342 P.3d 1272
Ariz. Ct. App.2015Background
- In June 2013, store loss-prevention observed Veloz conceal several DVDs inside a shirt, place the shirt in a shopping cart, and exit the store without paying; police later found opened DVDs at his home. Total value: $157.62.
- Veloz was tried by jury and convicted of organized retail theft (A.R.S. § 13-1819(A)(2)) and theft (A.R.S. § 13-1802), then sentenced to concurrent prison terms (total 4.5 years on the organized-retail-theft count) plus restitution; he appealed.
- Issues on appeal included: whether organized retail theft is unconstitutionally vague; whether evidence supported the organized-retail-theft conviction; whether the trial court should have instructed on shoplifting as a lesser-included offense; whether the theft conviction violated double jeopardy as a lesser-included offense; and whether a Criminal Restitution Order (CRO) and a clerical sentencing entry were proper.
- The court analyzed whether § 13-1819(A)(2) requires a culpable mental state (scienter) despite not expressly stating one, considering chapter context and legislative history.
- Court concluded § 13-1819(A)(2) necessarily requires intent to deprive (scienter), making theft a lesser-included offense; it vacated the theft conviction and the portion of the CRO unrelated to restitution, corrected the minute entry, and otherwise affirmed.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument (Veloz) | Held |
|---|---|---|---|
| Whether theft conviction violates double jeopardy because it is a lesser-included offense of organized retail theft | §13-1819 does not include an express scienter, so organized retail theft is a distinct offense and theft conviction can stand | Organized retail theft necessarily includes theft elements; convicting of both violates double jeopardy | Court held §13-1819(A)(2) requires intent to deprive; theft is a lesser-included offense; vacated theft conviction |
| Whether §13-1819 is unconstitutionally vague or overbroad for lacking a definition of "organized" | Statute provides adequate notice; "organized" is only in the title and is not an element | Term "organized" is undefined and could criminalize innocuous conduct | Court found no facial vagueness: "organized" is not an element and statute's text supplies the operative conduct |
| Sufficiency of the evidence for organized retail theft conviction | Evidence did not show coordinated scheme; statute requires more than the conduct proved | Observed concealment/wrapping of DVDs in a shirt and walking out without paying satisfied use of an article to facilitate removal and intent to deprive | Court held evidence was sufficient to support organized retail theft conviction |
| Whether trial court erred by not sua sponte instructing on shoplifting as a lesser-included offense | Shoplifting is a lesser-included and court should have instructed | No instruction warranted because organized retail theft requires use of an artifice/device and evidence supported that element | Court held no fundamental error: evidence did not support a lesser-included instruction of shoplifting |
Key Cases Cited
- State v. Haight-Gyuro, 218 Ariz. 356 (discussion of standard for viewing evidence in support of a verdict)
- State v. Garcia, 235 Ariz. 627 (inference of intent to deprive in theft-related statutes)
- State v. Yazzie, 232 Ariz. 615 (strict liability disfavored; scienter requirement analysis)
- State v. DiGiulio, 172 Ariz. 156 (elimination of an element in jury instruction is fundamental error)
- State v. Cota, 234 Ariz. 180 (limits on criminal restitution orders)
- Ball v. United States, 470 U.S. 856 (double jeopardy bars multiple convictions for same offense)
- Morissette v. United States, 342 U.S. 246 (common-law theft offenses carry intent requirement)