Robbery also requires that the property be taken from a “person or [the 

person’s] immediate presence,” and that the taking must involve the use or 

threat of force to coerce the surrender of the property “or to prevent 

resistance to such person taking or retaining property.” § 13-1902(A). Thus,

theft is a lesser-included offense of robbery.

C. Vehicle Theft Is Not a Lesser-Included Offense of Robbery 

¶17 Next, we turn to the conflict in the court of appeals’ cases 

regarding whether vehicle theft is a lesser-included offense of robbery. 

Garcia held that because theft is a lesser-included offense of robbery and 

vehicle theft is “a form of theft,” vehicle theft, like theft, must be a lesserincluded offense of robbery. See 235 Ariz. at 630 ¶ 8. Conversely, here, the 
STATE V. CARTER

Opinion of the Court

8

court of appeals rejected Garcia’s premise that vehicle theft is a form of the 

general offense of theft and held that vehicle theft is not a lesser-included 

offense of robbery. Carter, 245 Ariz. at 393 ¶¶ 37–38. We likewise reject that 

premise.

¶18 Again, vehicle theft requires a person, to “knowingly . . . 

[c]ontrol[] another person’s means of transportation with the intent to 

permanently deprive the person of the means of transportation,” without 

lawful authority. § 13-1814(A)(1). Robbery requires that a person “in the 

course of taking any property of another from his person or immediate 

presence and against his will, . . . threatens or uses force . . . with intent 

either to coerce surrender of property or to prevent resistance to such 

person taking or retaining property.” § 13-1902(A). 

¶19 Vehicle theft and robbery each require proof of an element 

that the other does not. Robbery does not require an intent to permanently 

deprive the victim of the property nor must the property be a means of 

transportation. And vehicle theft does not require the use of force or the 

threat of force nor that the taking be from a person or a person’s immediate 

presence. Vehicle theft is not a lesser-included offense of robbery and we 

overrule Garcia to that extent.

D. Legislative Intent

¶20 Next, we consider whether a “clear indication of contrary 

legislative intent” rebuts the presumption afforded by Blockburger’s sameelements test. Whalen, 445 U.S. at 692; see Blockburger, 284 U.S. at 304 (“The 

applicable rule is that, where the same act or transaction constitutes a 

violation of two distinct statutory provisions, the test to be applied to 

determine whether there are two offenses or only one, is whether each 

provision requires proof of a fact which the other does not.”). We find here, 

as did the court of appeals, that the legislative history of theft, vehicle theft, 

and robbery described below is consistent with the presumption that the 

legislature did not intend to impose multiple punishments for the same 

offenses. Carter, 245 Ariz. at 393 ¶ 39.

¶21 The State argues that because Arizona’s theft statute is a 

unitary offense, Blockburger’s same-elements test requires courts to examine 

and include the elements contained in every subsection of the unitary theft 

statute, not just the subsection charged. But such a requirement would 
STATE V. CARTER

Opinion of the Court

9

mean that theft could never be a lesser-included offense. Some of the 

elements of the various means of theft are mutually exclusive. For instance,

theft under § 13-1802(A) at times pertains to “property,” e.g., § 13-

1802(A)(1)–(5), sometimes to “services,” e.g., § 13-1802(A)(6), and other 

times to “ferrous metal or nonferrous metal,” e.g., § 13-1802(A)(7)–(9). The 

different subsections also contain different mens rea requirements, 

including intentional, § 13-1802(A)(1) (“with the intent to deprive . . .”), and

knowing, § 13-1802(A)(5) (“knowing or having reason to know . . .”). Under 

the State’s theory, it would be impossible for any offense to be “greater” 

than theft because there is no offense whose elements could include all the 

elements required for every single subsection of the unitary theft statute.5 

Additionally, this would conflict with this Court’s holdings that theft is a 

lesser-included offense of robbery. Supra ¶ 15.

¶22 For double jeopardy purposes, courts should look only to the 

elements of a particular means of theft. Although Dixon states a court may 

not look to underlying conduct when evaluating whether two statutes 

constitute multiple punishments, 509 U.S. at 708–09, 711, “when a particular 

offense can be committed in multiple ways, . . . . Blockburger does not 

preclude consideration of the offense as it has been charged in determining 

the elements of an offense and whether two offenses are the same.” Ortega, 

220 Ariz. at 325 ¶ 14; see State v. Aguiar-Corona, 508 N.W.2d 698, 702 (Iowa 

1993) (“[W]hen the statute provides alternative ways of committing the 

crime, the alternative submitted to the jury controls.”). Because theft is a 

unitary offense, “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” and “the jury need not unanimously agree on the manner in 

which the defendant committed the offense.” State v. Kalauli, 243 Ariz. 521, 

525 ¶ 11 (App. 2018). However, courts must be able to conduct a double 

jeopardy analysis before sentencing. The state must articulate which 

provision(s) of the unitary offense the state has proved so a court can 

determine whether the offenses are the same. See Ortega, 220 Ariz. at 325 

¶ 14. The state can choose to allege the specific provision in the charging 

document, during trial, or prior to sentencing, as long as it does so prior to 

a final disposition.

