Articles Posted in Theft

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When someone is arrested for a crime, such as robbery, it is up to the prosecution to determine what charges they will face. Unfortunately, it is not uncommon for the prosecution to overcharge a defendant. Typically, when a defendant is overcharged they will have far more charges than necessary, and of a more serious nature. Prosecutors may have several reasons when they overcharge a defendant; however, it is commonly understood that prosecutors overcharge at least in part out of a hope that the serious nature of the charges will persuade the defendant to consider pleading to a lesser offense. Thus, someone who is charged with an Arizona crime must understand the elements of that crime and the prosecution’s chances of proving it at trial.

Robbery is among the most overcharged offenses in Arizona. An Arizona robbery offense is committed when “in the course of taking any property …, such person threatens or uses force against any person with intent either to coerce surrender of property or to prevent resistance to such person taking or retaining property.” Simply stated, a robbery occurs when someone takes or attempts to take an object by force or threat of force. Another way of looking at a robbery offense is that it is an assault that is committed in the course of a theft. Notably, there is no requirement that the person charged with robbery be successful in their attempt to remove an item from another person.

There are several types of defenses to a robbery charge. In some cases, the eyewitness identification may be suspect and susceptible to attack. For example, often, robberies occur in a split second, and an eyewitness’s mental notes about what the alleged doer looked like may not be accurate. However, police will use the eyewitness’ description to stop anyone that matches that description. Once police stop someone they believe matches the description, there may be an issue with the suggestiveness of the identification. For example, if a witness is asked if a suspect was the person that robbed him, and the person is in handcuffs and surrounded by eight police officers, the witness may be subconsciously cued to believe that the suspect was the person who robbed them.

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Recently, a state appellate court issued a written opinion in an Arizona burglary case discussing the defendant’s motion to suppress the cell-site location data (CSLD) that the prosecution used to tie the defendant to a co-defendant, who was alleged to have committed several burglaries. Ultimately, the court concluded that the CSLD was not seized in violation of the defendant’s Fourth Amendment rights and affirmed her conviction.

According to the court’s opinion, police officers were investigating a string of burglaries. After receiving a tip that the co-defendant was going to commit another burglary, police officers obtained a warrant to search the co-defendant’s truck, home, and warehouse. When police stopped the co-defendant’s truck, the defendant was in the passenger seat. The defendant was in possession of several stolen pieces of jewelry.

In a single trial, the prosecution tried both defendants together. To tie the defendant to the burglaries, the prosecution obtained cellular site location data from the defendant’s cell phone. This data showed that the defendant was within a few miles of at least seven of the homes that were burglarized by the co-defendant. Neither the defendant nor her co-defendant moved to suppress the CSLD at trial. At the conclusion of the trial, the defendant was convicted on all counts. The defendant appealed the admission of the CSLD.

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Under common law, a burglary was defined as the breaking and entering of a dwelling of another at night with an intent to commit a felony therein. Over the years, state legislatures have refined the definition of burglary. For the most part, states have eliminated the requirement that the breaking and entering occur at night, and have added language making it a burglary to unlawfully remain on another’s property with the intent to commit a crime.

Arizona has three burglary statutes.

  • Burglary in the third degree: Entering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or residential yard with the intent to commit any theft or any felony therein.
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Earlier this year, a state appellate court issued a written opinion in an Arizona gun possession case where the defendant was arrested for shoplifting and, upon a search of his backpack, police discovered a firearm. The case presents an interesting and informative discussion regarding when police have probable cause to determine that someone has committed the crime of shoplifting.

According to the court’s opinion, the defendant entered a store wearing a backpack. He placed the backpack into a shopping cart and began walking around the store. The store’s video surveillance system shows the defendant selecting a variety of items and putting them into his cart. He also places a number of those items back onto the shelf. At some point, the defendant took a pair of sunglasses off the rack, removed the tag, and placed them atop his head.

The video also showed the defendant select an energy drink and a package of condoms and place them atop his backpack, which was still lying inside the cart. At some point, the defendant walks behind some displays out of frame of the surveillance camera. When he gets back in the frame, the energy drink and box of condoms are no longer visible. The store security guard, who believed that the defendant placed the items in his backpack, called the police. The defendant was stopped at the point-of-sale, before he had paid for the items or left the store. Police arrested the defendant for shoplifting and searched his backpack, where they found an energy drink, a box of condoms, narcotics, and a gun.

