from the Superior Court in Cochise County Nos.
S0200CR201500022, S0200CR201500023, and S0200CR201500157
(Consolidated) The Honorable James L. Conlogue, Judge The
Honorable Wallace R. Hoggatt, Judge.
Brnovich, Arizona Attorney General Joseph T. Maziarz, Chief
Counsel By Diane Leigh Hunt, Assistant Attorney General,
Tucson Counsel for Appellee.
Harriette P. Levitt, Tucson Counsel for Appellant.
Presiding Judge Vásquez authored the opinion of the
Court, in which Judge Espinosa and Judge Eppich concurred.
VÁSQUEZ, PRESIDING JUDGE.
Following a jury trial in three consolidated cases, appellant
Bobby Carter Jr. was convicted of one count of aggravated
assault, four counts of burglary, three counts of theft, two
counts of theft of a means of transportation, one count of
robbery, and one count of criminal damage. The trial court
found Carter had two or more historical prior felony
convictions and sentenced him, as a category three repetitive
offender, to a combination of concurrent and consecutive
presumptive prison terms of 60.75 years. Counsel filed a
brief in compliance with Anders v. California, 386
U.S. 738 (1967), and State v. Clark, 196 Ariz. 530
(App. 1999), stating she had reviewed the record and found no
arguable question of law to raise on appeal. Consistent with
Clark, she provided "a detailed factual and
procedural history of the case with citations to the
record," 196 Ariz. 530, ¶ 32, and she asked this
court to search the record for error. Carter did not file a
In the course of our review, we identified arguable issues,
raised by Carter at sentencing, implicating double-jeopardy
principles. Because we could not say the arguments were
"wholly frivolous," Penson v. Ohio, 488
U.S. 75, 84 (1988), we asked the parties for further briefing
on the issue of whether Carter received multiple punishments,
in violation of the constitutional protections against double
jeopardy, as a result of his convictions for five of the
counts. For the reasons that follow, we affirm in part and
vacate in part the convictions and sentences.
and Procedural Background
We view the facts in the light most favorable to affirming
the jury's verdicts. State v. Veloz, 236 Ariz.
532, ¶ 2 (App. 2015). On January 10, 2015, Carter
engaged in a crime spree that included carjacking a sport
utility vehicle (SUV) belonging to C.L., burglarizing a home
and barn owned by J.S. and R.S. and stealing some of their
property, and taking a tractor belonging to
With respect to the SUV carjacking, C.L. was sitting in the
vehicle's passenger seat in a store's parking lot,
waiting for her husband, when Carter entered the driver's
side door, told C.L. to get out, and quickly drove away,
causing C.L. to fall out of the vehicle and break her leg.
Carter subsequently crashed the SUV, valued at $18, 000,
causing its total loss.
Sometime after Carter crashed the SUV, United States Border
Patrol agents assisting in the investigation found him
sitting on E.A.'s tractor, valued at more than $25, 000.
Carter made eye contact with one of the agents and drove
away. The agent followed with his emergency lights activated,
and Carter eventually stopped in the middle of a field where
he was taken into custody.
That day, J.S. and R.S. had been in the mountains but
returned between 4 and 5 p.m. to find both their home and
barn had been burglarized. When Carter was arrested, he had
nine pieces of jewelry belonging to J.S. in his pocket, and
power tools taken from R.S.'s shed were found in the
wreckage of the SUV.
For the crimes committed against C.L., Carter was charged
with and convicted of aggravated assault, burglary, criminal
damage, theft of property valued at more than $4, 000 but
less than $25, 000, vehicle theft, and robbery. For the
crimes committed against E.A., Carter was charged with and
convicted of burglary, vehicle theft, and theft of property
valued at more than $25, 000. For the crimes committed
against J.S. and R.S., Carter was charged with and convicted
of two counts of burglary and theft of property having a
value of more than $1, 000.
We conclude the evidence was sufficient to support the
jury's verdicts. See A.R.S. §§
13-1203(A)(1), 13-1204(A)(1), 13-1501, 13-1506(A)(1),
13-1507(A), 13-1601, 13-1602(A)(1), (B)(1), 13-1801,
13-1802(A)(1), 13-1814(A)(1), 13-1901, 13-1902(A). We
nonetheless must consider whether some of Carter's
convictions constituted multiple punishments for a single
offense, in violation of the Double Jeopardy Clause, as he
argued at sentencing.
