» Entries tagged with "burglary"
Nothing Better To Do
My biggest takeaway from State v. Foncette is that there must be no crime in Tempe. Officers stopped Foncette, apparently smelled marijuana, and brought a drug dog to the scene. The dog alerted, but they found nothing. They proceeded to follow him to a hotel and walked with the dog down the hallway outside of the room where he was staying. The dog alerted outside of his room, and officers knocked. When he opened the door, officers apparently smelled marijuana again. Foncette left the room when officers asked, but his companion did not. Police then detained both of them, and they subsequently got a warrant for a nighttime search of the hotel room. They found a lot of marijuana. Obviously, there were no burglaries in Tempe that night. I am sure … Read entire article »
Filed under: Arizona Cases, Drugs, Medical Marijuana
My Last Post on Lesser Included Offenses
Okay, I promise this will be the last post I’ll put up on the subject of lesser included offenses. It’s an interesting area to me not only because of cases like this and this, or because and the rule in Arizona is frustrating in general, but also because it can create a strange situation for a defense attorney. Here’s the dilemma: imagine a burglary case where intent is the only real issue. It’s clear the defendant shouldn’t have been there, but it’s tough to know whether he entered or remained unlawfully with the intent to commit a felony or any theft. If the defense attorney gets a lesser included offense instruction on criminal trespass despite the relevant case law, the defendant could be spared a lot of prison … Read entire article »
Filed under: Arizona Cases, Arizona Statutes
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 … Read entire article »
Filed under: Arizona Cases, Arizona Statutes
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