Another Irritating Non-Lesser Included Offense

Felony flight isn’t the only crime with an irritating non-lesser included offense. In State v. Malloy, the Supreme Court of Arizona decided criminal trespass was not a lesser included offense of burglary. Burglary requires entering or remaining unlawfully with the intent to commit any theft or a felony, and criminal trespass just requires knowingly entering or remaining unlawfully.

Although criminal trespass does contain the additional element “knowingly,” the Court in Malloy noted that “knowledge in the sense that the criminal act must have been voluntary” is implicit in all criminal offenses. However, the Court thought the word knowingly in the criminal trespass statute “must have some additional meaning” and decided that, in order to convict someone of criminal trespass, “the prosecution must prove not only that the defendant knowingly, voluntarily, entered or remained, but it must also prove that the defendant was aware that his entry or remaining was unlawful.” According to the Court, criminal trespass therefore is not a lesser included offense of burglary.

I like the fact they add an extra element to the crime of criminal trespass, but I’m not sold on the Court’s reasoning. Basically, the Court is saying that even though all of the elements of the lesser except one are found in the greater and the extra element in the lesser is implied in the greater, you don’t get a lesser included offense instruction because the extra word in the lesser has to mean something other than what it means when implied because it’s been written down. Believe it or not, what I’ve just described is actually a canon of statutory interpretation, a rule for interpreting laws.

Apparently, some attorneys in Maricopa County are challenging the ruling. I’ve also heard that a number of judges in rural counties regularly allow a criminal trespass lesser-included offense instruction for the crime of burglary. I’m definitely curious about what’s going to happen, as I think a lot of Arizona defendants have been convicted of burglary when they would’ve been convicted of criminal trespass, a much lower class of felony, if the jury had the option.