NOTICE: NOT FOR OFFICIAL PUBLICATION. 

UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL 

AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.

IN THE 

ARIZONA COURT OF APPEALS

DIVISION ONE

STATE OF ARIZONA, 

Appellant,

v.

JOSHUA BRANDEN LANGSTON, 

Appellee.

No. 1 CA-CR 15-0258 

Appeal from the Superior Court in Maricopa County 

No. CR2013-003561-001 

The Honorable Jose S. Padilla, Judge 

REVERSED AND REMANDED 

COUNSEL 

Maricopa County Attorney’s Office, Phoenix 

By Lisa Marie Martin 

Counsel for Appellant 

Maricopa County Public Defender’s Office, Phoenix 

By Jamaar A. Williams, Tennie B. Martin 

Counsel for Appellee
STATE v. LANGSTON 

Decision of the Court 

2

MEMORANDUM DECISION 

Presiding Judge Peter B. Swann delivered the decision of the court, in 

which Judge Lawrence F. Winthrop joined. Judge Donn Kessler specially 

concurred.

S W A N N, Judge: 

¶1 Defendant Joshua Branden Langston pled guilty to 

dangerous drive-by shooting. Years later, the shooting victim died and 

the state charged Defendant with dangerous second degree murder. The 

superior court dismissed the murder prosecution as barred by double 

jeopardy. We reverse and remand. Under the Blockburger test, the 

successive charges describe different offenses and do not implicate double 

jeopardy. Further, even if the charges did describe the same offense, the 

murder prosecution would not be barred because that offense could not 

have existed until the victim died. 

FACTS AND PROCEDURAL HISTORY 

¶2 Defendant pled guilty in 2007 to one count of dangerous 

drive-by shooting, arising from a 2006 incident where he fired a gun at 

E.W.’s vehicle and caused her to sustain a gunshot wound. The court 

accepted Defendant’s plea, adjudged him guilty of dangerous drive-by

shooting, dismissed a companion aggravated assault charge, and 

sentenced him to a seven-year prison term. 

¶3 In 2012, while Defendant was serving his prison sentence, 

E.W. died. A medical examiner concluded that E.W.’s death was caused 

by complications from the 2006 gunshot wound; accordingly, the state 

charged Defendant with dangerous second degree murder. 

¶4 Defendant moved to dismiss the murder indictment under 

A.R.S. § 13-116. The court granted dismissal with prejudice, concluding 

that the prosecution was barred by double jeopardy because both the 

drive-by shooting indictment and the second degree murder indictment 

described the discharge of a handgun and the infliction of serious physical 

injury upon E.W. 

¶5 The state appeals. 
STATE v. LANGSTON 

Decision of the Court 

3

DISCUSSION

¶6 The state contends that dismissal was not warranted under 

double jeopardy principles or A.R.S. § 13-116. These are questions of law 

that that we review de novo. State v. Ortega, 202 Ariz. 320, 323, ¶ 8 (App. 

2008).

¶7 The double jeopardy clauses of the federal and Arizona 

constitutions (U.S. Const. amend. V and Ariz. Const. art. II, § 10) protect 

criminal defendants from successive prosecutions and punishments for 

the same offense. State v. Sherrill, 168 Ariz. 469, 474 (1991). The analysis is 

the same under both the federal and the state provisions. State v. Eagle, 

196 Ariz. 188, 190, ¶ 5 (2000). 

¶8 The double jeopardy bar applies when “the two offenses for 

which the defendant is punished or tried cannot survive the ‘sameelements’ test . . . sometimes referred to as the ‘Blockburger’ test.” United 

States v. Dixon, 509 U.S. 688, 696 (1993). Under the Blockburger test, two 

offenses are the same offense unless “each offense contains an element not 

contained in the other.” Id. The test is purely element-based -- it involves 

no inquiry into whether the offenses are predicated on the same conduct. 

See id. at 704, 711 (overruling “same-conduct” test established by Grady v. 

Corbin, 495 U.S. 508 (1990)); see also Ortega, 202 Ariz. at 325, ¶ 14. “[W]e 

analyze the elements of the offenses, not the facts of the case,” State v. 

Price, 218 Ariz. 311, 313, ¶ 5 (App. 2008), and are “prohibit[ed from] 

consider[ing] . . . the underlying facts or conduct,” Ortega, 202 Ariz. at 325, 

¶ 14. We may “consider[ ] . . . the offense as it has been charged in 

determining the elements of an offense and whether two offenses are the 

same.” Id. But alleged sentence enhancers do not constitute offense 

elements. See State v. Olsen, 157 Ariz. 603, 607 (App. 1988). 

¶9 Defendant was convicted of drive-by shooting under A.R.S. 

§ 13-1209, and charged with second degree murder under A.R.S. § 13-

1104.1 Section 13-1209 provides that “[a] person commits drive by 

shooting by intentionally discharging a weapon from a motor vehicle at a 

person, another occupied motor vehicle or an occupied structure.” 

Section 13-1104 provides that “[a] person commits second degree murder 

if without premeditation . . . [he] intentionally causes the death of another 

 

1 Contrary to Defendant’s contention, the aggravated assault charge 

dismissed in the initial prosecution has no bearing on the double-jeopardy 

analysis. Jeopardy does not attach to a dismissal pursuant to a plea 

agreement. Lewis v. Warner, 166 Ariz. 354, 356-57 (App. 1990). 
STATE v. LANGSTON 

Decision of the Court 

4

person . . . or . . . [k]nowing that [his] conduct will cause death or serious 

physical injury, [he] causes the death of another person . . . or . . . [u]nder 

circumstances manifesting extreme indifference to human life, [he] 

recklessly engages in conduct that creates a grave risk of death and 

thereby causes the death of another person.” These statutes do not 

describe the same offense under the Blockburger test. For example, driveby shooting requires proof that the defendant intentionally discharged a 

weapon, but second degree murder does not. And conversely, second 

degree murder requires proof that the defendant caused the death of 

another person, but drive-by shooting does not. And because the 

Blockburger comparison is limited to the elements of the offenses and not 

the manner in which they were committed, Defendant’s drive-by shooting 

conviction cannot bar his prosecution for second degree murder. Further, 

even if drive-by shooting and second degree murder did constitute the 

same offense under Blockburger, double jeopardy still would not bar the 

murder prosecution -- a victim’s post-trial death creates a new offense. 

See State v. Wilson, 85 Ariz. 213 (1959). 

¶10 Further, the prosecution is not precluded by A.R.S. § 13-116, 

which provides: 

An act or omission which is made punishable in different 

ways by different sections of the laws may be punished 

under both, but in no event may sentences be other than 

concurrent. An acquittal or conviction and sentence under 

either one bars a prosecution for the same act or omission 

under any other, to the extent the Constitution of the United 

States or of this state require. 

Though the second sentence of the statute describes a conduct-based 

analysis, it applies only to the extent of the double jeopardy clauses. 

Hernandez v. Superior Court (State), 179 Ariz. 515, 522 (App. 1994). And 

because double jeopardy does not bar Defendant’s prosecution, neither 

does the statute. 

CONCLUSION 

¶11 We reverse the superior court’s order dismissing the 

prosecution and remand for further proceedings. 
STATE v. LANGSTON 

Kessler, J., Specially Concurring 

5

KESSLER, J., specially concurring: 

¶12 I concur with the majority on its analysis of the double 

jeopardy clauses of both the United States and Arizona constitutions. In 

addition, I concur with the result on the effect of A.R.S. § 13-116 for the 

reasons I stated in my concurrence in State v. Williams, 232 Ariz. 158, 164, 

¶¶ 22-23 (App. 2013).