IN THE

ARIZONA COURT OF APPEALS

DIVISION ONE

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

Appeal from the Superior Court in Mohave County

No. L8015CV201507173

The Honorable Lee F. Jantzen, Judge

JURISDICTION ACCEPTED; RELIEF DENIED

COUNSEL

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

FILED 3-20-2018
STATE v. HON KALAULI/KROLL

Opinion of the Court

2

OPINION

Judge Michael J. Brown delivered the opinion of the Court, in which 

Presiding Judge Diane M. Johnsen and Judge Jon W. Thompson joined.

B R O W N, 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. 
STATE v. HON KALAULI/KROLL

Opinion of the Court

3

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 (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 (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 (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 (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 (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 

 

1 Section 24 further provides that “[i]n criminal prosecutions, the 

accused shall have the right to . . . have a speedy public trial by an impartial 

jury of the county in which the offense is alleged to have been committed.” 

Ariz. Const. art. 2, § 24.
STATE v. HON KALAULI/KROLL

Opinion of the Court

4

Ariz. 208, 210, ¶ 9 (App. 2009) (quoting Derendal, 209 Ariz. at 419, 425, 

¶¶ 10, 39, and citing Crowell v. Jejna, 215 Ariz. 534, 536-37, ¶ 7 (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 (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 (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 

 

2 Similar to territorial statutes, the 1913 code criminalized other acts as 

larceny, including (1) appropriating lost property to one’s own use without 

making reasonable efforts to restore the property to its owner, (2) buying or 

receiving stolen property, (3) stealing or embezzling property in another 

state or country and bringing it to this state, and (4) connecting to service 

lines or pipes conveying gas, electricity, or water without payment. Rev. 

Stat. Ariz., Penal Code §§ 482, 493-497 (1913). 
STATE v. HON KALAULI/KROLL

Opinion of the Court

5

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 

(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 (App. 2015) (quoting In re Det. of Halgren, 132 P.3d 714, 

720 (Wash. 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 

 

3 Section 13-1802(A) includes three additional subsections addressing 

theft of ferrous and nonferrous metals. A.R.S. § 13-1802(A)(7)-(9).
STATE v. HON KALAULI/KROLL

Opinion of the Court

6

offenses.” State v. Tramble, 144 Ariz. 48, 52 (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 (App. 1985) 

(“[A] general citation to the theft statute in the indictment suffices to charge 

a violation of its subparts” because of the unitary nature of the crime of 

theft). Second, the jury need not unanimously agree on the manner in 

which the defendant committed the offense. See Cotten, 228 Ariz. at 107-08,

¶¶ 4, 6 (rejecting defendant’s argument that the trial court erred in failing 

to submit special verdict forms to distinguish between two subsections of 

theft); State v. Dixon, 127 Ariz. 554, 561 (App. 1980) (concluding that jury 

unanimity is not required for theft cases “as to the means by which the 

 

4 To clarify, embezzlement and false pretenses were not common-law 

crimes under English law. Instead, Parliament created the two crimes “to 

fill gaps in the law of larceny.” 3 Wayne R. LaFave, Substantive Criminal 

Law § 19.1 (3d ed. 2017). However, other offenses relevant here, such as 

larceny by trick, appear to have been crimes under the common law. See, 

e.g., State v. Medina, 355 P.3d 108, 116 n.9 (Or. 2015) (“Unlike larceny by 

trick, embezzlement is not a common-law crime.”); Commonwealth v. Gold, 

186 A. 208, 210 (Pa. Super. Ct. 1936) (noting that “larceny by trick is a 

common–law offense”). Regardless, this does not affect our analysis. Given 

the unitary nature of our theft statute, we decline to analyze jury eligibility 

based on the “thin and technical” dividing lines between larceny and 

related crimes. See Substantive Criminal Law, § 19.1(b); see also Sulavka, 223 

Ariz. at 209, ¶ 5 (noting that “jury eligibility under the Arizona Constitution 

turns on whether a statutory offense is sufficiently linked to a common law 

offense for which a jury trial was granted prior to statehood”). 

 

5 The Arizona Criminal Code Commission noted “[t]he essence of 

theft . . . is the obtaining of unlawful control over property of another . . . . 

For all practical purposes, the verbal distinctions among embezzlement, 

receiving stolen property, finding and keeping lost property, defrauding an 

innkeeper and similar theft offenses are abolished and replaced by a 

singular concept of depriving another of his or her property or services.” State 

v. Winter, 146 Ariz. 461, 464 (App. 1985) (emphasis added).
STATE v. HON KALAULI/KROLL

Opinion of the Court

7

crime is committed provided there is substantial evidence to support each 

of the means charged”).

¶12 Kroll’s charging document is not in the record before us, but 

it makes no difference whether she was accused of committing theft by 

violating A.R.S. § 13-1802(A)(6) (theft of services) or by violating another 

subsection of the statute. The essence of the charge is that she allegedly 

obtained transportation services without paying for them. Regardless of 

the actual theory the State decides to pursue at trial, if she is found guilty, 

the conviction will be for committing the unified crime of theft in violation 

of A.R.S. § 13-1802, or “stealing,” see Tramble, 144 Ariz. at 52, not theft of 

services. Whether a person unlawfully acquires tangible property, such as 

a bicycle, or intangible property, such as a shuttle ride, the character of the 

crime is the same—stealing property (tangible or intangible) that the person 

does not have a right to acquire, control, or convert. See A.R.S. 

