IN THE COURT OF APPEALS STATE OF ARIZONA DIVISION TWO THE STATE OF ARIZONA, Appellee,

v. JEFFREY ALLEN BROWN, Appellant. ) ) ) ) ) ) ) ) ) ) 2 CA-CR 2001-0343

DEPARTMENT B O P I N I O N

APPEAL FROM THE SUPER IOR COURT OF PIMA C OUNTY Cause No. CR20001355 Honorable Paul S. Bana

les, Judge Pro Tempore AFFIRMED Terry Goddard, Arizona Attorney General By Randall M. Howe and K atia Mehu

R. Lamar Couser Phoenix Attorneys for Appellee

Tucson Attorney for Appellant D R U K E, Judge (Retired).2

¶1 A jury found Jeffrey Allen B rown guilty of

shoplifting, a class four felony. The trial court then conducted a bench trial on the state’s allegation of prior conviction and

found that Brown had been previously convicted of manslaughter, which en

hanced the sentencing ra

nge for the shoplifting o ffense pursuant t o A.R.S. § 13-604. As a result, the trial court sentenced him to

an aggravated, six-year

prison term. On

appeal, Brown raises two issues: whether the time limits of Rule 8.2, Ariz. R. Crim. P., 16A A.R.S., apply to the trial of an allegation of prior c onviction

an d whether the trial court err ed in refusing to give a lesse r-included offense jury instruction

. Because these issues present questions of la w, wereview them de novo. State v. Gross , 201 Ariz. 41, 31 P.3d 815 (App. 2001); State v. Carrasco , 201 Ariz. 220, 33 P.3d 791 (App. 2001). Finding no reversible error, we affirm Brown’s conviction and sentence. Rule 8.2 ¶2 Brown

first argues that the trial c ourt erred in

conductin

g the bench trial on the allegation of prior conviction beyond the time limits o f

Rule 8.2. At a pretrial c onference on July 10, 2000, defense coun sel told the court that those tim e limits would expire on August 1 6. Brown’s jury trial took place on August 7 and 8, but the bench trial oc curred on August 21, five days after the time limits had e xpired. Brown claims this delay violated the require ments of Rule 19. 1(b)(2), A riz. R. Crim. P., 17 A.R.S., and thus violated the Rule 8.2 time limits. We disagree. ¶3 The relevant part of Rule 19.1(b)(2) states that, if the jury returns a guilty verdict, “the issue of the prior conviction shall then be tried, unless the defendant has admi

tted the prior conviction.” Brown contend s the word “then” means that a prior conviction trial must oc cur “immediately

after the verdict of guilty .” We need not decide this i ssue, however, becau

se the3

record shows that Brown admitted the prior convicti on while testifying at trial. W hen asked by his attorney whether he had “a priorfelony conviction from S alt Lake County in Utah Caus e No. 941901628 that [h]as a date of conviction of April 11, 1995,” Brown answered, “That’s correct.” This admission satisfied the express exception in Rule 19.1(b)(2) and made the subsequent bench trial on the prior conviction un necessary. ¶4 The trial court thought otherwise, however, stating that it needed to set a bench tri al

on the prior conviction allegation “because [the state ] still need[ed] to prove some additional elementsfor use of the prior for en hancement purposes.” B ut, in Sta te v. Seymour , 101 Ariz. 498, 500, 421 P.2d 517, 519 (1966), our supreme court observed that a defendant’s admi ssio n during trial “is surely the strongest evidence available to prove a prior conviction . . . [because] thereis no danger that an accused will falsely testify that he has been previously convicted.” The court commented that, unde

r such circumstances, “the production of other evidence by the St ate to show the previous conviction w ould . . . [be] an idle f ormality.” Id

