                                                                           FILED BY CLERK
                                                                              JUL 25 2013
                              IN THE COURT OF APPEALS
                                  STATE OF ARIZONA                             COURT OF APPEALS
                                    DIVISION TWO                                 DIVISION TWO


THE STATE OF ARIZONA,                            )       2 CA-CR 2012-0184
                                                 )       DEPARTMENT A
                                    Appellee,    )
                                                 )       OPINION
              v.                                 )
                                                 )
ROBERT FRANCISCO BORQUEZ,                        )
                                                 )
                                    Appellant.   )
                                                 )


            APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY

                                Cause No. CR20112027001

                            Honorable Deborah Bernini, Judge

                      AFFIRMED IN PART; VACATED IN PART


Thomas C. Horne, Arizona Attorney General
 By Joseph T. Maziarz and Amy Pignatella Cain                                       Tucson
                                                                     Attorneys for Appellee

Isabel G. Garcia, Pima County Legal Defender
 By Scott A. Martin                                                                  Tucson
                                                                     Attorneys for Appellant


M I L L E R, Judge.


¶1            Appellant Robert Borquez was convicted of theft of a credit card,

fraudulent use of the credit card, and theft by misrepresentation relating to the credit card.

On appeal he challenges the conviction of theft by misrepresentation, arguing there was
insufficient evidence establishing the elements of the offense. In addressing these issues

we must decide whether A.R.S. § 13-1802(A)(3) requires a material misrepresentation to

the person who suffered a loss, or if a misrepresentation to a third party that is

instrumental in causing the wrongful act is sufficient. For the reasons stated below, we

affirm the convictions but vacate a portion of the sentence imposed.

                         Factual and Procedural Background

¶2            Borquez was charged in count one of the indictment—the charge that is

relevant to this appeal—with theft by obtaining more than $4,000 but less than $25,000

from the victim credit card company “and/or” T.M. “by means of a material

misrepresentation with intent to deprive,” in violation of A.R.S. § 13-1802(A)(3).

Subsection (A)(3) of the statute constitutes one of six ways in which a person may

commit the offense of theft. See State v. Dixon, 127 Ariz. 554, 561-62, 622 P.2d 501,

508-09 (App. 1980) (finding that § 13-1802 defines single offense—theft—that can be

committed in multiple ways). It provides as follows: “A person commits theft if, without

lawful authority, such person knowingly . . . [o]btains services or property of another by

means of any material misrepresentation with intent to deprive the other person of such

property or services.”     § 13-1802(A)(3).       Section 13-1801(A)(8), A.R.S., defines

“material misrepresentation” as “a pretense, promise, representation or statement of

present, past or future fact that is fraudulent and that, when used or communicated, is

instrumental in causing the wrongful control or transfer of property or services.”

¶3            Viewed in the light most favorable to sustaining the verdicts, the evidence

presented at the jury trial established the following. See State v. Haight-Gyuro, 218 Ariz.

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356, ¶ 2, 186 P.3d 33, 34 (App. 2008). Borquez was living with his then-fiancée, Z.M.,

and her mother, T.M., when T.M. noticed her credit card was missing. A few weeks

later, T.M. found two receipts from Pima County Superior Court totaling $5,195 and a

credit card receipt reflecting payment to the court in that amount on behalf of Borquez.

T.M. called the credit card company when she discovered the receipts, confirming the

charges had been incurred. The amount subsequently was reflected on T.M.’s credit card

statement. T.M. never authorized Borquez to use her credit card.

¶4             T.M. also called the police and an officer went to her home. The officer

questioned Borquez, who admitted he had taken the credit card off of the kitchen counter

about a month earlier. Borquez was arrested and as Z.M. was saying good-bye to him,

she asked him what had happened. He responded that he had stolen her mother’s credit

card and had used it to pay his court fees.

¶5            Pima County collections officer and supervisor Ray Rivas testified about

the processing and tracking of account collection information through its computer

system. Rivas read to the jury the following notes that a collections clerk had entered

into the system with respect to Borquez’s account: “[D]efendant[’s] father called in info,

paid balance on account at time of call” using a credit card. Rivas added, “Then the

collector verified the address . . . of the cardholder.” Borquez had given the person a

credit card number for a card issued to T.M.      Rivas noted it is “pretty routine” for a

family member to pay a person’s fees and fines.

