holding that to convict a defendant of an offense and its lesser-included offense is fundamental, prejudicial error because they are considered the same offense for purposes of double jeopardy
How later courts described this case
- holding that to convict a defendant of an offense and its lesser-included offense is fundamental, prejudicial error because they are considered the same offense for purposes of double jeopardy
- holding that whether witness’s testimony “was unreliable because it was inconsistent” was “an issue of credibility for the jury to resolve”
- defining elements of sexual conduct with minor as: “(1) intentionally or knowingly engaging in sexual intercourse or oral sexual contact . . . , (2) with a person who is less than eighteen years of age”
- recognizing “a defendant may not be convicted for both an offense and its lesser included offense”
Written by the judges who cited it.
The opinion
ESPINOSA, Judge,
specially concurring.
¶ 36 I concur in the results and reasoning of the majority except with respect to the lengthy and, in my view, unnecessary analysis of whether Ortega could be convicted on both counts four and five in this case. Because it is simply not possible for Ortega to have had sexual intercourse with the child, as charged in count five, without also having touched her vagina, as charged in count four, under well-established jurisprudence of our supreme and appellate courts, there is no question the latter was a lesser included offense of the former, for which Ortega could not be separately convicted. See State v. Cheramie, 218 Ariz. 447, ¶ 9 , 189 P.3d 374, 375 (2008) (“ ‘To constitute a lesser-included offense, the offense must be composed solely *331 of some but not all of the elements of the greater crime so that it is impossible to have committed the crime as charged without having committed the lesser one.’ ”), quoting State v. Celaya, 135 Ariz. 248, 251 , 660 P.2d 849, 852 (1983); State v. Wall, 212 Ariz. 1, ¶ 14 , 126 P.3d 148, 150 (2006) (“An offense is ‘lesser included’ when the ‘greater offense cannot be committed without necessarily committing the lesser offense.’”), quoting State v. Dugan, 125 Ariz. 194, 195 , 608 P.2d 771, 772 (1980); State v. Caudillo, 124 Ariz. 410, 412 , 604 P.2d 1121, 1122 (1979) (test to determine if offense is lesser included is whether the greater offense could not have been committed without necessarily committing the lesser); see also In re Jerry C., 214 Ariz. 270, ¶ 11 , 151 P.3d 553, 556-57 (as charged, child molestation was necessarily a lesser included offense of sexual conduct with a minor’); State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 12 , 965 P.2d 94, 97 (App.1998) (test for lesser included offense includes situation where lesser charge is “incidental” to greater whose commission as charged necessarily includes the lesser), cited unth approval in Cheramie, 218 Ariz. 447 , 189 P.3d 374 .
¶ 37 In all other respects, I concur with the majority.