. Then, in Stat e v. McMurry , 20 Ariz. App. 415, 513P.2d 953 (1973), Division On e of this court addressed whether

adefendant’s admission w as sufficient to e st ablish a prior felony convic tion for enhancement purposes. Relying on Seymour and Rule 19.1(b)(2), Division One found that McMurry’s admission

during trial that he had a prior theft conviction was “sufficient to support the increased sentence imposed” by the trial court. McMurry , 20 Ariz. App. at 422, 513 P.2d at 960. ¶5 We likewise find that Brown’s admission during trial of his pr ior felony conviction

was sufficient for the trial c ourt to impose an enhance d sentence pursuant to § 13- 604. And, although Brown did not admit that the prio r convictio n was for manslaughter, he admitted4

sufficient facts for the trial court to easily dete rmine that the admitted pr ior felony conviction and the one set forth in the allegation of prior conviction were one and the same. ¶6 Moreover, even if we assume, as Brown cla ims, that the Rule 8.2 tim e limits apply to the trial of anallegation of prior convict ion, the record shows he ha d advised the trial court

that those limits would expire on August 16, yet failed to object to the cour t’s scheduling the prior conviction

trial five days beyond that date. Under such circumstanc es and, again, assumin

g Rule 8.2 applies, Brown thus waived a ny c laim that the rule was violated. “[A ] defendant may not complain of a Rule 8 violation for the first time after the

verdict and on appeal.” State v. Swensrud , 168 Ariz. 21, 22, 810 P.2d 1028, 1029 (1991). Lesser-Included

Offense Instruc

tion ¶7 Brown

next argues that the trial court erroneously r efused his request to instruc t the jury that “simple” shoplifting u nder A.R .S. § 13-1805(A) is a le sser-included offense

of “aggravated” shoplifting under § 13-1805(I ). We review a

trial court’s denial of a requested jury instruction for an abuse of discretion. State v. Bolton , 182 Ariz. 290, 896 P.2d 830 (1995). A trial court must give a lesser-included offense instruction if an offense is, in fact, a lesser-included off ense o f another, and the evidence supports giving the lesser-included instruct ion. Ariz. R. Crim. P. 23.3, 17 A.R.S.; State v. Miranda , 200 Ariz. 67, 22 P.3d 506 (2001). ¶8 The evidence here showed th at Brown entered a

Target store with a

shopping bag, placed a videocassette recorder (VCR) in the bag, and left the store without paying for the VCR. Brown testified that, although he h ad entered the store inten

ding “to take something and try to sell it” to buy insulin for the diabetic e pisode he was experienc ing, he was homeless a

nd had been5

using the bag to “carry [his] clo thing and [his] food,” but not “t o facilitate or to assist [him] i n doing the shoplift.” ¶9 The indictment charged Brown with class four

shoplifting under § 13-1805(I ). The relevant part of § 13-1805 (A) defines shoplifting as follows: A person commits shoplifting if, w hile in an establishment in whichmerchandise is

displayed for sale, such p erson knowingly obtains suchgoods of another with the intent to de prive that person of such goods by: 1. Removing

any of the goods from

the immediate display or from any

other place within the esta blishment without

paying the purchase price . . . . ¶10 Subsection G of the statu

te ma kes shoplifting a class one m isdemeanor if the propertyhas a value

of $250 or less, a class six f elony if the

property is a firearm or

has a value of more than $250 but not more than $2,000, and a class f ive felony if the property has a value of morethan $2,000 or has been tak en “during any

continuing criminal episode regardless of the value.” ¶11 Subsection I of the statute, the subsection at issue here , makes shoplifting a class four felony if the person “who commits shoplifting . . . has previously committed o r been convicted with in the past five years of two or m ore offenses involving burg lary, shoplifting, robberyor theftor who in the course of shoplif ting entered the merca

ntile establishment with

an artifice, instrument, container, device or other article that was intended to facilita te shoplifting.” At tr ial, the state claimed that Brown had violated the facilitation porti on of subsection I rather than the prior conviction portion.1 1993 Ariz. Sess. Laws, ch. 255, § 32. 6

