State v. Andersen ( 2023 )

IN THE
ARIZONA COURT OF APPEALS
DIVISION ONE
STATE OF ARIZONA, Appellee,
v.
BROCK ALAN ANDERSEN, Appellant.
No. 1 CA-CR 22-0462
FILED 6-1-2023
Appeal from the Superior Court in Mohave County
No. S8015CR202200466
The Honorable Douglas Camacho, Judge Pro Tempore
AFFIRMED IN PART; VACATED IN PART
COUNSEL
Arizona Attorney General’s Office, Phoenix
By Eric Knobloch
Counsel for Appellee
Janelle A. McEachern Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant
OPINION
Presiding Judge Maria Elena Cruz delivered the opinion of the Court, in
which Judge James B. Morse Jr. and Judge Daniel J. Kiley joined.
STATE v. ANDERSEN
Opinion of the Court
C R U Z, Judge:
¶1 Brock Alan Andersen appeals his conviction and sentence for
one count of shoplifting third offense and one count of theft. For the
following reasons, we affirm Andersen’s conviction and sentence for
shoplifting third offense, merge his conviction for theft into that count, and
vacate his sentence for theft.
FACTUAL AND PROCEDURAL HISTORY
¶2 One early morning in June 2021, several Safeway grocery
store employees were taking a break outside of the store, which was closed,
when they observed Andersen load two cases of bottled water into a
shopping cart. The cases had been displayed for sale on a pallet in front of
the store. Andersen left the store parking lot with the cart and water. One
of the employees yelled at Andersen to put the water back, and Andersen
shouted that he had a gun. The employees told Andersen they were calling
the police, and he took off running with the cart. Police arrived shortly
thereafter and located Andersen in the vicinity. Andersen admitted taking
the cases of water from Safeway but denied having told the store employees
he had a gun. He told police he had placed the cases of water in a culvert
and police recovered the water there.
¶3 Andersen was charged by indictment with one count of
robbery, a class 4 felony (count 1), and one count of shoplifting third
offense, a class 4 felony (count 2).
¶4 At trial, Andersen moved for directed verdicts of acquittal,
which the superior court denied. Andersen testified that he took the cases
of water from the store without paying for them and admitted having been
convicted of three counts of shoplifting in 2021. He denied telling the
employees he had a gun. Among other instructions, the superior court
instructed the jury on the lesser-included offense of theft.
¶5 The jury convicted Andersen of the lesser-included offense of
theft (count 1) and shoplifting third offense (count 2). The superior court
sentenced Andersen to concurrent sentences of six months in prison, with
credit for six months of presentence incarceration for count 1, and 1.5 years
in prison for count 2, with credit for 384 days of presentence incarceration.
Andersen timely appealed, and we have jurisdiction pursuant to Arizona
Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031, and -4033(A).
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STATE v. ANDERSEN
Opinion of the Court
DISCUSSION
I. Rule 20 Motion
¶6 Andersen argues his conviction for shoplifting third offense
should be vacated because the superior court erred by denying his Rule 20
motion. See Ariz. R. Crim. P. 20(a)(1) (“After the close of evidence on either
side, and on motion or on its own, the court must enter a judgment of
acquittal on any offense charged in an indictment, information, or
complaint if there is no substantial evidence to support a conviction.”).
According to Andersen, the shoplifting charge failed because there was no
evidence that the water was displayed for sale or that he was “in an
establishment” when he took the water. See A.R.S. § 13-1805(A).
¶7 We review the denial of a Rule 20 motion de novo. State v.
West, 226 Ariz. 559, 562, ¶ 15 (2011). Substantial evidence is “proof that
reasonable persons could accept as adequate and sufficient to support a
conclusion of defendant’s guilt beyond a reasonable doubt.” Id. at ¶ 16
(citation and internal quotation marks omitted). “When reasonable minds
may differ on inferences drawn from the facts, the case must be submitted
to the jury, and the trial judge has no discretion to enter a judgment of
acquittal.” State v. Lee, 189 Ariz. 590, 603 (1997). We view the facts in the
light most favorable to sustaining the verdicts and resolve all conflicts in
the evidence against the defendant. State v. Payne, 233 Ariz. 484, 509, ¶ 93
(2013); State v. Bustamante, 229 Ariz. 256, 258, ¶ 5 (App. 2012). “[I]n
reviewing the sufficiency of the evidence, we do not distinguish
circumstantial from direct evidence.” State v. Borquez, 232 Ariz. 484, 487,
¶ 11 (App. 2013).
¶8 As relevant here, a defendant “commits shoplifting if, while
in an establishment in which merchandise is displayed for sale,” the
defendant “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.” A.R.S. § 13-1805(A)(1). Although the
statute does not define “establishment,” in this context it means a “place of
business.” See Black’s Law Dictionary (11th ed. 2019) (“An institution or
place of business”); Black’s Law Dictionary (4th ed. 1951) (“Institution,
place where conducted and equipment; . . . place of business and fixtures”);
see also State ex rel. Brnovich v. Ariz. Bd. of Regents, 250 Ariz. 127, 131-32, ¶ 15
(2020) (approving use of Black’s Law Dictionary to interpret statutory
terms). An “establishment,” in other words, need not be a physically
enclosed structure.
