State v. Gooch, 678 P.2d 946 (Ariz. 1984). · Go Syfert
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State v. Gooch, 678 P.2d 946 (Ariz. 1984). Cases Citing This Book View Copy Cite
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cited 2× by 1 distinct case · …choosing which offense to prosecute rests within the duty and discretion of the prosecutor. at p. 948 ✓
74 citation events (20 in the last 25 years) across 3 distinct courts.
Strongest positive: State v. Lynam (arizctapp, 2016-09-15)
Treatment trajectory · 1984 → 2026 · click a year to view as-of
1984 2005 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
examined Cited as authority (verbatim quote) State v. Lynam (2×) also: Cited as authority (quoted)
Ariz. Ct. App. · 2016 · quote attribution · 2 verbatim quotes · confidence high
choosing which offense to prosecute rests within the duty and discretion of the prosecutor.
cited Cited as authority (rule) State v. Sucharew
Ariz. Ct. App. · 2003 · confidence medium
State v. Gooch, 139 Ariz. 365, 367 , 678 P.2d 946, 948 (1984).
discussed Cited as authority (rule) State of Arizona v. Powers
Ariz. Ct. App. · 2001 · confidence medium
State v. Hankins, 141 Ariz. 217, 221 , 686 P.2d 740, 744 (1984); State v. Gooch, 139 Ariz. 365, 367 , 678 P.2d 946, 948 (1984); State v. Rodriguez, 158 Ariz. 69, 70-71 , 761 P.2d 143, 144-45 (App.1988). 6 .
discussed Cited as authority (rule) State v. Corona
Ariz. Ct. App. · 1997 · confidence medium
According to State v. Gooch, 139 Ariz. 365, 366 , 678 P.2d 946, 947 (1984), such an instruction is warranted if (1) the included offense is always a constituent part of the greater offense or (2) if the charging document described the lesser offense even though it would not always form a constituent part of the greater offense.
discussed Cited as authority (rule) State v. Bass
Ariz. Ct. App. · 1995 · confidence medium
No reported Arizona case has decided whether burglary in the third degree (nonresidential structure) is a lesser-ineluded offense of burglary in the second degree (residential structure). 1 The lesser-ineluded offense issue is squarely presented in this case and will be decided by answering the following question: “can the [greater] offense, as described by statute, or as charged, ‘be committed without necessarily committing the lesser.’ ” See State v. Gooch, 139 Ariz. 365, 366-67 , 678 P.2d 946, 947-48 (1984) (citations omitted).
discussed Cited as authority (rule) State v. Magana (2×)
Ariz. Ct. App. · 1994 · confidence medium
State v. Gooch, 139 Ariz. 365, 366 , 678 P.2d 946, 947 (1984).
examined Cited as authority (rule) State v. Scott (7×) also: Cited "see"
Ariz. · 1993 · confidence medium
However, a crime may also be a lesser included offense if “the terms of the charging document describe the lesser offense even though the lesser offense would not always form a constituent part of the major offense charged.” Gooch, 139 Ariz. at 366 , 678 P.2d at 947 (emphasis added).
cited Cited as authority (rule) State v. Garcia
Ariz. Ct. App. · 1993 · confidence medium
Stated differently, can the offense, as described by statute, or as charged, ‘be committed without necessarily committing the lesser.’ Gooch, 139 Ariz. at 366 , 678 P.2d at 947 (emphasis added).
cited Cited as authority (rule) State v. Woods
Ariz. Ct. App. · 1991 · confidence medium
State v. Gooch, 139 Ariz. 365 ; 366, 678 P.2d 946, 947 (1984), citing In re Maricopa County Juvenile Action No. J-75755, 111 Ariz. 103, 105 , 523 P.2d 1304, 1306 (1974).
discussed Cited "see" State of Arizona v. Jesus Ismael Rodriguez
unknown court · 2025 · signal: see · confidence high
See State v. Gooch, 139 Ariz. 365, 365 (1984); State v. Murphy, 113 Ariz. 416, 418 (1976) (courts have no power to interfere with prosecutor’s exercise of discretion unless prosecutor is “acting illegally or in excess of his powers”).
cited Cited "see" State v. Gilmore
Ariz. Ct. App. · 2021 · signal: see · confidence high
See State v. Gooch, 139 Ariz. 365, 366-67 (1984).
discussed Cited "see" State v. Larson (2×)
Ariz. Ct. App. · 2009 · signal: see · confidence high
See State v. Gooch, 139 Ariz. 365, 366 , 678 P.2d 946 , 947 (1984); In re Jerry C., 214 Ariz. 270, 273, ¶ 7 , 151 P.3d 553, 556 (App. 2007); but see State v. Ortega, 220 Ariz. 320, 324-25, ¶ 13 , 206 P.3d 769, 773-74 (App.2008) (rejecting the charging documents test to determine whether two offenses áre the same for determining whether jeopardy attaches).