¶12 While se ttling jury instructions in the trial c ourt, Brown argued that, by adding subsection

I to § 13-1805, 1 th e legi slature created a new, substantive offense of “a ggravated” shoplifting and requested that the court first instruct the jury on “ aggravated shoplifting and then further instruct them on the necessarily included offense of s hopli fting.” The court refused the request, reasoning that the facilita tion portion of subsectio n I was an “enhanceme nt or classification” provision and did not create a new, substantive offense. The court thus instructed the jury on the applicable elements of shoplifting under § 13-1805(A) and included on the verdict form an interrogatory on whether the state had proven beyond a reasonable doubt that Brown had entered the store “with an artifice, instru ment, container, devi ce or article that was inte nded to facilitate the shoplifting.” The court furth er instructed the jurors that,if they found Brown not guilty of shoplifting, they need “not go any further” but, if they found him guilty of the offense, they needed “to go one additional step” and consider the inte rrogatory. The jury found Brown guilty of shoplifting and answered the interrogatory in t he affirmative. ¶13 Brown

maintainsthat the facilitation portion of § 13-1805(I) creates th e substantive offense of aggravated shoplifting,not merely adifferent classificati

on of the offense. The s tate responds that § 13-1805 creates bu t a single crime with various provisions for classifying its seriousnessand is thus analogous to our theft statute, A.R.S. § 13-1802. In support, the state cites several cases so interpreting § 13- 1802. As the state points out, th ese cases generally hol

d tha t § 13-1802 creates “a single crime of ‘theft,’ c

ombining or m

erging 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); see also State v. Wolter , 197 Ariz.7

190, ¶8, 3 P.3d 1110, ¶8 (App. 2000) (A.R.S. §§ 13-1801 a nd 13-1802

“are related statutes that constitute one law”); State v. Winter , 146 Ariz. 461, 706 P.2d 1228 (App. 1985) (theft is single offense under § 13-1802); State v. Brokaw , 134 Ariz. 532, 658 P.2d 185 (App. 1982) (§ 13-1802 defines single cr ime of theft). In addi tion, our supreme court ha s similarly held that the kidnappingstatu te, A.R.S. § 13-1304, defines “a single crime known as kidnapping. ” State v. Eagle , 196 Ariz. 188, ¶10, 994 P.2d 395, ¶10 (2000). ¶14 As the state als o points out, this court specific ally stated in Brokaw

that a lesserincluded offense analy

sis cannot properlybe applied to our current theftstatute, A.R.S. § 13- 1802. That statute does not create se parate offenses having the value of the stolen property or services as the distinguishing elemen t. Instead, it defines a single crime , t heft, and provides that the classification of the offense for punishm ent purposes is to be

de termined by the value of the stolen propert y or services. 134 Ariz. at 535, 658 P.2d at 188. And, in Eagle , the supreme court state d that subsection

B of the kidnapping statute, § 13-130 4, “deals with

factors that could

change the classificat

ion [of the offense] and thus alter a defendant’s [punishment] exposure, but the elements of the cr ime remain the same.” 196 Ariz. 188, ¶10, 994 P.2d 395, ¶10. ¶15 F rom

this body of case law, the state argues that § 13-1805 likewise “def ines a single crime, shoplifting, and provides that the classification of the o ffense, for punishme

nt purposes, is to be determined by value, prior convictions, and the m ethodology

used to facilitate the offense.” ¶16 Wh en

interpre ting a statute, we seek “to de termine and give effe

ct to the legislature’s intent.” State v. Affordable Bail Bonds , 198 Ariz. 34, ¶13, 6 P.3d 339, ¶13 (App.8