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STATE v. ANDERSEN
Opinion of the Court
¶9 Substantial evidence supports the jury’s verdict. Although
Andersen did not remove merchandise from inside a building, the evidence
showed he took merchandise displayed for sale from a place of business
without paying for it. Viewing the evidence in the light most favorable to
sustaining the verdicts, a rational trier of fact could find that Andersen
committed shoplifting third offense. Because substantial evidence
reasonably supported a conclusion that Andersen committed shoplifting,
the superior court properly denied Andersen’s Rule 20 motion.
II. Double Jeopardy
¶10 Andersen next argues his theft and shoplifting convictions
violate the Double Jeopardy clauses of the United States and Arizona
constitutions because theft under A.R.S. § 13-1802(A)(1) is a lesser-included
offense of shoplifting under A.R.S. § 13-1805(A)(1). See U.S. Const. amend
V; Ariz. Const. art. 2, § 10. As Andersen acknowledges, because he did not
ask the superior court to vacate his conviction for theft for this reason, we
review for fundamental error. See State v. Henderson, 210 Ariz. 561, 567, ¶ 19
(2005). A double jeopardy violation constitutes fundamental error. State v.
Price, 218 Ariz. 311, 313, ¶ 4 (App. 2008). Whether Andersen’s convictions
violate the Double Jeopardy Clause is a question of law, which we review
de novo. State v. Carter, 249 Ariz. 312, 315, ¶ 7 (2020).
¶11 “To determine whether two distinct offenses charged under
different statutes constitute the same offense, we apply Blockburger’s same-
elements test, i.e. ‘whether each provision requires proof of a fact which the
other does not.’” Id. at 315, ¶ 9 (quoting Blockburger v. United States, 284 U.S.
299, 304 (1932)). “[W]e look to the elements of the offenses and not to the
particular facts that will be used to prove them.” State v. Ortega, 220 Ariz.
320, 324, ¶ 9 (App. 2008). “An offense is lesser included when the greater
offense cannot be committed without necessarily committing the lesser
offense.” Carter, 249 Ariz. at 316, ¶ 10 (citation and internal quotation marks
omitted). “[L]esser-included offense is a label courts use to help convey the
outcome of Blockburger’s same-elements test.” Id. at 319, ¶ 26 (citation and
internal quotation marks omitted). Under the Blockburger test, “it is the
elements, not the penalty, that matter. Therefore, a lesser-included offense
may have a more severe penalty.” Id. at 320, ¶ 26. A defendant’s double
jeopardy rights can be violated even when the two sentences are
concurrent, as they are in this case. See State v. Brown, 217 Ariz. 617, 621,
¶ 13 (App. 2008).
¶12 The State concedes, and we agree, that theft by control under
§ 13-1802(A)(1) is a lesser-included offense of shoplifting under § 13-
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STATE v. ANDERSEN
Opinion of the Court
1805(A)(1). Sections 13-1802 and -1805 are found in chapter 18 of the
criminal code, which generally addresses theft offenses. See A.R.S. §§ 13-
1801 to -1820. As relevant here, a person commits shoplifting under § 13-
1805(A)(1)
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[.]
Under § 13-1802(A)(1), a person commits theft by control “if, without lawful
authority, the person knowingly . . . [c]ontrols property of another with the
intent to deprive the other person of such property[.]” “’Control’ . . . means
to act so as to exclude others from using their property . . . .” A.R.S. § 13-
1801(A)(2).
¶13 Shoplifting under § 13-1805(A)(1) requires a theft of goods
with the additional requirement that the goods be “obtained” from the
establishment that sells those goods. “’Obtain’ means to bring about or to
receive the transfer of any interest in property . . . .” A.R.S. § 13-1801(A)(10).
Both offenses require the same mental states of acting “knowingly” and
“with the intent to deprive that person of such” goods or property. A.R.S.
§§ 13-1802(A)(1), -1805(A)(1). Because each element of theft is required to
prove shoplifting, theft under § 13-1802(A)(1) is a lesser-included offense of
shoplifting under § 13-1805(A)(1). Accordingly, we merge the two
convictions and modify the judgment to reflect a single conviction and
sentence for shoplifting third offense. See Merlina v. Jejna, 208 Ariz. 1, 4, ¶ 14
n.4 (App. 2004).
CONCLUSION
¶14 For the foregoing reasons, we affirm Andersen’s conviction
and sentence for shoplifting third offense, merge his conviction for theft by
control into that count, and vacate his sentence for theft by control.
AMY M. WOOD • Clerk of the Court
FILED: AA
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