from the Superior Court in Mohave County No. L8015CV201507173
The Honorable Lee F. Jantzen, Judge
Havasu City Attorney's Office, Lake Havasu City By
Charles F. Yager Counsel for Petitioner/Appellant
Whitney & Whitney PLLC, Kingman By Jacob W. Baldridge
Counsel for Real Party in Interest/Appellee
City Attorney's Office, Peoria By Michael L. Dynes
Counsel for Amicus Curiae City of Peoria
Michael J. Brown delivered the opinion of the Court, in which
Presiding Judge Diane M. Johnsen and Judge Jon W. Thompson
We address here whether a defendant charged with misdemeanor
theft of services is entitled to a jury trial under the
Arizona Constitution. Under our criminal code, theft is a
unified offense and a defendant's eligibility for a jury
trial must therefore be analyzed within that context. Because
at least one of the varieties of theft has a common-law
antecedent, we hold that a defendant charged with misdemeanor
theft has the right to have his or her guilt determined by a
The State charged Deliana Kroll with theft, a class one
misdemeanor, alleging she failed to pay the fare for a
shuttle ride she took in Lake Havasu City. She was also
charged with disorderly conduct for cursing and other
offensive conduct directed toward the driver. The State filed
a motion requesting a bench trial, asserting in part that
Arizona's "misdemeanor theft statute has never had a
common law antecedent and shares no substantially similar
elements to common law larceny." Kroll disagreed,
pointing to case law recognizing larceny as the antecedent of
shoplifting, and suggesting the jury eligibility question
must be determined by recognizing theft as a single offense
that may be committed in a number of ways. The Lake Havasu
City Municipal Court denied the State's motion,
concluding that "[historically[, ] theft charges have
been [j]ury [t]rial eligible."
The State filed a petition for special action in superior
court challenging the municipal court's ruling. The
superior court accepted jurisdiction but denied relief,
reasoning in part that although the State had raised
"credible arguments regarding why the specific theft in
this case does not fit the common law definition of larceny .
. . the bottom line . . . is that the State of Arizona has
always allowed for jury trials for theft .... Misdemeanor
theft requires a jury trial." The State then filed a
notice of appeal.
Although neither party questions this court's
jurisdiction relating to the State's challenge of the
superior court's ruling, we have an independent duty to
determine our jurisdiction to consider an appeal.
Sorensen v. Farmers Ins. Co. of Ariz., 191 Ariz.
464, 465 (App. 1997). The State asserts that appellate
jurisdiction exists pursuant to Arizona Rule of Procedure for
Special Actions 8(a). This procedural rule alone, however,
does not provide a statutory basis for jurisdiction, and it
is unclear whether we have appellate jurisdiction over a
superior court order denying special action relief. See
State v. Bayardi, 230 Ariz. 195, 197 n.4, ¶ 7 (App.
Without deciding whether we have appellate jurisdiction, we
may nonetheless consider the State's challenge if we
elect to exercise special action jurisdiction. See
Ariz. R.P. Spec. Act. 8(a). The State appears to have no
"equally plain, speedy, or adequate remedy by appeal,
" and the issue raised is one of first impression with
statewide importance. See Sanchez v. Gama, 233 Ariz.
125, 127, ¶ 4 (App. 2013) ...