                                    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
                               FILED 3-20-2018


            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
                    STATE v. HON KALAULI/KROLL
                         Opinion of the Court



                                  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.




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                    STATE v. HON KALAULI/KROLL
                         Opinion of the Court

                              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.


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                     STATE v. HON KALAULI/KROLL
                          Opinion of the Court

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 sub-
parts, 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).


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                    STATE v. HON KALAULI/KROLL
                         Opinion of the Court

       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).



                                       5
                     STATE v. HON KALAULI/KROLL
                          Opinion of the Court

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).


                                       6
                    STATE v. HON KALAULI/KROLL
                         Opinion of the Court

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


                                      7
                   STATE v. HON KALAULI/KROLL
                        Opinion of the Court

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-by-
element 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.


                                     8
                    STATE v. HON KALAULI/KROLL
                         Opinion of the Court

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.




                           AMY M. WOOD • Clerk of the Court
                           FILED: AA




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