                                IN THE
              ARIZONA COURT OF APPEALS
                             DIVISION ONE


               EDWARD BOSWORTH, Petitioner/Appellee,

                                     v.

  THE HONORABLE GEORGE T. ANAGNOST, Judge of the PEORIA
  MUNICIPAL COURT OF THE STATE OF ARIZONA, in and for the
              County of MARICOPA, Defendant,

STATE OF ARIZONA ex rel. STEPHEN M. KEMP, Peoria City Attorney,
               Real Party in Interest/Appellant.

                          No. 1 CA-CV 13-0326
                           FILED 04/24/2014


          Appeal from the Superior Court in Maricopa County
                       No. LC2012-000703-001
              The Honorable Edward W. Bassett, Judge

                              AFFIRMED


                               COUNSEL

Peoria City Attorney’s Office, Peoria
By Stephen M. Kemp, Anh Spiek, and Yvonne W. Vieau
Counsel for Real Party in Interest/Appellant

Bain & Lauritano, P.L.C., Glendale
By Sheri Lauritano
Counsel for Petitioner/Appellee
               BOSWORTH v. HON. ANAGNOST/STATE
                      Opinion of the Court



                                 OPINION

Judge Lawrence F. Winthrop delivered the opinion of the Court, in which
Presiding Judge Patricia A. Orozco and Judge Diane M. Johnsen joined.


W I N T H R O P, Judge:

¶1            For the following reasons, we affirm the decision of the
superior court ordering a jury trial for Edward Bosworth (“Defendant”),
because an individual charged with misdemeanor shoplifting by removal,
pursuant to Arizona Revised Statutes (“A.R.S.”) section 13-1805(A)(1)
(West 2014), has a constitutional right upon request to a trial by jury.

                 FACTS AND PROCEDURAL HISTORY

¶2           Defendant is charged with one count of shoplifting by
removal under A.R.S. § 13-1805(A)(1) (West 2014). 1 The Peoria Municipal
Court denied Defendant’s request for a trial by jury pursuant to the
Arizona and United States Constitutions. Defendant then filed a petition
for special action review in Maricopa County Superior Court. The
superior court accepted jurisdiction, vacated the municipal court ruling,
and ordered the municipal court to set the matter for a trial by jury. The
State filed a timely notice of appeal. We have appellate jurisdiction
pursuant to Rule 8(a) of the Arizona Rules of Procedure for Special
Actions.

                                 ANALYSIS

¶3            The State argues that misdemeanor shoplifting is not a crime
for which a defendant has a constitutional right to a trial by jury.
“Whether a defendant is entitled to a jury trial . . . is a question of law and
is reviewed de novo.” Stoudamire v. Simon, 213 Ariz. 296, 297, ¶ 3, 141
P.3d 776, 777 (App. 2006) (citation omitted).



1      We cite the current Westlaw version of the applicable statutes,
rules, and constitutional provisions because no revisions material to this
decision have since occurred.




                                      2
                BOSWORTH v. HON. ANAGNOST/STATE
                       Opinion of the Court

¶4             The Arizona Supreme Court has delineated an offense-
specific “two step process” to determine whether the Arizona
Constitution preserved a defendant’s right to a trial by jury. See Derendal
v. Griffith, 209 Ariz. 416, 425, ¶¶ 36-37, 104 P.3d 147, 156 (2005); see also
Ariz. Const. art. 2, § 23; Ariz. Const. art. 2, § 24. 2 Under the first prong of
the Derendal test, a defendant has a constitutional right to trial by jury if “a
statutory offense has a common law antecedent that guaranteed a right to
trial by jury at the time of Arizona statehood.” Derendal, 209 Ariz. at 425,
¶ 36, 104 P.3d at 156 (citing Ariz. Const. art. 2, § 23). If the charged offense
has a common law antecedent for which a jury trial right existed, the
inquiry ends and “the defendant’s right to a trial by jury is established.”
Id. If this first prong is not satisfied, under the second prong “the court
must analyze the seriousness of the offense under Article 2, Section 24.”
Id. at ¶ 37.

