concluding that had the legislature desired to include mens rea of intentionally in portion of statute at issue it would have used “precise language defined by statute”
How later courts described this case
- concluding that had the legislature desired to include mens rea of intentionally in portion of statute at issue it would have used “precise language defined by statute”
- finding former shoplifting statute included aggravated form of offense containing additional elements which had to be proven to jury
- holding the “facilitation portion of § 13-1805(I) creates a greater offense to the lesser offense of shoplifting”
- state must prove as additional elements of offense that person entered store “with something he or she intended to [use to] facilitate the shoplifting” to establish person committed felony-facilitated shoplifting under § 13-1805(1)
Written by the judges who cited it.
The opinion
HOWARD, Judge,
specially concurring.
¶ 27 Concerning the resolution of the issue involving Rule 8.2, Ariz. R.Crim. P., 16A A.R.S., because Brown did not raise the issue below, it is waived. See State v. Swensrud, 168 Ariz. 21, 22 , 810 P.2d 1028, 1029 (1991). Accordingly, I would go no further in deciding that issue.
¶28 In determining whether facilitated shoplifting under A.R.S. § 13-1805(1) is a greater offense with additional elements than ordinary shoplifting, I believe the majority gives undue emphasis to the inclusion of the word “intended.” The words “that was intended to facilitate shoplifting” are merely an adjective clause which modifies the list of articles rather than a definition of a particular mental state requirement for facilitated shoplifting. In fact, “intended to” is not one *412 of the phrases defined in A.R.S. § 13-015(9), the criminal code section defining various mental states. Had the legislature desired the facilitation portion of § 13-1805(1) to include a mens rea of intentionally, it most likely would have utilized precise language defined by statute. Accordingly, the result would be the same if the statute simply read, “in the course of shoplifting entered the mercantile establishment with an artifice, instrument, container, device or other article to be used to facilitate shoplifting.”
¶29 I would hold that a person commits the additional element required for facilitated shoplifting by committing the described act: “in the course of shoplifting entering] the mercantile establishment with an artifice, instrument, container, device or other article that was intended to facilitate shoplifting.” I agree with the remaining analysis of the opinion.