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Earlier this month, a state appellate court issued a written opinion in an Arizona burglary case in which the defendant challenged the sufficiency of the evidence that was used to convict him. However, the court affirmed the defendant’s conviction for burglary on the basis that the two-drawer filing cabinet he was seen peering into was a “nonresidential structure.”

The Facts of the Case

According to the court’s written opinion, a man received a notification on his cell phone that something triggered his home’s motion sensor. The man grabbed his gun and went outside to check around his property. Once the man got outside, he evidently saw the defendant holding a flashlight looking in a two-drawer filing cabinet that the man kept alongside his garage. The man told the defendant to stop, and the defendant was ultimately arrested and charged with burglary.

Burglary in Arizona

In Arizona, section 13-1508 defines burglary in the first degree as “entering … a nonresidential structure … with the intent to commit any theft or any felony therein” while possessing a weapon. The term nonresidential structure is defined in section 13-1501 as “any structure other than a residential structure and includes a retail establishment.” Section 13-1501 also defines the term “structure” as an “object… with sides and a floor that is separately securable from any other structure attached to it and that is used for lodging, business, transportation, recreation or storage.”

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Recently, a state appellate court issued a written opinion in an Arizona burglary case discussing whether the trial court properly reversed a defendant’s conviction after the jury was allowed to view digital pictures that had only been admitted into evidence as hard-copies. Ultimately, the court concluded that the digital images were “duplicates” of the original hard-copy photographs, and that showing the digital images to the jury was permissible.

The Facts of the Case

According to the court’s recitation of the facts, a witness saw a man and a woman jumping over a fence and entering a home. A few minutes later, the witness saw the same couple leaving the home carrying a black bag. The witness took several pictures of the couple on her cell phone.

Police later determined that jewelry and several guns were missing from the property. The defendant was arrested and charged with several crimes, including burglary and possession of a firearm by a prohibited possessor.

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Recently, a state appellate court issued a written opinion in an Arizona criminal case requiring the court to determine if police had probable cause to arrest the defendant without a warrant. Ultimately, the court concluded that the information police had at the time they decided to arrest the defendant gave them probable cause to believe that she had acted as an accomplice in the robbery.

The Facts of the Case

The complaining witness was approached by someone in a convenience store parking lot who took her purse. Video of the parking lot showed that person get into the passenger door of a green “Jeep-like” vehicle with a white bumper sticker in the top-right corner of the rear window. After taking the robbery report, a police officer put out a description of the vehicle over police radio.

About 30 minutes later, the officer received a report of a suspicious vehicle that other officers believed to be the one involved in the robbery. The investigating officer drove to where the vehicle was parked and confirmed that it was the same vehicle as seen in the video. In the bushes not far from the vehicle was the complaining witness’ purse. A witness told police that a woman had recently moved the car to its current location from a driveway a few doors down. Police ran the license plate, and it was registered to the defendant’s name.

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An unpublished Arizona appellate decision considered an identity theft, theft, and fraudulent schemes case. The charges arose after a high-end mountain bike was stolen from a home in 2010 and then sold on Craigslist. At trial, the defense attorney stated that the mountain bike the defendant sold wasn’t the bike stolen from the home, as made plain by the difference in serial numbers.

The defense attorney cross-examined the buyer of the bike. The buyer’s wife gave the police officer a piece of paper on which she’d put two numbers that the victim of the theft said were on his bike. One of these numbers matched the bike the buyer bought. The buyer’s wife had kept the paper for three years without turning it over to the police until a few weeks before trial. The first the defense counsel and prosecutor heard of it was during the cross-examination.

The court asked the parties if they wanted a mistrial due to the surprise. The defense attorney initially said that one way to deal with what happened was a mistrial, but he was clear that he would rather go to trial with the same jury. The prosecutor suggested empaneling a new jury or precluding any more evidence about the scrap of paper. The defense attorney also stated that he wouldn’t move to strike the surprise testimony because he didn’t want to call attention to it, and if a mistrial were deemed necessary, he would ask for a dismissal with prejudice.

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