"The Double Jeopardy Clauses in the United States and
Arizona Constitutions prohibit: (1) a second prosecution for
the same offense after acquittal; (2) a second prosecution
for the same offense after conviction; and (3) multiple
punishments for the same offense." Lemke v.
Rayes, 213 Ariz. 232, ¶ 10 (App. 2006) (footnote
omitted); see U.S. Const. amend. V; Ariz. Const.
art. II, § 10. The first two of these prohibitions lie
"at the core of the Clause's protections,"
Tibbs v. Florida, 457 U.S. 31, 41-42 (1982), and
"ensure that the State does not make repeated attempts
to convict an individual, thereby exposing him to continued
embarrassment, anxiety, and expense, while increasing the
risk of an erroneous conviction or an impermissibly enhanced
sentence," Ohio v. Johnson, 467 U.S. 493,
We are concerned here, however, with the third protection of
multiple punishments imposed after a single trial. "In
contrast to the double jeopardy protection against multiple
trials," this protection "is designed to ensure
that" a defendant's convictions and sentences are
"confined to the limits established by the
legislature." Id. at 499. Thus, "the
question under the Double Jeopardy Clause whether punishments
are 'multiple' is essentially one of legislative
intent." Id.; see also Missouri v. Hunter, 459
U.S. 359, 366-68 (1983) (for "cumulative sentences
imposed in a single trial, the Double Jeopardy Clause does no
more than prevent the . . . court from prescribing greater
punishment than the legislature intended"); State v.
Siddle, 202 Ariz. 512, ¶ 9 (App. 2002)
Thus, to determine the constitutionality of multiple
convictions and sentences after a single trial, for offenses
arising from the same criminal transaction, the dispositive
question is whether the legislature "intended to
authorize separate punishments" for the separate
statutory violations. Albernaz v. United States, 450
U.S. 333, 344 (1981). "The intent of the legislature in
defining and fixing the punishment for an offense is a
question of law we review de novo." State v.
McPherson, 228 Ariz. 557, ¶ 5 (App. 2012).
In determining whether multiple punishments are authorized
after a single trial, courts assume a legislature
"ordinarily does not intend to punish the same offense
under two different statutes." Whalen v. United
States, 445 U.S. 684, 692 (1980). "Accordingly,
where two statutory provisions proscribe the 'same
offense,' they are construed not to authorize cumulative
punishments in the absence of a clear indication of contrary
legislative intent." Id. And to determine
whether convictions pursuant to different statutes constitute
the "same offense," courts apply the rule of
construction found in Blockburger v. United States:
"[W]here the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to
be applied to determine whether there are two offenses or
only one, is whether each provision requires proof of a fact
which the other does not." 284 U.S. 299, 304 (1932). For
example, "a defendant may not be convicted for both an
offense and its lesser included offense, because they are
considered the 'same offense' for double jeopardy
purposes." State v. Ortega, 220 Ariz. 320,
¶ 9 (App. 2008) (quoting Lemke, 213 Ariz. 232,
But, in the context of multiple punishments imposed after a
single trial, the Supreme Court has cautioned, "The
Blockburger test is a 'rule of statutory
construction,' and because it serves as a means of
discerning [legislative] purpose the rule should not be
controlling where, for example, there is a clear indication
of contrary legislative intent." Albernaz, 450
U.S. at 340. Thus,
Where . . . a legislature specifically authorizes cumulative
punishment under two statutes, regardless of whether those
two statutes proscribe the "same" conduct under
Blockburger, a court's task of statutory
construction is at an end and the prosecutor may seek and the
trial court or jury may impose cumulative punishment under
such statutes in a single trial.
Hunter, 459 U.S. at 368-69.
Similarly, where the Blockburger test suggests
cumulative punishment is permissible, because each statutory
provision at issue "requires proof of a fact which the
other does not," 284 U.S. at 304, that presumption
should not control where, for example, "the legislative
history . . . discloses an intent contrary to the
presumption," Albernaz, 450 U.S. at 340-42
(silent legislative history insufficient to override
As he did at sentencing, Carter relies on State v.
Garcia,235 Ariz. 627 (App. 2014), to argue his three
convictions involving the SUV and his two convictions
relating to the tractor constituted double jeopardy. In
Garcia, another panel of this court concluded that
vehicle theft is a lesser-included offense of armed robbery
and, accordingly, that the defendant could not be ...