¶6            The prosecutor argued in closing argument that Borquez had stolen the

credit card from T.M. and had used it to pay what he owed to the superior court,

                                              3
admitting to Z.M. he had done this. He stated Borquez had obtained the property of

another by “obtain[ing] $5,200 to make good on the bill he owed to Superior Court.”

With respect to the element of material misrepresentation, the state contended,

“Misrepresentation occurred when [Borquez] called Superior Court and told them over

the phone that he was the cardholder and that he was authorized to make the payment.”

The prosecutor acknowledged T.M. is a woman, but argued that because her first name is

gender-neutral, “there’s a certain degree of ambiguousness of what gender we’re talking

about.” The prosecutor also argued that “[t]he second element, . . . the intent to deprive

the other person of the property or services,” could be inferred “by knowing that

[Borquez’s] account [with the court] was cleared out” and he “no longer owed” the nearly

$5,200 obligation.

¶7           Defense counsel conceded there was sufficient evidence for the jury to find

Borquez guilty of counts two and three, theft of a credit card and fraudulent use of a

credit card. But, he argued, the state had not proven Borquez had committed theft by

misrepresentation because the offense did not “apply to the fact[s] of this case.” Counsel

argued that Borquez “didn’t obtain the money, which is what they allege in Count One.”

“He never had any money in his hands. He never obtained any other sort of property, a

television or anything like that. What he obtained was a credit card,” which was covered

by a “separate law,” and a separate charge. The jury found Borquez guilty on all three

counts. The trial court sentenced him to imposed concurrent, mitigated sentences, the

longest of which was 3.5 years, and entered a criminal restitution order in favor of the

victim credit card company.

                                            4
                                       Discussion

¶8            Borquez contends there was insufficient evidence he made a material

misrepresentation to anyone.      Additionally, relying to a large degree on State v.

Schneider, 148 Ariz. 441, 715 P.2d 297 (App. 1985), Borquez contends on appeal an

essential element of the offense is reliance by a victim on a material misrepresentation.

He argues, “even overlooking the deficient factual support for the alleged

misrepresentation, there was no showing of a material misrepresentation leading to actual

reliance by the victim.” He adds, “There was no evidence that the Superior Court Clerk’s

employee that conducted the transaction did so because of any misrepresentation by

Appellant.” He argues none of the evidence the state presented established that the

person using the card had to be the cardholder. And, he claims, “it is not even clear who

the alleged theft victim was in the case.” We first address whether there was sufficient

evidence for the jury to find a material misrepresentation, and then turn to the contention

that the misrepresentation must be made directly to the victim or in such a manner to

induce reliance by the victim.

¶9            Whether sufficient evidence was presented to sustain the verdict is a

question of law this court reviews de novo. See State v. West, 226 Ariz. 559, ¶ 15, 250

P.3d 1188, 1191 (2011). We review the evidence “presented at trial only to determine if

substantial evidence exists to support the jury verdict.” State v. Hausner. 230 Ariz. 60,

¶ 50, 280 P.3d 604, 619 (2012). “Substantial evidence is more than a mere scintilla and

is such proof that ‘reasonable persons could accept as adequate and sufficient to support a

conclusion of defendant’s guilt beyond a reasonable doubt.’” State v. Mathers, 165 Ariz.

                                            5
64, 67, 796 P.2d 866, 869 (1990), quoting State v. Jones, 125 Ariz. 417, 419, 610 P.2d

51, 53 (1980). In reviewing the record, we view the evidence and the reasonable

inferences the evidence permits in the light most favorable to sustaining the verdict. See

State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996). “To set aside a jury

verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever

is there sufficient evidence to support the conclusion reached by the jury.” State v.

Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987). We do “not reweigh the

evidence to decide if [we] would reach the same conclusions as the trier of fact.” State v.

Barger, 167 Ariz. 563, 568, 810 P.2d 191, 196 (App. 1990) (citation omitted).

¶10           Borquez argues the state did not sustain its burden of proving he had made

a material misrepresentation to the superior court because it did not call as a witness the

superior court employee who received the telephone call from the person claiming to be

Borquez’s father. He maintains Rivas had no personal knowledge about this matter or

the telephone conversation and the exhibits the state introduced did not establish the

person who made the call had “identified himself as the cardholder or as [T.M.].” He

argues that although he admitted he had used the credit card to pay his court fines and

fees, he did not admit he was the one who had called the superior court.

