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State v. Cope

Court of Appeals of Arizona, First Division

December 30, 2016

STATE OF ARIZONA, Appellee,
v.
JULIE LYNN COPE, Appellant.

          Appeal from the Superior Court in Maricopa County No. CR2012-153989-001 The Honorable Pamela Hearn Svoboda, Judge

         AFFIRMED IN PART; VACATED IN PART

          Arizona Attorney General's Office, Phoenix By Eric Knobloch Counsel for Appellee

          Michael J. Dew, Attorney at Law, Phoenix By Michael J. Dew Counsel for Appellant

          Judge Patricia A.Orozco delivered the opinion of the Court, in which Presiding Judge Andrew W. Gould and Judge Peter B. Swann joined.

          OPINION

          OROZCO, Judge:

         ¶1Julie Lynn Cope appeals her convictions and sentences for shoplifting under Arizona Revised Statutes (A.R.S.) section 13-1805.A.1 (West 2016)[1] and for organized retail theft under both A.R.S. §§ 13-1819.A.1 and -A.2. Because we conclude that Cope's shoplifting conviction was a lesser-included offense of her conviction for organized retail theft pursuant to A.R.S. § 13-1819.A2, we vacate Cope's shoplifting conviction. However, because we conclude that Cope's convictions for organized retail theft under A.R.S. §§ 13-1819.A.1 and -A.2 do not violate double jeopardy, we affirm her convictions and sentences on both charges.

         FACTS AND PROCEDURAL HISTORY

         ¶2The State filed a direct complaint against Cope, charging her with the following offenses: Count 1, Shoplifting, in violation of A.R.S. § 13-1805.A1; Count 2, Organized Retail Theft, in violation of A.R.S. § 13-1819.A.1; and Count 3, Organized Retail Theft, in violation of A.R.S. § 13-1819.A.2. After a trial conducted in absentia, a jury convicted Cope on all three counts. The jury also found aggravating factors on each count, and after Cope was taken into custody, the court sentenced her to nine-and-a-half years' incarceration on each conviction, to be served concurrently.

         ¶3Cope timely appealed. We have jurisdiction pursuant to Article 6, Section 9, of the Arizona Constitution, and A.R.S. §§ 12-120.21.A.1, 13-4031, and -4033.A.1.

         DISCUSSION

         I. Lesser-Included Offense

         ¶4Cope contends her shoplifting conviction under A.R.S. § 13- 1805.A.1 should be vacated, because it is a lesser-included offense of her conviction for organized retail theft pursuant to § 13-1819.A.2.

         ¶5Statutory interpretation is a question of law we review de novo. State v. Gonzalez,216 Ariz. 11, 12, ¶ 2 (App. 2007) (citing State v. Johnson,195 Ariz. 553, 554, ¶ 3 (App. 1999)). Double jeopardy protects a defendant from multiple punishments arising from the same offense. State v. Garcia,235 Ariz. 627, 629, ¶ 5 (App. 2014); see U.S. Const. amend. V; Ariz. Const. art. 2, § 10. "Because greater and lesser-included offenses are considered the 'same offense, ' the Double Jeopardy Clauses forbid the imposition of a separate punishment for a lesser offense [, ] when a defendant has been convicted and sentenced for the greater offense." Id. "To constitute a lesser-included offense, the crime must be 'composed solely of some[, ] but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser ...


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