discussed Cited "see" In Re Victoria K. (2×)
Ariz. Ct. App. · 2000 · signal: see · confidence high
State v. Brown, 195 Ariz. 206, 207-08, ¶ 5 , 986 P.2d 239, 240-41 (App.1999); see State v. Gooch, 139 Ariz. 365, 366-67 , 678 P.2d 946, 947-48 (1984).
discussed Cited "see" State v. Williams (2×)
Ariz. Ct. App. · 1991 · signal: see · confidence high
See State v. Gooch, 139 Ariz. 365 , 678 P.2d 946 (1984).
discussed Cited "see, e.g." State v. FIIHR (2×)
Ariz. Ct. App. · 2008 · signal: see also · confidence low
In addition, the offenses must be such “that the lesser cannot be committed without always satisfying the corresponding elements of the greater.” In re Victoria K., 198 Ariz. 527, ¶ 17 , 11 P.3d 1066, 1070 (App.2000). “ ‘The test for whether an offense is “lesser-included” is whether it is, by its very nature, always a constituent part of the greater offense, or whether the charging document describes the lesser offense even though it does not always make up a constituent part of the greater offense.’ ” 4 State v. Robles, 213 Ariz. 268, ¶ 5 , 141 P.3d 748, 750-51 (App. 2006),…
discussed Cited "see, e.g." State of Arizona v. William John Fiihr (2×)
Ariz. Ct. App. · 2008 · signal: see also · confidence low
In addition, the offenses must be such “that the lesser cannot be committed without always satisfying the corresponding elements of the greater.” In re Victoria K., 198 Ariz. 527, ¶ 17 , 11 P.3d 1066, 1070 (App. 2000). “‘The test for whether an offense is “lesser-included” is whether it is, by its very nature, always a constituent part of the greater offense, or whether the charging document describes the lesser offense even though it does not always make up a constituent part of the greater offense.’” 4 State v. Robles, 213 Ariz. 268, ¶ 5 , 141 P.3d 748, 750-51 (App. 2006), …
discussed Cited "see, e.g." State of Arizona v. James Albert Robles (2×)
Ariz. Ct. App. · 2006 · signal: see also · confidence low
State v. Cons, 208 Ariz. 409, ¶ 15 , 94 P.3d 609, 615 (App. 2004). 3 whether an offense is ‘lesser-included’ is whether it is, by its very nature, always a constituent part of the greater offense, or whether the charging document describes the lesser offense even though it does not always make up a constituent part of the greater offense.” State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 12 , 965 P.2d 94, 97 (App. 1998); see also State v. Gooch, 139 Ariz. 365, 366-67 , 678 P.2d 946 , 947-48 (1984); State v. Magana, 178 Ariz. 416, 418 , 874 P.2d 973, 975 (App. 1994). ¶6 “Driving on a sus…
discussed Cited "see, e.g." State v. Robles (2×)
Ariz. Ct. App. · 2006 · signal: see also · confidence low
“The test for whether an offense is ‘lesser-included’ is whether it is, by its very nature, always a constituent part of the greater offense, or whether the charging document describes the lesser offense even though it does not *271 always make up a constituent part of the greater offense.” State v. Chabollar-Hinojosa, 192 Ariz. 360, ¶ 12 , 965 P.2d 94, 97 (App.1998); see also State v. Gooch, 139 Ariz. 365, 366-67 , 678 P.2d 946, 947-48 (1984); State v. Magana, 178 Ariz. 416, 418 , 874 P.2d 973, 975 (App.1994). ¶ 6 “Driving on a suspended license is not an inherent constituent part…
discussed Cited "see, e.g." State v. Brown (2×)
Ariz. Ct. App. · 1999 · signal: see also · confidence low
Stated another way, “a court may inquire as to whether the greater offense, as described by a statute or as charged, can be commit *208 ted without necessarily committing the lesser offense.” State v. Chabolla-Hinojosa, 192 Ariz. 360, 363 , 965 P.2d 94, 97 (App.1998) (citation omitted) (quoting State v. Ennis, 142 Ariz. 311, 314 , 689 P.2d 570, 573 (App.1984)), review denied (Oct. 22, 1998); see also State v. Gooch, 139 Ariz. 365, 366-67 , 678 P.2d 946, 947-48 (1984) (enunciating test for lesser-included offense). ¶ 6 The trial court correctly declined to instruct the jury on driving on a…
Retrieving the full opinion text from the archive…
STATE of Arizona, Appellee,
v.
David Lee GOOCH, Appellant.
5938.
Arizona Supreme Court.
Mar 1, 1984.
678 P.2d 946
Holohan.
Cited by 28 opinions  |  Published
1 passage pin-cited by 1 case
Pinpoint authority: bottom 87%
Citer courts: Court of Appeals of Arizona (1)