¶11           Whether evidence is circumstantial or direct, it may be substantial and,

therefore, sufficient to support a conviction as long as reasonable jurors could find it

permits the inference of the defendant’s guilt beyond a reasonable doubt. State v. Henry,

205 Ariz. 229, ¶ 11, 68 P.3d 455, 458 (App. 2003). And in reviewing the sufficiency of



                                            6
the evidence, we do not distinguish circumstantial from direct evidence. See State ex rel.

O’Neill v. Brown, 182 Ariz. 525, 527, 898 P.2d 474, 476 (1995).

¶12           Borquez admitted to Z.M. he had stolen T.M.’s credit card and had used it

to pay the amount he owed to superior court. And as we previously noted, counsel

conceded during closing argument that Borquez had committed the offenses in counts

two and three, theft of a credit card and fraudulent use of a credit card. Through exhibits

and Rivas’s testimony, the state established T.M.’s credit card had been used to pay the

nearly $5,200 Borquez owed in fees and fines after a person who identified himself as

Borquez’s father spoke to a superior court employee and gave the person the credit card

number and cardholder name. Rivas testified without objection to his qualifications

about the court’s general practices and it was clear he based his testimony about the

payment of the balance on Borquez’s account on notes entered into the computer by

another employee. It was for the jury to assess Rivas’s credibility and, based on that

assessment, determine how much “weight and value” to give his testimony. State v. Cox,

217 Ariz. 353, ¶ 27, 174 P.3d 265, 269 (2007).

¶13           Based on this and other evidence, including Borquez’s admissions to Z.M.,

and his admissions through counsel’s closing argument, reasonable jurors could infer

Borquez was the person who had misrepresented his identity to a court employee. The

jury readily could find Borquez had intended to induce the person on the telephone to

believe that he was not only authorized to use the credit card but, given T.M.’s gender-

neutral first name and his having provided the cardholder’s correct address, that he was

the cardholder.

                                            7
¶14           We next address Borquez’s contention that the material misrepresentation

at the superior court did not result in “actual reliance by the victim.” He maintains that

even assuming, as the state asserted in its answering brief, the credit card company was

the victim, there was no evidence Borquez had made a material misrepresentation to the

company, and that it had relied on that misrepresentation. He insists the evidence only

showed he had fraudulently used the credit card, supporting his conviction on count

three, in violation of A.R.S. § 13-2105, not theft by misrepresentation, in violation of

§ 13-1802(A)(3), alleged in count one.

¶15           Based on the plain language of § 13-1802(A)(3), there is no requirement

that the victim whose property was taken must be the party to whom the

misrepresentation was directly made in order for the victim to have relied on a material

misrepresentation. See State v. Hinden, 224 Ariz. 508, ¶ 9, 233 P.3d 621, 623 (App.

2010) (to interpret meaning of plain and unambiguous statute court must consider its

language, which is “‘the best and most reliable index of a statute’s meaning’”), quoting

State v. Williams, 175 Ariz. 98, 100, 854 P.2d 131, 133 (1993). Rather, the statute

provides that a person commits the offense by “knowingly . . . [o]btain[ing] services or

property of another by means of any material misrepresentation with intent to deprive the

other person of such property or services.” § 13-1802(A)(3). Nor does the definition of

material misrepresentation specify that the representation must be made directly to the

victim whose property or services are taken. See § 13-1801(A)(8). It is sufficient that

the material representation, to the victim or to a third-party, plays an instrumental role in

the wrongful taking of property or services. The state presented sufficient evidence from

                                             8
which reasonable jurors could find Borquez had made material misrepresentations to

induce the superior court to accept a stolen credit card as payment for his court fines.

¶16           Borquez also relies on Schneider where we stated there must be reliance by

the victim to sustain a conviction of theft by false pretenses, the precursor offense under

the former version of § 13-1802(A)(3). 148 Ariz. at 444, 715 P.2d at 300; see also State

v. Mills, 96 Ariz. 377, 381, 396 P.2d 5, 8 (1964), and State v. Sharma, 216 Ariz. 292, ¶ 9,

165 P.3d 693, 696 (App. 2007). In Schneider, the alleged misrepresentations had been

made directly to each victim, who thereafter invested in what was referred to as a “Ponzi”

scheme. Schneider, 148 Ariz. at 443, 715 P.2d at 299. In refusing a requested instruction

on reliance, the trial court found the instruction on material misrepresentation covered the

term. Id. at 444, 715 P.2d at 300. Affirming the conviction on appeal, this court

acknowledged that reliance is an element of the offense, but found essentially the same

instruction that was given here made that clear to the jury. Id. at 444-45, 715 P.2d at 300-

01.