¶5            In Sulavka v. State, this court examined misdemeanor
shoplifting by concealment under the first prong of the Derendal test, and
determined “the common law crime of larceny is an antecedent of
shoplifting by concealment” because the elements of each crime are
“sufficiently comparable.” 223 Ariz. 208, 212, ¶¶ 13-18, 221 P.3d 1022,
1026 (App. 2009); see also State v. Superior Court (“Espinosa”), 121 Ariz. 174,
176, 589 P.2d 48, 50 (App. 1978) (“[T]he crime [of shoplifting] bears a close
relationship to a common law crime.”). The Sulavka court did not consider
the State’s argument that shoplifting historically was established by
statute rather than common law, because that issue was not properly
presented on appeal. See Sulavka, 223 Ariz. at 211 n.2, ¶ 13, 221 P.3d at
1025 n.2 (“We decline to address the State’s contention, mentioned in
passing for the first time in its reply brief, that because English Parliament
passed a shoplifting statute in 1698, larceny is not a common law
antecedent to shoplifting.”). The State has properly raised that issue in
this appeal.

¶6           The State argues the Arizona Constitution did not preserve a
right to trial by jury for defendants charged with misdemeanor

2       We decline the State’s implied invitation to reconsider the Derendal
test as applied to petty crimes. See State v. Smyers, 207 Ariz. 314, 318 n.4,
¶ 15, 86 P.3d 370, 374 n.4 (2004) (“The courts of this state are bound by the
decisions of [the Arizona Supreme Court] and do not have the authority to
modify or disregard [that] court’s rulings.”).




                                       3
               BOSWORTH v. HON. ANAGNOST/STATE
                      Opinion of the Court

shoplifting, because “the source for the crime of shoplifting at the time of
Arizona statehood was not the common law but rather a 17th Century
English Parliamentary statute.” See 10 Will. 3, c. 12 (“An Act for the better
apprehending prosecuting and punishing of Felons that commit Burglary
Housebreaking or Robbery in Shops Ware-houses Coach-houses or
Stables or that steal Horses”). In support of this contention, the State relies
on the Oxford English Dictionary (2d ed. 1989) for the proposition that the
cited statute is the first use of the term “shoplifting,” suggesting
“shoplifting” was not an offense prior to the enactment of this statute.
The distinction between statutory and common law offenses is critical to
this analysis because the right to a trial by jury does not depend on
whether the conduct could be prosecuted as a crime prior to statehood,
but “whether a statutory offense is sufficiently linked to a common law
offense for which a jury trial was granted prior to statehood.” Sulavka, 223
Ariz. at 209, 221 P.3d at 1023. Cf. Phoenix City Prosecutor’s Office v.
Klausner, 211 Ariz. 177, ¶ 9, 179, 118 P.3d 1141, 1143 (App. 2005) (“The fact
that territorial courts granted jury trials in misdemeanor cases, in
compliance with territorial statutes, does not change our analysis.”).

¶7             The State’s contention, however, is at odds with other
historical evidence indicating that, both before and after enactment of the
1698 statute, defendants in seventeenth century London were accused of
shoplifting and afforded a trial by jury at Old Bailey Courthouse,
London’s criminal court. See, e.g., Old Bailey Proceedings, London Lives
1690-1800, t16870512-42 (May 1687) (“Mary Jones, was tryed for stealing
10 Yards of Lute-string, value 30 s. out of the shop of William Wolfe, at the
Royal-Exchange, on the 16th of April. . . . [T]he Jury found her Guilty of
the     Felony      to   the       value     of   9     s.”)    available  at
http://www.londonlives.org/browse.jsp?div=t16870512-42; Old Bailey
Proceedings, London Lives 1690-1800, t16921207-19 (Dec. 1692) (“Anne
Jenkins, and Elizabeth Green, were both tried for Shop-lifting, in stealing
18 Yards of Muslin, value 52 s. the Goods of William Peat. They came to
the Shop to cheapen some Goods, and one of them put the piece of Muslin
under her Coats, which she was seen to do, by the Maid of the House, and
being stopt, it so appear’d. . . . They both denied the Fact; yet were found
guilty             of              Felony.”)           available           at
http://www.londonlives.org/browse.jsp?div=t16921207-19; Old Bailey
Proceedings, London Lives 1690-1800, t17161105-38 (Nov. 1716) (“James
Reed alias Reeves, of St. Mary Whitechapel, was indicted for feloniously
stealing 5 Hats, value 18 s. out of the shop of Edmund Juby in the Day-
time, the 17th of Octob. last. The Prisoner was seen to come out of the
shop with the Hats, by one passing by; who, suspecting him, stopp’d him,
and carried him back to the Owner’s house with the Hats. The Prisoner in


                                      4
                BOSWORTH v. HON. ANAGNOST/STATE
                       Opinion of the Court

his Defence, said he found the Hats, but that did not avail him. The Jury
found      him       guilty     of     Shoplifting.”)      available   at
http://www.londonlives.org/browse.jsp?div=t17161105-38.

