                              IN THE
              ARIZONA COURT OF APPEALS
                           DIVISION TWO


                      THE STATE OF ARIZONA,
                            Appellant,

                                 v.

                   SHILOE DOMINIQUE ESPINOZA,
                            Appellee.

                      No. 2 CA-CR 2012-0358
                      Filed October 11, 2013

          Appeal from the Superior Court in Pima County
                       No. CR20102204002
            The Honorable Richard D. Nichols, Judge

                            AFFIRMED


                            COUNSEL

Barbara LaWall, Pima County Attorney
By Jacob R. Lines, Deputy County Attorney, Tucson
Counsel for Appellant

Lori J. Lefferts, Pima County Public Defender
By Rebecca A. McLean, Tucson
Counsel for Appellee



                            OPINION

Judge Eckerstrom authored the opinion of the Court, in which
Presiding Judge Kelly and Judge Espinosa concurred.
                        STATE v. ESPINOZA
                        Opinion of the Court

E C K E R S T R O M, Judge:

¶1          The state appeals from the trial court’s order granting
Shiloe Espinoza’s motion to dismiss her aggravated robbery charge
on double jeopardy grounds. For the following reasons, we affirm.

                 Factual and Procedural Background

¶2           In 2010, Espinoza was charged with aggravated
robbery. At trial, the jury was instructed that if they found her not
guilty of aggravated robbery, or if they could not reach a verdict on
aggravated robbery, they could consider theft of a means of
transportation as a lesser-included offense.

¶3           During deliberation, the jury sent a note stating, “We
may be hung on the first offense, how do we word that and move on
to the lesser charge?” The judge responded, “Pursuant to the
instructions, you may leave it blank and consider the lesser offense.”
The jury left the verdict form blank as to aggravated robbery and
found Espinoza guilty of theft of a means of transportation.

¶4          Espinoza appealed her conviction, asserting that
because theft of a means of transportation was not a proper lesser-
included offense of aggravated robbery, she was improperly
convicted of an offense not charged. We agreed and vacated the
conviction and sentence. State v. Espinoza, No. 2 CA-CR 2011-0182,
¶ 1 (memorandum decision filed June 1, 2012).

¶5           After our mandate issued, Espinoza filed a motion to
dismiss, asserting that trying her again for aggravated robbery
would violate her right to protection from double jeopardy under
the United States and Arizona Constitutions. The trial court granted
this motion, essentially finding that the jury’s guilty verdict for theft
of a means of transportation served as an implied acquittal for
aggravated robbery. The state now appeals. We have jurisdiction
pursuant to A.R.S. §§ 12-120.21(A)(1) and 13-4032(1).




                                   2
                         STATE v. ESPINOZA
                         Opinion of the Court
                           Double Jeopardy

¶6           Whether double jeopardy applies is a legal conclusion
we review de novo. Lemke v. Rayes, 213 Ariz. 232, ¶ 10, 141 P.3d 407,
411 (App. 2006). The United States Constitution provides that a
person may not be brought into jeopardy more than once for the
same offense. U.S. Const. amend. V; Benton v. Maryland, 395 U.S.
784, 794 (1969).1 That provision is based on the premise that “‘the
State with all its resources and power should not be allowed to make
repeated attempts to convict an individual for an alleged offense,
thereby subjecting him to embarrassment, expense and ordeal and
compelling him to live in a continuing state of anxiety and
insecurity.’” Benton, 395 U.S. at 796, quoting Green v. United States,
355 U.S. 184, 187 (1957). “Jeopardy attaches as soon as the jury is
impaneled and sworn,” McLaughlin v. Fahringer, 150 Ariz. 274, 277,
723 P.2d 92, 95 (1986), and “[g]enerally, once jeopardy attaches the
defendant may not be subject to a second trial for the same offense.”
Jones v. Kiger, 194 Ariz. 523, ¶ 7, 984 P.2d 1161, 1164 (App. 1999).
Retrial is prohibited, however, “‘only if there has been some event,
such as an acquittal, which terminates the original jeopardy.’”
Lemke, 213 Ariz. 232, ¶ 19, 141 P.3d at 414, quoting Richardson v.
United States, 468 U.S. 317, 325 (1984). “When no terminating event
has occurred, the jeopardy ‘continues’ unabated.” Id., quoting
Richardson, 468 U.S. at 335. A mistrial due to a hung jury does not
terminate jeopardy. Id.

¶7           The question presented here is whether jeopardy
terminates when a jury is discharged without having returned a
verdict and without a showing of “manifest necessity” for jeopardy
to continue. We conclude that it does.

¶8          In Green v. United States, 355 U.S. 184 (1957), the
Supreme Court addressed this very question. There, the jury was
instructed that it could find the defendant guilty of either first-
degree or second-degree murder. Id. at 185. The jury found the

      1Because   the state has not presented an appellate argument
under our state constitution, we address the issue only under federal
law. See State v. Patterson, 230 Ariz. 270, n.3, 283 P.3d 1, 4 n.3 (2012).

