Whether collateral estoppel applies is a question of law. See Tripati v. Forwith , 223 Ariz. 81, ¶ 23, 219 P.3d 291 (App. 2009) ; see also Fitzgerald v. Superior Court , 173 Ariz. 539, 543, 845 P.2d 465, 469 (App. 1992) (accepting special-action jurisdiction to review denial of motion to dismiss charges based on claims of double jeopardy and collateral estoppel). In addition, whether the state is precluded from pursuing criminal prosecution because of a finding in a dependency action—a commonly occurring and accelerated process that can have implications concerning child safety and family preservation—is an issue of statewide importance, a fact that provides a compelling reason for accepting special-action jurisdiction.

Fitzgerald v. Superior Court In and For County of Maricopa involved a civil forfeiture proceeding in which the trial court found that the defendant had not possessed or used the items in question for any criminal activity, and the court of appeals held that issue preclusion barred the state’s relitigating those issues in a later prosecution. 173 Ariz. 539, 548, 845 P.2d 465, 474 (App. 1992). ¶13 Neither case is dispositive here.

Special action is an appropriate procedural vehicle when a criminal defendant raises an issue prior to prosecution about whether that prosecution will violate her constitutional right to double jeopardy protection. Fitzgerald v. Superior Court, 173 Ariz. 539, 543, 845 P.2d 465, 469 (App. 1992). Therefore, we have accepted special action jurisdiction.

The issue on appeal was whether the trial court erred in concluding "that Pima County had not proven by a preponderance of the evidence that the seized money was subject to forfeiture." Id. ¶ 14; see also Fitzgerald v. Superior Court, 173 Ariz. 539, 547, 845 P.2d 465, 473 (App. 1992) (forfeiture and criminal cases subject to different standards of proof). We affirmed the court's conclusion that the money was not subject to forfeiture because Pima County relied on the claimant's "internally inconsistent and largely undocumented explanations of the source of the seized money," rather than tracing it.

And to prove possession of drug paraphernalia the State was required to prove the defendant knowingly (1) used or possessed with the intent to use; (2) drug paraphernalia; (3) "to plant, propagate, cultivate, grow, harvest, manufacture, compound, convert, produce, process, prepare, test, analyze, pack, repack, store, contain, conceal, inject, ingest, inhale or otherwise introduce into the human body [an illegal] drug." A.R.S. § 13-3415(A); Fitzgerald v. Superior Court In & For Cnty. of Maricopa, 173 Ariz. 539, 547, 845 P.2d 465, 473 (App. 1992). ¶16 The jury heard testimony from both police officers and the forensic scientist.

But, as the state notes, double jeopardy principles prohibit convictions for both a greater offense and a lesser included offense, and a violation of double jeopardy is fundamental error. See Fitzgerald v. Superior Court, 173 Ariz. 539, 544, 845 P.2d 465, 470 (App. 1992); see also State v. Siddle, 202 Ariz. 512, n. 2, 47 P.3d 1150, 1153 n. 2 (App. 2002). We review this issue de novo.

The doctrine does not bar consideration of Conn's admissions in this context, however, because use by an expert in a civil commitment proceeding presents a different question than admissibility for purposes of prosecution or punishment, and the supreme court's ruling in Conn barred only the latter. For similar reasons, the doctrine of collateral estoppel likewise does not apply. It, too, requires, among other criteria, that the issue being litigated be identical to an issue previously litigated between the same parties. Fitzgerald v. Superior Court, 173 Ariz. 539, 546, 845 P.2d 465, 472 (App. 1992). However, the trial court here did not cite collateral estoppel as a basis for its decision, nor has Conn argued explicitly that it applies.

"Because this issue had been decided unfavorably to the State under a preponderance of the evidence standard of proof, the State is barred from proceeding against defendant under a beyond a reasonable doubt standard." Buonavolanto, 238 Ill. App.3d at 671; accord Fitzgerald v. Superior Court, 173 Ariz. 539, 548, 845 P.2d 465, 474 (Ariz. Ct. App. 1992); In re Neil C., 308 Md. 591, 594-95, 521 A.2d 329, 331 (Md. Ct. App. 1987). In Buonavolanto, we cited a Maryland case closely analogous to the case before us.

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 (1980); Brown v. Ohio, 432 U.S. 161, 168-69 (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 (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, 95 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 Shellenberger and Strazzella, The Lesser Included Offense Doctrine and the Constitution, 95 MARQ. L. REV. at 126. Welch does not pursue his contention that there was a separate violation of the Arizona Constitution. However, the federal and state constitutions do not significantly differ, and the same standard generally is used to analyze both provisions.

Whether the latter offense includes the former must be resolved because, when a person is convicted of an offense, the prohibition against double jeopardy protects against further prosecution for that or any lesser-included offense. See Fitzgerald v. Superior Ct., 173 Ariz. 539, 544, 845 P.2d 465, 470 (App. 1992) (citing Blockburger v. United States, 284 U.S. 299, 304 (1932)). ¶ 11 A lesser-included offense is one "composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one."