Prior convictions are an element of the crime of felony shoplifting in Arizona law; shoplifting priors are not sentencing enhancements therefore bifurcating the trial was not required.
Bifurcated Trials and Prejudicial Impact of Prior Convictions on Juries
Lara was convicted of felony shoplifting after stealing merchandise from a Walmart store. Because she had two prior shoplifting convictions within the previous five years, hers was a class 4 felony conviction.
During trial, defendant motioned to have the proceedings bifurcated, or split in two phases. The first phase being a misdemeanor shoplifting trial. If the jury rendered a guilty verdict, a second phase consider evidence of prior convictions as sentence enhancements. Bifurcation would prevent priors evidence from being made known to the jury until after it had already made a determination of guilt or innocence on the lesser charge of misdemeanor shoplifting. If found guilty of the misdemeanor, then and only then would evidence of the two prior shoplifting convictions (2009 and 2012) within the past five years, a felony in Arizona law, be revealed. The court denied the motion to bifurcate the trial.
Witnesses testified at trial that defendant admitted stealing Walmart merchandise. Certified copies of two prior convictions were admitted as evidence. The jury verdict was guilty and defendant appealed.
Sentencing Enhancements Are Not Elements of a Crime
On appeal, Lara argued that her prior convictions were sentencing enhancements, not elements of the shoplifting offense. That the jury should not have learned of the priors (potentially prejudicial evidence) until after a finding of guilt on every element of the lesser misdemeanor charge. And because sentence enhancements require bifurcated proceedings, the conviction should be vacated. The Court of Appeals affirmed the felony conviction and sentence.
Misdemeanor and Felony Shoplifting in Arizona law
Lara was convicted of felony shoplifting under ARS § 13-1805(A),(I). In part, Arizona’s shoplifting statute provides:
A. A person commits shoplifting 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:
1. Removing any of the goods from the immediate display or from any other place within the establishment without paying the purchase price; or
2. Charging the purchase price of the goods to a fictitious person or any person without that person’s authority; or
3. Paying less than the purchase price of the goods by some trick or artifice such as altering, removing, substituting or otherwise disfiguring any label, price tag or marking; or
4. Transferring the goods from one container to another; or
5. Concealment. …
I. A person who in the course of shoplifting uses an artifice, instrument, container, device or other article with the intent to facilitate shoplifting or who commits shoplifting and who has previously committed or been convicted within the past 5 years of 2 or more offenses involving burglary, shoplifting, robbery, organized retail theft or theft is guilty of a class 4 felony.
Prior Convictions an Element of Felony Shoplifting
This was an issue of statutory interpretation for the Arizona Court of Appeals. For conviction, the prosecution must prove every element of the crime beyond a reasonable doubt. The defendant was charged with a class 4 felony in violation of ARS § 13-1805(I), not a misdemeanor, and because the prosecution had to prove “2 or more offenses involving … shoplifting” in the “past 5 years,” the priors were what “elevated her offense to a class 4 felony.”
The prior violations establish elements of the substantive offense. As with aggravated DUI and aggravated domestic violence laws, elevating the offense requires no bifurcation. The existence of prior convictions are “an integral part of the crime.” The jury found defendant guilty of felony shoplifting because the State proved every element of the offense, including the element requiring evidence of two priors in 5 years.
Arizona v. Lara, 1 CA-CR 15-0506 (Ariz. Ct. App. July 5, 2016)
For precise language, read the court’s original opinion. Legal citations omitted.
Learn more about shoplifting crimes in Arizona law and possible defenses.