2000); see also State v. Reynolds , 170 Ariz. 233, 823 P.2d 68 1 (1992) (statutory interpretation requires court to discern legislative intent). The best source of that intent is the statutory language itself. State Compensation Fund v. Mar Pac Helicopter Corp ., 156 Ariz. 348, 752 P.2d 1 (App. 1987). Accordingly, we must g i ve meaning to each word or phrase so that none “is rendered superfluous, void, contradictory or insign ificant.” State v. Superior Court , 113 Ariz. 248, 249, 550 P.2d 626, 627 (1976); see also Fraternal Order of Eagles, Inc. v. City of Tucson , 168 Ariz. 598, 816 P.2d 255 (App. 1991) (stat utes co nstrued to give effect to every word); Weitekamp v. Fireman’s Fund Ins. Co ., 147 Ariz. 274, 709 P.2d 908 (App. 1985) (each w ord or phrase of statute given meaning). ¶17 Here, the facili tation portion of § 13-1805(I ) expressly requires that, when the person entered the store to comm it shop lifting, he or she “intended” to use “an artifice, instrument, container, device or other article” to facilita te the offense. The fa

cilitation portion of the statute thus differs from the prior conviction portion of § 13-1805(I) as well as th e classification

provisions of § 13-1805(G) and the theft statute, § 13-18 02(E), none of which in cludes the word “intended.” Beca use we must give meaning to the word “intended” in th e facilitation

portion of § 13-1805(I), Superior Court , we conclude th at , before a person may

be convicted of the class four offense of “facilitate

d shoplifting,” the state must n ot only prove the elementsof sh oplif

ting, as defined by § 13-180 5(A), but the additional el ement that the person entered the store with some thing he or she intended to fa cilitate the shoplifting. ¶18 At

one time, two forms of intent were r eco gnized in Arizona, gene ral intent and specific intent.9 In crimes of general inte

nt, the party is presumed t o have the requisite criminal intent fro

m th e commission of the crime itself. Specific intent, however, is an additional mental ele ment to certain crimes, . . . [such as] assault w ith intent to commit murder whic h requires a specific inte

nt . . . to commit

a murder, in addition to a general intent to commit a ssault. State v. Jamison , 110 Ariz. 245, 248, 517 P.2d 1241, 1244 (1974); seealso State v . Bell , 113 Ariz. 279, 551 P. 2d 548 (1976); State v. Miller , 123 Ariz. 491, 600 P.2d 1123 (App. 1979). Consequently, certain crimes require d proof of and instruction on the specific intent necessa ry to commit the crime. Miller

(attempt requires evidence of specific intent to commi t substantive offense); State v. Price , 123 Ariz. 197, 598 P.2d 1016 (App.) (trial court m ust instruct that aiding and abetting requires proof defendant intended to help commit crime), aff’d inpart and rev’d in part , 123 Ariz. 166, 598 P.2d 985 (1979); State v. Foster, 121 Ariz. 287, 589 P.2d 131 9 (App. 1978) (state has burden of proving specific intent to defraud business est ablishment). ¶19 But, under our current criminal code, we no longer distinguish between genera l and sp ecificintent cr imes. See State v. Bridgeforth , 156 Ariz. 60, 62, 750 P. 2d 3, 5 (1988) (1978 codeabandoned use of

terms “specific intent” and “general intent”); State v. Robles , 128 Ariz. 89, 623 P.2d

1245 (App. 1980) (specif ic and general intent labels no long er applicable). Inste

ad, A.R.S. § 13-105(9) defines four culpable m ental states: “intentionally, knowingly, recklessly or withc riminal negligence.” The se mental states “replac

e all previous mental state s used in our criminal laws.” Bridgeforth , 156 Ariz. at 62, 750 P.2d at 5; s ee also R obles (same). The legislature, however, need not prescribe a culpable mental state in defining a crime. SeeA.R.S. § 13-202(B); State v. Thompson , 138 Ariz. 341, 674 P.2d 895 (App. 1983). But

if the legislature does so, that mental stat e bec omes an element of the offense to be proved by the state. See2 Secti on 13-105(9)(a), A.R .S., provides that “‘[ i]ntentionally’ or ‘with the i ntent t o’ means , with respect to a result or to conduct described by a statute defining an offense, that a person’s objective is to cause that