                                    3
                           STATE v. ESPINOZA
                           Opinion of the Court
defendant guilty of second-degree murder but was silent as to first-
degree murder. Id. at 186. After the defendant’s conviction for
second-degree murder was reversed, he was tried again for first-
degree murder and raised the defense of double jeopardy. Id. The
Court concluded, “[A] defendant is placed in jeopardy once he is put
to trial before a jury so that if the jury is discharged without his
consent he cannot be tried again.” Id. at 188.

¶9            The Court also observed that jeopardy does not
terminate when “‘unforeseeable circumstances . . . such as the failure
of a jury to agree on a verdict’” make completion of a trial
impossible. Id., quoting Wade v. Hunter, 336 U.S. 684, 689 (1949). As
our supreme court has explained, when a mistrial is granted because
the jury has reached an impasse, “a defendant’s right to have a
particular jury decide his fate becomes ‘subordinate to the public
interest in affording the prosecutor one full and fair opportunity to
present his evidence to an impartial jury.’” Gusler v. Wilkinson, 199
Ariz. 391, ¶ 18, 18 P.3d 702, 705 (2001), quoting Arizona v. Washington,
434 U.S. 497, 505 (1978).          However, given the defendant’s
countervailing right to be free from multiple prosecutions, the state
bears a heavy burden in establishing that there was a “‘manifest
necessity’” for jeopardy to continue. Id., quoting Washington, 434 U.S.
at 505. For this reason, jeopardy cannot continue due to a hung jury
absent a “‘high degree’” of necessity—something which cannot be
shown unless the record reflects that the jury is “genuinely
deadlocked.” Washington, 434 U.S. at 506, 509; see also Gusler, 199
Ariz. 391, ¶ 18, 18 P.3d at 705 (requiring “true deadlock” to
demonstrate manifest necessity for mistrial).

¶10          Our supreme court has indicated that a jury’s mere
statement that it has been unable to reach a verdict after persistent
deliberations—and after proceeding to consider a lesser offense in
the context of a LeBlanc 2 instruction—does not, without further
inquiry by the court, demonstrate a true deadlock. Gusler, 199 Ariz.
391, ¶¶ 18-23, 18 P.3d at 705-06; cf. Brazzel v. Washington, 491 F.3d
976, 984 (9th Cir. 2007) (“Genuine deadlock is fundamentally
different from a situation in which jurors are instructed that if they

      2State   v. LeBlanc, 186 Ariz. 437, 924 P.2d 441 (1996).

                                     4
                         STATE v. ESPINOZA
                         Opinion of the Court
‘cannot agree,’ they may compromise by convicting of a lesser
alternative crime . . . .”). Assuming the jurors followed the court’s
instructions, State v. Newell, 212 Ariz. 389, ¶ 69, 132 P.3d 833, 847
(2006), the jury’s silence as to the aggravated robbery count, coupled
with its conviction on theft of a means of transportation,
demonstrates, at most, that the jury could not reach agreement on
the greater charge after a “full and careful consideration of the
evidence” and “reasonable efforts” at deliberation. LeBlanc, 186
Ariz. at 438, 924 P.2d at 442. “Reasonable efforts” is not the
equivalent of “genuine deadlock.”

¶11           Nor does the specific content of the jury note here
demonstrate that the jury was truly deadlocked. As our supreme
court observed in Gusler, jury notes are not the equivalent of final
verdicts, 199 Ariz. 391, ¶ 12, 18 P.3d at 704, and nothing prevents
jurors from spontaneously returning to deliberations on the greater
offense after a court has advised them that they may consider the
lesser, Blueford v. Arkansas, ___ U.S. ___, ___, 132 S. Ct. 2044, 2051
(2012). Moreover, the actual language of the jury’s note indicating
that it “may be hung” does not unambiguously convey that the jury
could not, with further deliberations, achieve a final verdict.

¶12           We recognize that when a jury is instructed pursuant to
LeBlanc, it may be impossible for the state to develop a record
showing a genuine deadlock as to a greater charge when a jury
convicts on a lesser charge. Before a verdict is returned, a
prosecutor has no basis for seeking a mistrial, see Ariz. R. Crim. P.
22.4 and 22.5, and after a verdict is returned, it is procedurally
inappropriate, see Ariz. R. Crim. P. 24.1. The record will therefore
never reflect anything more than that the jury was unable to reach a
verdict after “reasonable efforts.”

