Lesser Included Offense Arizona

The Double Jeopardy Clauses in the United States and Arizona Constitutions protect against: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; (3) multiple punishments for the same offense." Quinton v. Superior Court, 168 Ariz. 545, 550, 815 P.2d 914, 919 (App. 1991); see North Carolina v. Pearce, 395 U.S. 711, 717, 23 L. Ed. 2d 656, 89 S. Ct. 2072 (1969); Hernandez v. Superior Court, 179 Ariz. 515, 517, 880 P.2d 735, 737 (App. 1994). As a corollary, the prohibition against double jeopardy also serves to bar further prosecution for any lesser-included offense(s). Illinois v. Vitale, 447 U.S. 410, 421, 65 L. Ed. 2d 228, 100 S. Ct. 2260 (1980); Brown v. Ohio, 432 U.S. 161, 168-69, 53 L. Ed. 2d 187, 97 S. Ct. 2221 (1977); State v. Chabolla-Hinojosa, 192 Ariz. 360, 362-63, 965 P.2d 94, 96-97 (App. 1998); Fitzgerald v. Superior Court (State), 173 Ariz. 539, 544, 845 P.2d 465, 470 (App. 1992), citing Blockburger v. United States, 284 U.S. 299, 304, 76 L. Ed. 306, 52 S. Ct. 180 (1932); see James A. Shellenberger and James A. Strazzella, the Lesser Included Offense Doctrine and the Constitution: the Development of Due Process and Double Jeopardy Remedies, 79 MARQ. L. REV. 1, 126 (Fall 1995). It follows that it is unconstitutional to impose a separate punishment for an offense lesser than one for which a defendant also has been convicted and sentenced. Brown, 432 U.S. at 169 ("Whatever the sequence may be, the Fifth Amendment forbids successive prosecution and cumulative punishment for a greater and lesser included offense."); see Shel lenberger and Strazzella, the Lesser Included Offense Doctrine and the Constitution, 79 MARQ. L. REV. at 126. When the same occurrence violates two distinct statutory pro visions, whether there are one or two offenses is determined by examining whether each requires proof of a fact that the other does not, although the elements may overlap. Blockburger, 284 U.S. at 304; State v. Cook, 185 Ariz. 358, 359, 916 P.2d 1074, 1075 (App. 1995); Hernandez, 179 Ariz. at 517-18, 880 P.2d at 737-38; see Shellenberger and Strazzella, the Lesser Included Offense Doctrine and the Constitution, 79 MARQ. L. REV. at 126. An offense is a lesser-included offense if it is composed solely of some, but not all, of the elements of the greater offense so that it is impossible to commit the greater offense without also committing the lesser. Put another way, the greater offense contains each element of the lesser offense plus one or more elements not found in the lesser. State v. Cisneroz, 190 Ariz. 315, 317, 947 P.2d 889, 891 (App. 1997); see State v. Foster, 191 Ariz. 355, 357, 955 P.2d 993, 995 (App. 1998); State v. Woods, 168 Ariz. 543, 544, 815 P.2d 912, 913 (App. 1991). and it may be that the charging document describes the lesser offense although it is not necessarily "a constituent part of the greater offense." State v. Brown, 195 Ariz. 206, 207-08, 986 P.2d 239, 240-41 (App. 1999). The United States Supreme Court recently applied the same elements test in considering whether a defendant is entitled to a jury instruction on a lesser offense. Carter v. United States, 147 L. Ed. 2d 203, 530 U.S. 255, 120 S. Ct. 2159 (2000). The defendant "must demonstrate that 'the elements of the lesser offense are a subset of the elements of the charged offense.'" Id. at 2164, quoting Schmuck v. United States, 489 U.S. 705, 716, 103 L. Ed. 2d 734, 109 S. Ct. 1443 (1989). the Court explained that this "elements test requires a 'textual comparison of criminal statutes.'" Id., quoting Schmuck, 489 U.S. at 720. It is in this context that we examine whether possession of chemicals and equipment for the purpose of manufacturing a dangerous drug and possession of drug paraphernalia are lesser-included offenses of manufacturing the same dangerous drug.