result or to engage in that conduct.” We believe this definition i ncludes the word “intended.” 10 generally § 13-202; Bridgeforth (charge of schem e or ar tifice to defraud requir es state to prove defendant knowingly obtaine d benefit by

false pretense and intended to defraud others); State v. Routhier , 137 Ariz. 90, 669 P.2d 68 ( 1983) (conviction for attempted murder requires evidence showing intent to commit crime). ¶20 Forthe crime of shoplifting, the legislature has prescribed two diff e rent mental states. Under § 13-1805 (A) , a person commits shoplif ting if, while in a store displa ying goods forsale, the person “knowingly obtains such goods of another with the intent to deprive that person of such goods” by one of the m eans listed in the statute. The legislature has thus prescrib ed the mental states of “knowingly” and “with the intent t o” as elements of the crime, both of which the state mu st pr ove for a conviction. Similarly, because the legislature has prescribed the mental state of “intended” in the facilitation portion of § 13-1805(I), the state must prove that mental state to o btain a conviction for fac ilitated shoplifting. 2 ¶21 The question remains, howeve r, wheth e r shoplifting under § 13-1805(A) is a lesserincluded offense of facilitated shoplifting under § 13-1805(I). “A lesser- included offense is one ‘composed solely of

some but not all of the elem ents of the greater crim

e so that it is impossible to have committed the crime charged witho ut having committed the

lesser one.’” Miranda , 200 Ariz. 67, ¶2, 22

P.3d 506, ¶2, quoting State v. Celaya , 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983). The offense is a lso less er included “when the charging document describes the lesser offense even t ho ugh the lesser offense would not always form a constituent part of the greater11

offense.” State v. Hurley , 197 Ariz. 400, ¶13, 4 P.3d 455,¶13 ( App. 2000). Put another w ay,
acourt must ascertain “whe ther the greater offen

se, as described by

a statute or as charged, can be committed without necessarily committing the lesser offense.” State v. Ennis , 142 Ariz. 311, 314, 689 P.2 d 570, 573 (App. 1984); see also State v. Chabolla- Hinojosa , 192 Ariz. 360, 965 P.2d9 4 (App. 1998). And, conversely, it must also be shown “that the lesser cannot b e committed without always sa tisfying the corresponding e lements of

the greater.” In re Victoria K. , 198 Ariz. 527, ¶17, 11 P.3d 1066, ¶17 (App. 2000). ¶22 That

is the case here. A person cannot commit the class four offense of facilitated shoplifting under § 13-1805(I) without necessarily committing the lesser offe nse of shoplifting under § 13-1805(A). The language of § 13-1805(I) itself makes this clear. As noted above, the statutestates that a “person who commits shopl ifting and . . . who in the course of s hoplifting” enters the sto re with s omething he or she intends to f acilitate the shoplifting is guilt y of a class four felony. In other words, th is language makes the

commiss ion of shoplifting a necessa ry element of fac il itated shoplifting, and thus, a person cannot commit t he greater offense of facilitated shoplifting without necessari ly committing th

e less er offense of shoplifting . On the other hand, the

person cannot commit the lesser offense of shoplif ting without satisfying all but

one element of the greate r offense of facilitate

d shoplifting, namely, tha t the person

en tered the store with something he or she intended to facilitate the shopli fting. ¶23 Accordingly, in th i s case, Brown was entitled to his requested lesser-included offense instruction because shoplifti ng “is in fact a lesser-included offense to [facilitated shoplifting] and . . . the evidence s upport [ed] the giving of the lesser-included instruction.” Miranda , 200 Ariz. 67, ¶2, 22 P.3d 506, ¶2. Brown admitted he had intended to take the VCR12