[*366] Robert K. Corbin, Atty. Gen. by William J. Schafer III, Diane M. Ramsey, Asst. Attys. Gen., Phoenix, for appellee.

Kemper & Henze by Emmet J. Ronan, Phoenix, for appellant.

HOLOHAN, Chief Justice.

Appellant, David Lee Gooch, was convicted after trial by a jury of negligent homicide, and was sentenced to the presumptive term of six years imprisonment. We affirm.

The essential facts are that appellant loaned a loaded gun to his co-defendant, Wussler, after appellant learned that Wussler wanted to shoot someone. Shortly before the shooting, appellant drove Wussler to a location near the victim's apartment, but did not attend the shooting. Wussler fatally shot the victim with the gun loaned by appellant. Our decision affirming Wussler's conviction and sentence includes additional facts related to the killing. See State v. Wussler, 139 Ariz. 428, 679 P.2d 74 (1984).

Appellant raises one issue on appeal: whether the trial court committed reversible error by refusing to instruct the jury about the crime of facilitation. See A.R.S. § 13-1004. Appellant argues that facilitation is a lesser included offense of the greater offense, second-degree murder[1] and maintains that the state's theory of accomplice liability created a factual predicate for a facilitation instruction.

The facilitation instruction would have been proper if facilitation[2] could be considered a lesser-included offense to second-degree murder, the crime charged, and if the evidence would have rationally supported a jury conclusion that the state had failed to prove an element of the greater offense. State v. Malloy, 131 Ariz. 125, 129, 639 P.2d 315, 319 (1981); State v. Harris, 134 Ariz. 287, 288, 655 P.2d 1339, 1340 (App. 1982). To determine whether an offense is a lesser-included offense, a court may consider two bases: "(1) the included offense is by its very nature always a constituent part of the major offense charged; or (2) the terms of the charging document describe the lesser offense even though the lesser offense would not always form a constituent part of the major offense charged." In re Maricopa County Juvenile Action No. J-75755, 111 Ariz. 103, 105, 523 P.2d 1304, 1306 (1974). Stated differently, can the offense, as described[*367] by statute, or as charged, "be committed without necessarily committing the lesser." State v. Malloy, 131 Ariz. at 130, 639 P.2d at 320; State v. Harris, 134 Ariz. at 288, 655 P.2d at 1340.

Once the offense is found to be an included one, the court must then consider whether the evidence supports the requested instruction.

In the case at bench, second-degree murder by statute and as charged could indeed have been committed without thereby committing facilitation. We find no error in the trial court's refusal to instruct on facilitation.

Even though appellant could have been prosecuted for facilitation, that possibility does not affect the decision of whether the instruction is proper. See State v. Politte, 136 Ariz. 117, 121, 664 P.2d 661, 665 (App. 1982) ("The appellant is not entitled to an instruction on another offense [facilitation] even though he might have been charged with and convicted of that offense.")[3] We agree with our court of appeals that A.R.S. § 13-1004, the facilitation statute, "gives the prosecuting attorney the option to charge a person as an aider and abettor under that statute rather than as a principal in the substantive offense." State v. Harris, 134 Ariz. at 288, 655 P.2d at 1340 (footnote omitted). See also Arizona Criminal Code Commission, Arizona Revised Criminal Code (1975) p. X ("Perhaps the most significant change in the area of preparatory offenses is the addition of solicitation and facilitation to Arizona law. The code thus makes urging criminal conduct or providing means or opportunity for crime an offense.") Choosing which offense to prosecute rests within the duty and discretion of the prosecutor. State v. Murphy, 113 Ariz. 416, 555 P.2d 1110 (1976); State v. Faught, 97 Ariz. 165, 398 P.2d 550 (1965); see also State v. Williams, 120 Ariz. 600, 587 P.2d 1177 (1978); A.R.S. § 11-532 (Supp. 1983).

We have reviewed the record for error under A.R.S. § 13-4035 and found none. The judgments of conviction and sentence are affirmed.

GORDON, V.C.J., and HAYS and CAMERON, JJ., concur.

FELDMAN, J., did not participate in the determination of this matter.

1 Appellant was charged originally with first-degree murder, but at the close of the state's case the trial court granted appellant's motion for directed verdict as to the first-degree murder charge. The court instructed the jury on the lesser-included offenses of second-degree murder, manslaughter, and negligent homicide.
2 § 13-1004. Facilitation; classification

A. A person, other than a peace officer acting in his official capacity within the scope of his authority and in the line of duty, commits facilitation if, acting with knowledge that another person is committing or intends to commit an offense, such person knowingly provides such other person with means or opportunity for the commission of the offense and which in fact aids such person to commit the offense.

B. Facilitation is a:

1. Class 5 felony if the offense facilitated is a class 1 felony.

2. Class 6 felony if the offense facilitated is a class 2 or class 3 felony.

3. Class 1 misdemeanor if the offense facilitated is a class 4 or class 5 felony.

4. Class 3 misdemeanor if the offense facilitated is a class 6 felony or a misdemeanor.

3 In Luttrell v. Commonwealth, 554 S.W.2d 75 (Ky. 1977) criminal facilitation was held to be a lesser included offense of the substantive offense charged. The decision was based on a construction of the Kentucky statute defining lesser included offenses. The Kentucky statute concerning lesser included offenses is much more expansive than the Arizona definition of lesser included offenses.