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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

                                        v.

                       ROBERT T. GRAVES, Appellant.

                             No. 1 CA-CR 17-0751
                               FILED 2-28-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-460694-001
                The Honorable Jeffrey A. Rueter, Judge

                      VACATED AND REMANDED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

Maricopa County Public Defender’s Office, Phoenix
By Joel M. Glynn
Counsel for Appellant
                            STATE v. GRAVES
                           Decision of the Court



                      MEMORANDUM DECISION

Judge Maria Elena Cruz delivered the decision of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Randall M. Howe joined.


C R U Z, Judge:

¶1            Robert Terrell Graves appeals his two convictions and
sentences for organized retail theft. Graves argues the superior court erred
by denying his request to instruct the jury that it could convict him of
shoplifting. For the following reasons, we vacate his convictions and
sentences and remand.

                  FACTS1 AND PROCEDURAL HISTORY

¶2            While in a department store, Graves took several items from
the shelves and placed them in empty shopping bags he had taken from an
unmanned cash register. Without paying for the items, he pushed his
shopping cart beyond all the checkout aisles, past the electronic security
sensors and the store greeter. A police officer stopped him before he exited
the store’s outer doors.2 Graves admitted to police he was going to sell the
property in exchange for drugs.

¶3          Graves was convicted of two counts of organized retail theft.
The superior court sentenced him to concurrent terms of 4.5 years’
imprisonment.

¶4            Graves was permitted to file an untimely appeal. We have
jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution and
Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and
-4033(A)(1).




1      We view the facts in the light most favorable to sustaining the
verdicts. State v. Payne, 233 Ariz. 484, 509, ¶ 93 (2013).

2       Graves was apprehended in the store’s vestibule after he exited the
first set of doors, but before he passed through a second exiting set of doors
that led into the rest of the mall.


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                           Decision of the Court

                               DISCUSSION

¶5            Before closing arguments, Graves requested the superior
court instruct the jury on shoplifting as a lesser-included offense. The court
denied his request, reasoning shoplifting was not a lesser-included offense
of organized retail theft. Graves argues the court’s failure to give the
instruction was reversible error. We review the denial of a requested
instruction on a lesser-included offense for abuse of discretion. State v.
Johnson, 212 Ariz. 425, 431, ¶ 15 (2006).

¶6            A defendant is entitled to an instruction on a lesser-included
offense when (1) the offense is in fact a lesser-included offense, and (2) the
jury could reasonably find the State had proved only the elements of the
lesser offense. State v. Wall, 212 Ariz. 1, 3, ¶ 14 (2006).

¶7            First, shoplifting under A.R.S. § 13-1805(A)(1) is a lesser-
included offense of organized retail theft. “An offense is lesser included
when the greater offense cannot be committed without necessarily
committing the lesser offense.” Wall, 212 Ariz. at 3, ¶ 14 (citation and
internal quotations omitted).

¶8            The shoplifting statute states, in relevant part:

       A person commits shoplifting if, while in an establishment in
       which merchandise is displayed for sale, the person
       knowingly obtains such goods . . . with the intent to deprive
       that person of such goods by:

       1. Removing any of the goods from the immediate display or
          from any other place within the establishment without
          paying the purchase price . . . .

A.R.S. § 13-1805(A)(1).

¶9            By contrast, according to the organized retail theft statute:

       A person commits organized retail theft if the person . . .

       1. Removes merchandise from a retail establishment without
          paying the purchase price with the intent to resell or trade
          the merchandise for money or for other value[, or]

       2. Uses an artifice [or] . . . container . . . to facilitate the
          removal of merchandise from a retail establishment
          without paying the purchase price.


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                               STATE v. GRAVES
                              Decision of the Court

A.R.S. § 13-1819(A)(1)-(2).

¶10          Comparing the elements of the two statutes, it is impossible
to commit organized retail theft without shoplifting. A defendant must first
remove an item from a location in the store with the intent to deprive before
removing it from the entire “retail establishment” with the intent to resell
or trade it.

¶11            The State argues the mens rea requirement that is expressly
stated in § 13-1819(A)(1) (intent to resell or trade the merchandise) is not
the same as the “intent to deprive” required in § 13-1805(A)(1). Therefore,
according to the State, as a matter of law, shoplifting is not a lesser-included
offense of either subsection of organized retail theft. However, one cannot
intend to resell or trade another’s merchandise without first intending to
deprive that person of the merchandise. Consistent with this reasoning, in
State v. Cope we held that shoplifting is a lesser-included offense of
organized retail theft under A.R.S. § 13-1819(A)(2). 241 Ariz. 323, 325, ¶ 6
(App. 2016). Cope relied on State v. Veloz, 236 Ariz. 532 (App. 2015), in which
we concluded that A.R.S. § 13-1819(A)(2)—which does not, on its face,
contain a mens rea element—necessarily requires the State to prove the
defendant had an intent to deprive. Cope, 241 Ariz. at 325, ¶ 6; see Veloz, 236
Ariz. at 536, ¶¶ 10-11. We decline the State’s invitation to diverge from the
holdings in Cope and Veloz.

¶12            Here, a reasonable jury could find the State proved
shoplifting but not organized retail theft. Shoplifting occurs when someone
removes merchandise from a display or other place within the store. A.R.S.
§ 13-1805(A)(1). In contrast, both subsections of organized retail theft
require proof that the defendant removed the merchandise from the retail
establishment. A.R.S. § 13-1819(A)(1), (2). The evidence reasonably
supports a determination that Graves had not removed the merchandise
from the department store when he was stopped. While Graves had passed
all points of sale when he was stopped, a loss prevention officer testified
Graves was still inside the store. In fact, the area in which Graves was
stopped was a space that the store leased in a shopping mall to display its
products for sale. Despite the State’s characterization of the area as a
“common area” with entrances to other businesses in the mall, there was a
prominent sign bearing the name of the store in the area. Further, store
customers could gather shopping carts from that area. The second set of
doors, which Graves had not yet passed before he was detained, was part
of the store’s facade and contained the store’s signage. A reasonable jury
could have decided Graves had not removed the merchandise from the



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                           STATE v. GRAVES
                          Decision of the Court

retail establishment—making him guilty of shoplifting, not organized retail
theft. Graves was entitled to a jury instruction on shoplifting.

                              CONCLUSION

¶13        Accordingly, Graves’ convictions and sentences are vacated,
and we remand for proceedings consistent with this decision.




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




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