andsell it to buy insulin, but denied he had entered the store intending to use the bag in whic h he carried his food and clothing to facil itate his shoplifting. The trial court thus erred in refusing the requested instruction. That error, however, di d not prejudice Brown and does not require reversal of his conviction. State v. Rosas-Hernandez , 202 Ariz. 212, 42 P. 3d 1177 ( App. 2002) (trial court’s failure to give instruction not reversible error unless defendant prejudiced). ¶24 In State v. LeBlanc , 186 Ariz. 437, 440, 924 P .2d 441, 444 (1996), the supreme court directed trial courts to “give a ‘reasonable effor

ts’ instruction in every

criminal case involving lesser-included of fenses.” That instruction pe rmits jurors to consider a lesser o ffense “if, after full and carefu

l consideration

of the evidence, they a

re unable to reach agre

ement with respect to the [greater offens

e because they] . . . either (1) find[] the defendant not guilty on the greater charge, or (2) afte r reasonable efforts c

annot agre e w hether to acquit or convict on that charge.” Id . at 438, 924 P.2d at 442. ¶25 In

this case, however, the trial court instructed the jurors to first con sider the lesser offense of shoplifting and, only if the y f ound Brow n guilty of that offense, were they to then consider the interrogatory on the gre ater offense of fac

ilitated shoplifting. Although this instruction

reversed the procedura

l order of the instr

uction app roved in LeBlanc , we find no substantive

difference between the two. Both inform jurors that the greater off ense includes a lesser offense and that they m ay find a defendant

guilty of the lesser offens e without also finding the defendant guilty

of the greater offense . Both thus give the defendant an opportunity to argue,

as Brown did here, that even t hough the state

might hav e proven the lesser offe nse beyond a reasonable

doubt, it had failed to so prove the g reater offense. Ac

cordingly, although we agree with Brown that the facilitation portion of § 13-1805(I) creates a greater offense to the lesser13

offense of shoplifting

under § 13-1805(A) and that he wa s entitled to the lesser-inclu ded offense instruction

prescribed by LeBlanc , we conclude thatthe trial court’s instruction a nd interrogatory neither prejudiced Brown n or resulted in reversible e rror. ¶26 We therefore affirm Brown’s conviction and sentence.

____________________________ ___________ WILLIAM E. DRUKE, Judge (Retired) CONCURRING:

____________________________ ___________ JOHN PELANDER, Presiding J udge

H O W A R D, Judge, specia lly concurring. ¶27 Concerning the resolution

of the issue involving Rule 8.2, Ariz. R. Crim. P., 16A A.R.S., because Brown did not raise the issue below, it is waived. See State v. Swe nsrud , 168 Ariz. 21, 22, 810 P.2d

1028, 1029(1991). Accordingly, I would go no further in deciding that issue. ¶28 In

determining whether fa

cilitated s hoplifting un

der A.R.S. § 13-1805(I) is a greater offen se with additional elements tha n ordinary shoplifting, I bel ieve the majority gives und u e emphasisto the inclu sion of the word “intended.” Th e words “that was intended to f acilitate shoplifting” are merely an adjec tive clause which modifie s the list of articles rather than a definition of a particular mental s

tate require ment for facilitated shoplifting. In fact, “intended14

to” is not one of the phrases def ined in A.R.S. § 13-01 5(9), the criminal cod e section defining various mental states. Had the legislature desired the facilitation portion of § 13-1805(I) to include

amens rea of intentionally , it most likely would have utilized precise language defined by statute. Accordingly, the result would be the same if the statute simply read, “in the course of sh oplifting entered the mercantile establish ment with an artifice, in

strument, container, device or other article to be used to facilitate shoplifting.” ¶29 I would hold that a person commits the additional element required for facilitated shoplifting by committing the describe d act: “in the course of shoplifting e nter[ing] the mercantile establishment

with an artifice, instrument, container, device or other article that was intended to facilitate shoplifting.” I a gree with the remaining a nalysis of the opinion.

____________________________ ___________ JOSEPH W. HOWARD, Judge