¶17           Schneider does not, however, foreclose application of the statute to a

situation where the misrepresentation was made to a third party who relied on it, thus

resulting in the victim’s loss of property. Here, the jury reasonably could find Borquez

had made material misrepresentations to the superior court’s collections clerk by

identifying himself as Borquez’s father, and by paying the balance on Borquez’s account

with a credit card, thereby representing he had authority to use the card. Borquez’s

misrepresentations were based on his words as well as his conduct. He essentially held

himself out to be his father and the cardholder or, at the very least, his father who had

                                             9
been authorized to use the credit card. Relying on these material misrepresentations, the

clerk conducted the transaction, taking more than $5,000 from the credit card company.

The credit card company relied on the misrepresentations, albeit indirectly, by processing

the transaction the court clerk had conducted.

¶18           Neither party cites Arizona case law that is directly on point, and we have

found none. But cases from other jurisdictions involving a criminal misrepresentation to

a third-party reject the suggestion that a defendant’s misrepresentation must be made to

the person who ultimately suffers a loss. See generally, Bolet v. United States, 417 A.2d

386, 393 (D.C. 1980); State v. McDonald, 534 S.W.2d 650, 652-53 (Tenn. 1976);

Commonwealth v. Kiernan, 201 N.E.2d 504, 515 (Mass. 1964).              For instance, in

Mosteller v. Commonwealth, 279 S.E.2d 380, 381-82 (Va. 1981), the defendant

concocted an elaborate scheme providing fraudulent paperwork to vendors in order to

solicit excessive payments from the state.       The Virginia Supreme Court rejected

defendant’s argument he could not be convicted of fraudulent misstatements to others

that merely set up the scheme. Id. The same reasoning applies here. Borquez made

misrepresentations to the superior court clerk so that his unauthorized use of T.M.’s

credit card would be accepted.

¶19           Finally, although Borquez has not raised the issue on appeal, we find

fundamental error associated with the trial court’s imposition of a criminal restitution

order (CRO) at sentencing. See A.R.S. § 13-805;1 see also Fernandez, 216 Ariz. 545,


       1
       Section 13-805 has been amended since the theft offenses. See 2012 Ariz. Sess.
Laws, ch. 269, § 1; 2011 Ariz. Sess. Laws, ch. 263, § 1 and ch. 99, § 4. We apply the
                                            10
¶ 32, 169 P.3d at 650 (court will not ignore fundamental error when it finds it). In the

sentencing minute entry, the trial court ordered that “all fines, fees, assessments and/or

restitution [be] reduced to a Criminal Restitution Order, with no interest, penalties or

collection fees to accrue while [Borquez] is in the Department of Corrections.” The

imposition of a CRO before the expiration of Borquez’s sentence “‘constitute[d] an

illegal sentence, which is necessarily fundamental, reversible error.’” State v. Lopez, 231

Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz.

531, ¶ 15, 207 P.3d 784, 789 (App. 2009). This remains true even though the court

ordered that the imposition of interest be delayed until after Borquez’s release. See

id. ¶ 5.

                                       Disposition

¶20           For the foregoing reasons, we vacate the CRO. We otherwise conclude

there was substantial evidence supporting the conviction of theft by material

misrepresentation; therefore, we affirm the convictions and the sentences except as noted.


                                            /s/ Michael Miller
                                            MICHAEL MILLER, Judge

CONCURRING:
/s/ Garye L. Vásquez
GARYE L. VÁSQUEZ, Presiding Judge

/s/ Joseph W. Howard
JOSEPH W. HOWARD, Chief Judge

version in effect at the time of the offenses, see 2011 Ariz. Sess. Laws, ch. 263, § 1 and
ch. 99, § 4. State v. Lopez, 231 Ariz. 561, n.1, 298 P.3d 909, 910 n.1 (App. 2013).
                                            11
