A.R.S. 13-1304(A) Interpretation

In State v. Eagle, 196 Ariz. 188, P 6, 994 P.2d 395, 397 (2000), the Arizona Supreme Court considered whether Arizona's kidnapping statute, A.R.S. 13-1304, which is similar in construction to 13-1405, contains the separate offenses of first- and second-degree kidnapping. The court concluded that the statute creates a single offense that is presumptively a class two felony; the fact that the victim was released without physical injury is merely "a mitigating factor relevant solely for sentencing purposes," which allows the offense to be reduced to a class four felony as set forth in subsection (B) of the statute. Id. PP 10, 17. Because only the defendant benefits from the existence of a mitigating factor, he bears the burden of proving it. Id. P 17. The court noted, however, that the statute "also identifies as an aggravating circumstance the fact that the victim is under 15 years of age. The Constitution sometimes requires facts that increase punishment to be treated as elements of the crime, not merely as sentencing factors." Id. n.1. Because that issue was not before the court, it "express[ed] no opinion whether the aggravating factor . . . must be treated as an element of the offense." Id.