Appeal from the Superior Court in Pima County No. CR20102204002 The Honorable Richard D. Nichols, Judge
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.
Judge Eckerstrom authored the opinion of the Court, in which Presiding Judge Kelly and Judge Espinosa concurred.
¶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).
¶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). 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. ...