 5 Under § 13-1802(A) and (B), there are ten different ways to commit 

theft.
STATE V. CARTER

Opinion of the Court

10

¶23 The legislative history of vehicle theft and theft supports the 

conclusion that theft is a lesser-included offense of vehicle theft. In 1998, 

the Arizona Legislature enacted a separate vehicle theft offense. House Bill 

2185 separated vehicle theft “from the tiered penalty system associated with 

ordinary theft.” Ariz. State House Summary for H.B. 2185, 43rd Leg., 2d 

Reg. Sess. (Mar. 10, 1998). The bill’s purpose was to make vehicle theft a 

class 3 felony “under most conditions . . . but a class 5 felony to only intend 

to temporarily take another person’s vehicle [pursuant to A.R.S. § 13-

1803].” Ariz. State Senate Fact Sheet for H.B. 2185, 43rd Leg., 2d Reg. Sess. 

(Revised) (Apr. 15, 1998).

¶24 Based on this legislative history, the court of appeals correctly 

reasoned that our state legislature did not intend for a defendant to be 

punished for both theft and vehicle theft for the same criminal transaction. 

Rather, the legislature intended the defendant to be subject only to the

penalty for vehicle theft. The vehicle theft statute now has a standardized 

penalty; it is always a class three felony, instead of a penalty dependent on 

the value of the property stolen, as is true of the theft statute. Thus, the 

vehicle theft statute does not clearly indicate the legislature intended to 

punish both theft and vehicle theft for the same conduct. And with respect 

to vehicle theft and robbery, which are not the same offense under 

Blockburger’s same-elements test, there is no indication the legislature did 

not intend to authorize cumulative punishment for these offenses. Thus, 

vehicle theft and robbery may be punished separately because silence as to 

legislative intent is insufficient to rebut the presumption afforded by 

Blockburger’s same-elements test. Albernaz, 450 U.S. at 341–42.

E. An Offense with a Greater Penalty Can Be a Lesser-Included 

Offense of One with a Lesser Penalty

¶25 The State argues that an offense with a greater penalty cannot 

be a lesser-included offense of one with a lesser penalty. However, in State 

v. Caudillo, 124 Ariz. 410, 413 (1979), we held “whether the penalty is less or 

the same, an offense is [a lesser] included [offense] if all the elements thereof 

are contained within the elements necessary to prove the offense charged.” 

Id. at 412–13 (rejecting the argument that false imprisonment by violence 

could not be a lesser-included offense to the greater offense of kidnapping 

because both offenses carried the same penalty). What matters is not the 

penalty but the common elements of the offense. See United States v. Peel, 

595 F.3d 763, 767–68 (7th Cir. 2010) (finding obstruction of justice, which 
STATE V. CARTER

Opinion of the Court

11

carried a higher statutory maximum sentence, was a lesser-included offense 

of bankruptcy fraud because it had fewer elements—and that was the “only

sense of ‘lesser’ that matters under the Blockburger test”).

¶26 The State also asserts it is a “fundamental rule of 

statutory/rule construction that no word or phrase be deemed redundant 

or otherwise inconsequential, as would be the case if the terms ‘lesser’ and 

‘included’ essentially mean the same thing.” The surplusage canon 

provides, “[i]f possible, every word and every provision is to be given effect 

. . . None should be ignored. None should needlessly be given an 

interpretation that causes it to duplicate another provision or to have no 

consequence.” Antonin Scalia & Bryan A. Garner, Reading Law: The 

Interpretation of Legal Texts 174 (2012). However, the use of the term “lesserincluded offense” for double jeopardy purposes does not come from a 

statute or rule regarding double jeopardy. Rather “lesser-included offense” 

is a label courts use to help convey the outcome of Blockburger’s sameelements test. See Brown, 432 U.S. at 168 (“The greater offense is therefore 

by definition the ‘same’ for purposes of double jeopardy as any lesser 

offense included in it.”). Under Blockburger’s same-elements test, it is the 

elements, not the penalty, that matter. Therefore, a lesser-included offense 

may have a more severe penalty.6

¶27 Carter’s convictions for theft and vehicle theft involving both 

the SUV and tractor, as separately charged, violate the Double Jeopardy 

Clause. Similarly, Carter’s conviction for theft, in count five, and for 

robbery, in count seven, involving the SUV, constitute impermissible 

double punishment for the same offense. The court of appeals’ remedy of 

vacating the less severe convictions and sentences for the offenses that 

implicate the Double Jeopardy Clause was appropriate because “usually 

it’s the conviction carrying the lesser penalty that is vacated.” Peel, 595 F.3d 

at 768. Therefore, pursuant to A.R.S. § 13-4036, we vacate Carter’s 

convictions and sentences for count five, for the theft of the SUV, and count 

 6 In State v. Siddle, the court of appeals stated, “[w]ith the exception of 

possession of drug paraphernalia, the drug offenses here are greater 

offenses than the weapons offense by reason of felony classification.” 202 

Ariz. 512, 516 ¶ 11 (App. 2002). This is incorrect. But we do not need to 

overrule Siddle because, as the court of appeals stated, the comment in Siddle

regarding felony classification was dictum that was immediately followed 

by an application of the same-elements test.
STATE V. CARTER

Opinion of the Court

12

nine, for the vehicle theft of the tractor. The State proved the offense 

bearing the more severe penalty, and it would be paradoxical to allow the 

defendant to escape the full consequences thereof. 

III. CONCLUSION

¶28 For these reasons, we affirm in part and vacate in part the 

convictions and sentences of the trial court and affirm the opinion of the 

court of appeals.