¶8           We therefore conclude that the crime of shoplifting existed
in the common law before statehood and defendants charged with that
crime were entitled to have their guilt determined by a jury.

¶9            In addition to its argument based on the 17th century statute
of the Parliament of England, the State also argues that shoplifting does
not have a common law antecedent, contending that the elements of
common law larceny are different from the elements of the present-day
shoplifting statute. 3 Under the first prong of the Derendal test, “the court
should consider whether substantially similar elements comprise the
common law offense and the offense charged.” Derendal, 209 Ariz. at 425,
¶ 36, 104 P.3d at 156.

¶10            In Sulavka, this court compared common law larceny to
shoplifting by concealment pursuant to A.R.S. § 13-1805(A)(5) and
determined the two offenses shared “substantially similar” elements. 223
Ariz. at 212, ¶ 15, 221 P.3d at 1026 (citation omitted). In this case, we are
comparing common law larceny to shoplifting by removal under A.R.S. §
13-1805(A)(1). Arizona defined common law larceny as “first, 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, second, an asportation
thereof.” Pass v. State, 34 Ariz. 9, 10, 267 P. 206 (1928); see also Sulavka, 223
Ariz. at 211, ¶ 14, 221 P.3d at 1025. 4 Pursuant to A.R.S. § 13-1805(A)(1),



3      The State notes “A.R.S. § 13-1805(A) defines multiple additional
ways that the crime of shoplifting can be committed that all differ from
larceny.” However, we will not consider the application of Derendal to
subsections of the misdemeanor shoplifting statute that are not before us
on this appeal. See Smith v. City of Phoenix, 175 Ariz. 509, 512, 858 P.2d 654,
657 (App. 1992) (“We will not determine constitutional issues unless they
are squarely presented in a justiciable controversy, or unless a decision is
absolutely necessary in order to determine the merits of the suit.”
(quotations and citations omitted)).

4      Alternatively, the State proposes that common law larceny means
the “felonious taking by trespass and carrying away by any person of the
goods or things personal to another from any place, without the latter’s



                                       5
               BOSWORTH v. HON. ANAGNOST/STATE
                      Opinion of the Court

      A person commits shoplifting if, while in an establishment in
      which merchandise is displayed for sale, the person
      knowingly obtains such goods of another with the intent to
      deprive that person of such goods by . . . [r]emoving any of
      the goods from the immediate display or from any other
      place within the establishment without paying the purchase
      price[.]

¶11            Comparing the common law definition of larceny with
misdemeanor shoplifting pursuant to A.R.S. § 13-1805(A)(1), we conclude
the two offenses have substantially similar elements. The offenses contain
the same two general elements: (1) a person’s unauthorized possession of
the property of another (2) by moving that property. Cf. Sulavka, 223 Ariz.
at 212, ¶¶ 15-17, 221 P.3d at 1026 (“[A]lthough the offense of shoplifting
by concealment contains some variations from common law larceny, they
are for this purpose, distinctions without legal significance.”); see also
Crowell v. Jejna, 215 Ariz. 534, 540, ¶ 22, 161 P.3d 577, 583 (App. 2007)
(“Nowhere does Derendal instruct that the elements of the modern-day
offense must be identical to a common-law antecedent.”). Therefore,
larceny is a common law antecedent to shoplifting pursuant to A.R.S. § 13-
1805(A)(1), and Article 2, Section 23 of the Arizona Constitution preserved
the right to a trial by jury for those charged with this criminal offense.
Because the first prong of the Derendal test is satisfied, our inquiry ends
without the need to address the second prong.




consent, and with the felonious intent to permanently deprive the owner
of his property and to convert it to the taker’s own use.” Without
accepting the State’s proposed definition, we disagree with the State’s
argument that the additional requirement of “taking by trespass” in that
definition leads to the conclusion that “common law larceny did not
address the situation of shoplifting, where the shop is open for business
and the offender enters lawfully.” The State relies on an unreasonably
narrow definition of trespass to reach this conclusion. Black’s Law
Dictionary defines “trespass” to include “[a]n unlawful act committed
against the person or property of another; esp., wrongful entry on
another’s real property.” Black’s Law Dictionary 1642 (West 9th ed. 2009).
Common law larceny with a “trespass” element, therefore, did not
necessarily require wrongful entry on another’s real property before the
carrying away of one’s property could occur.




                                    6
               BOSWORTH v. HON. ANAGNOST/STATE
                      Opinion of the Court

                             CONCLUSION

¶12             We affirm the superior court’s determination that Defendant
is entitled to a trial by jury on the subject shoplifting charge.




                               :gsh




                                      7