¶13           This problem, however, inherent in the LeBlanc
instruction, is only likely to create a double jeopardy problem in this
peculiar scenario where the jury returned a conviction on an invalid
lesser-included offense. In the ordinary situation where the verdict
form includes a proper lesser offense, if the jury leaves the form
blank as to the greater offense and convicts on the lesser, and the
conviction on the lesser is reversed based on trial error, retrial on the
lesser will not be barred. See, e.g., Peak v. Acuña, 203 Ariz. 83, ¶ 9, 50
                                    5
                         STATE v. ESPINOZA
                         Opinion of the Court
P.3d 833, 835 (2002). 3 Our holding is therefore limited to this
peculiar and rare situation where the defendant has been convicted
of an improper lesser requested by the state.4

¶14         Finally, the state asserts that because of the rule
announced in LeBlanc, 186 Ariz. at 438, 924 P.2d at 442, whereby a
jury need not acquit a defendant of a charged offense before
considering a lesser-included offense, the jury here did not
impliedly acquit Espinoza of armed robbery when it reached a
verdict on the “lesser” charge. Although we agree that the record
before us does not demonstrate that the jury intended to acquit
Espinoza on the aggravated robbery charge, whether she was
impliedly acquitted is immaterial. As the Supreme Court stated in
Green, “[T]he result [that double jeopardy has been implicated] . . .
need not rest alone on the assumption . . . that the jury for one
reason or another acquitted [the defendant] . . . .” 355 U.S. at 190-91.
Because the jury was dismissed without returning a verdict, without
the defendant’s consent, and without the state demonstrating

      3If the jury leaves the verdict form blank as to the greater and
acquits as to the lesser, the jury has necessarily acquitted the
defendant of the greater. See Peak, 203 Ariz. 83, ¶ 5, 50 P.3d at 834
(“A lesser-included offense is one that contains all but one of the
elements of the greater offense. Logically, therefore, if one has not
committed the lesser offense, one cannot have committed the
greater.”). If the jury declares that it is unable to reach a verdict as to
both the greater and the lesser, an Allen charge may be given, State v.
Dunlap, 187 Ariz. 441, 464, 930 P.2d 518, 541 (App. 1996), or the
judge may “inquire of the jurors to determine whether and how
court and counsel can assist them in their deliberative process.”
Ariz. R. Crim. P. 22.4. If the jury was still unable to reach a verdict,
the record would then reflect a “genuine deadlock,” and the state
would be able to retry the defendant.
      4We  note, without deciding, that if the improper lesser had
been requested by the defendant rather than the state, it would
likely constitute invited error, and the conviction would not be
reversed. See State v. Logan, 200 Ariz. 564, ¶ 9, 30 P.3d 631, 632-33
(2001) (“[W]e will not find reversible error when the party
complaining of it invited the error.”).

                                    6
                       STATE v. ESPINOZA
                       Opinion of the Court
“manifest necessity” for jeopardy to continue, Washington, 434 U.S.
at 505, jeopardy terminated as to the aggravated robbery charge, and
Espinoza cannot be retried for that offense. See Green, 355 U.S. at
191.5

¶15           Our analysis is not altered by the fact that theft of a
means of transportation was incorrectly identified as a lesser-
included offense of aggravated robbery. In Green, the defendant was
tried for first-degree felony murder and convicted of second-degree
murder. 355 U.S. at 185-86. There, the government contended that,
because second-degree murder was not a proper lesser-included
offense of felony murder, the defendant had not been impliedly
acquitted of the greater charge. Id. at 194 n.14. The Court disagreed
and stated, “It is immaterial [to the double jeopardy analysis]
whether second degree murder is a lesser offense included in a
charge of felony murder or not.” Id. A similar conclusion has been
reached by several circuit courts in analogous situations. See, e.g.,
Livingston v. Murdaugh, 183 F.3d 300, 301-02 (4th Cir. 1999) (where
jury was erroneously instructed it could convict defendant of either
reckless homicide or felony DUI, and jury convicted on felony DUI
but remained silent as to reckless homicide, defendant could not be
retried for reckless homicide); Adams v. Murphy, 653 F.2d 224, 225
(5th Cir. 1981) (defendant charged with perjury and convicted of
attempted perjury could not be retried for perjury after conviction
vacated because crime of attempted perjury does not exist).

¶16         In sum, the state has not met its burden of
demonstrating that the jury was truly deadlocked. In the absence of
that showing, the state has not demonstrated that a manifest
necessity existed for continuing Espinoza’s jeopardy as to the
aggravated robbery charge beyond the first trial.

      5 In Lemke, while considering a related issue, we assumed
arguendo that a jury’s conviction on a lesser-included offense
continued to bar retrial for the greater offense, notwithstanding the
LeBlanc rule change. Lemke, 213 Ariz. 232, ¶ 15, 141 P.3d at 413. We
then observed that “[a] contrary holding would raise significant
questions regarding whether a defendant convicted of a lesser-
included offense in Arizona under the LeBlanc instruction is
constitutionally protected from retrial on the greater offense.” Id.
                                 7
                     STATE v. ESPINOZA
                     Opinion of the Court
                         Disposition

¶17         For the foregoing reasons, the trial court’s order
granting Espinoza’s motion to dismiss is affirmed.




                              8