§ 13-1801(A)(12), (14) (defining “property” as “any thing of value, tangible 

or intangible, including trade secrets,” and “services” including “labor, 

professional services, transportation, cable television, computer or 

communication services, gas or electricity services, accommodation in 

hotels, restaurants or leased premises or elsewhere, admission to 

exhibitions and use of vehicles or other movable property”) (emphasis 

added). Stated differently, it does not matter how the State intends to prove 

the unlawful acquisition of property at trial because each of the nine 

subsections defines a different way to commit one crime—theft. 

¶13 The State acknowledges that theft is a unitary offense but 

contends the legislature’s decision to combine the subsections of theft under 

one statute does not mean that just because some subsections of the statute

are jury-eligible, all of them are. In support, the State directs us to this 

court’s decisions in Bosworth and Sulavka, asserting that because we 

addressed individual subsections of the shoplifting statutes in those cases

to determine jury trial eligibility, we should do the same here with the theft 

statute. See Bosworth, 234 Ariz. at 457, ¶ 11; Sulavka, 223 Ariz. at 211, ¶ 13. 

But the State does not cite, nor has our research revealed, any authority 

suggesting the legislature combined common-law offenses into a single 

crime when it adopted the shoplifting statute, A.R.S. § 13-1805. As such, 

we are not persuaded by the State’s assertion that we must ignore the theft 

statute’s unitary nature when determining jury trial eligibility. 

¶14 Without question, not every element of the nine subsections, 

including theft of services under A.R.S. § 13-1802(A)(6), has a 

corresponding element in common-law larceny. Jury trial eligibility in this 

instance, however, does not turn on such a technical analysis. See Buccellato 
STATE v. HON KALAULI/KROLL

Opinion of the Court

8

v. Morgan, 220 Ariz. 120, 123, ¶ 7 (App. 2008) (noting that the elements of 

the two offenses need not be identical as long as they are “of the same 

character”); Crowell, 215 Ariz. at 539, ¶ 22 (“We acknowledge that our 

analysis of whether the elements of a modern-day offense are ‘comparable’

or ‘substantially similar’ to a historical common-law offense may not 

always be guided by a bright-line rule.”). Utilizing a strict element-byelement analysis of each of the subsections of theft to determine jury trial 

eligibility would run counter to the legislature’s purpose—to eliminate 

technical distinctions and to simplify prosecution—when it joined other 

states by combining various forms of stealing into a unified offense called 

theft. See Tramble, 144 Ariz. at 52. Because the legislature has determined 

the different subsections of theft have such commonality to be properly 

unified, the statute’s unitary nature calls for a unitary jury-eligibility 

determination. 

¶15 The unified nature of the theft statute makes prosecution 

easier because the State can file charges and proceed to trial on any theory 

supported by the evidence, without regard to technical distinctions that 

previously existed between offenses like larceny, embezzlement, and false 

pretenses. Supra ¶ 11; People v. Myers, 275 P. 219, 221 (Cal. 1929) 

(recognizing that California’s consolidated theft statute was designed to 

simplify procedure and relieve the courts from difficult questions that 

permit defendants to “escape just conviction solely because of the border 

line distinction existing between these various crimes”). Our holding is a 

corollary to that principle—avoiding a situation wherein a defendant 

charged with theft would be eligible for a jury trial on some evidentiary 

theories but not others.6 

¶16 Finally, as the superior court noted, Arizona has “always”

allowed jury trials for misdemeanor theft, and the State has not challenged 

that assertion. See Derendal, 209 Ariz. at 419, ¶ 9 (“[O]ur constitution 

requires that the state guarantee a right to jury trial for any defendant 

charged with an offense for which a jury trial was granted prior to 

statehood.”). Nor does the State argue that theft, as a single crime, cannot 

be jury-eligible. At oral argument in the superior court, the State 

acknowledged that “some” of the subsections of A.R.S. § 13-1802 could 

 

6 For example, accepting the State’s view that theft of property and 

theft of services must be analyzed separately would mean a person who 

rides a bus without paying a fare or sneaks into a concert without a ticket 

would not be entitled to a jury trial because no tangible property is 

involved, but a person who steals a bus pass or concert ticket would be 

entitled to a jury trial. Such a distinction has no logic. 
STATE v. HON KALAULI/KROLL

Opinion of the Court

9

have substantially similar elements to a common-law crime. Likewise, 

amicus City of Peoria argues that theft of any service is not jury-eligible but 

acknowledges that theft of property such as water or electricity would be 

jury-eligible under A.R.S. § 13-1802(A)(2). Notwithstanding the positions 

urged by the State and the amicus that theft of services has no common-law 

antecedent, over more than a century, no Arizona appellate court has held 

that a person charged with any variety of larceny or theft, in all degrees, is 

ineligible for a jury trial. And the only authority we have found indicates 

to the contrary. See State v. Paramo, 92 Ariz. 290, 293-94 (1962) (affirming 

conviction for petty theft after trial to a jury).

¶17 We therefore hold that the unified statutory scheme of theft 

adopted by our legislature is a comparable and substantially similar crime 

to common-law larceny in that the foundation of both crimes is the 

unlawful deprivation of property. For that reason, one charged with 

violating the unified crime of theft is entitled to a jury trial, regardless of 

the degree of the offense or the nature of the property alleged to have been 

taken.

CONCLUSION

¶18 We accept jurisdiction, but deny relief. We therefore affirm

the orders of the municipal court and superior court confirming Kroll’s 

right to a jury trial for theft.