                     NOTICE: NOT FOR OFFICIAL PUBLICATION.
 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL
                 AND MAY BE CITED ONLY AS AUTHORIZED BY RULE.




                                    IN THE
             ARIZONA COURT OF APPEALS
                                DIVISION ONE


                       STATE OF ARIZONA, Appellee,

                                        v.

                          DANNY WISE, Appellant.

                             No. 1 CA-CR 13-0888
                              FILED 11-3-2015


           Appeal from the Superior Court in Maricopa County
                        No. CR2009-173845-001
                  The Honorable David B. Gass, Judge

                                  AFFIRMED


                                   COUNSEL

Arizona Attorney General’s Office, Phoenix
By Joseph T. Maziarz
Counsel for Appellee

The Hopkins Law Office, P.C., Tucson
By Cedric Martin Hopkins
Counsel for Appellant
                              STATE v. WISE
                            Decision of the Court



                       MEMORANDUM DECISION

Judge Kenton D. Jones delivered the decision of the Court, in which
Presiding Judge Maurice Portley and Judge John C. Gemmill joined.


J O N E S, Judge:

¶1            Dan Wise appeals his convictions and sentences for eight
counts of fraudulent schemes and twenty-two counts of theft. After
searching the entire record, Wise’s defense counsel has identified no
arguable question of law that is not frivolous. Therefore, in accordance with
Anders v. California, 386 U.S. 738 (1967), and State v. Leon, 104 Ariz. 297
(1969), defense counsel asks this Court to search the record for fundamental
error. Wise was afforded the opportunity to file a supplemental brief in
propria persona, which he elected to do. After reviewing the record, we find
no error. Accordingly, Wise’s convictions and sentences are affirmed.

                 FACTS1 AND PROCEDURAL HISTORY

¶2            Wise was indicted on eight counts of fraud and twenty-two
counts of theft2 based upon events occurring between June 2006 and April
2008 while Wise was engaged as the victims’ accountant. At trial, six
victims, several of whom were family or close friends of Wise, testified
Wise, a certified public accountant, regularly prepared their tax returns,
represented he had filed returns or requests for an extension to file returns
with the Internal Revenue Service and state tax agencies (collectively, the
IRS) between 2006 and 2008, and further represented he had paid estimated
taxes on their behalf. Wise advised the victims of the amount he allegedly

1      We view the facts in the light most favorable to sustaining the jury’s
verdict, with all reasonable inferences resolved against the defendant. State
v. Harm, 236 Ariz. 402, 404 n.2, ¶ 2 (App. 2015) (quoting State v. Valencia, 186
Ariz. 493, 495 (App. 1996)).

2      Counts 1 through 16 alleged theft and Count 17 alleged fraud against
Arthur K. Count 18 alleged fraud and Count 19 alleged theft against
Francesco C. Counts 20, 22, and 24 alleged theft and Counts 21, 23, and 25
alleged fraud against Elissa G. Counts 26 and 27 alleged theft and Count
28 alleged fraud against Carl F. Counts 29 and 30 alleged fraud against Beth
S. and Neil B., respectively.


                                       2
                             STATE v. WISE
                           Decision of the Court

paid on their behalf, and they “reimbursed” him those sums. However, the
IRS was never paid.

¶3           Although amounts varied from victim to victim, the total sum
Wise took was nearly $1 million. Each victim testified he or she primarily
communicated directly with Wise on all issues but occasionally relayed to
or received routine information from Wise’s assistant, and none of the
victims were aware of any other employees or partners working with Wise.

¶4             When confronted by the victims, Wise blamed the IRS for
misplacing or misapplying the funds and promised each victim he would
resolve the issue. After months of delay, Wise was ultimately unable to
document that the checks had ever been sent to or negotiated by the IRS.
At trial, a representative from Wise’s bank testified that none of the checks
he wrote to the IRS for payment of the victims’ taxes had ever been
presented for payment. Wise ultimately paid the full amount owed to the
IRS by Neil B. and Beth S., including interest and penalties, after they
reported his conduct to law enforcement; the other victims, however,
received nothing.

¶5            In mid-2008, three of the victims filed complaints against Wise
with the Arizona State Board of Accountancy. Wise failed to respond to the
complaints in writing as required by law and, in December 2008, consented
to the revocation of his certification.3

¶6            When confronted by the police in early 2009, Wise advised he
had been an accountant for twenty-five years, but retired approximately
two years prior. He stated he had legal issues with a previous business
partner resulting in difficulties with his banking institution.

¶7            Wise testified in his defense at trial. He characterized himself
as an “absentee owner” of an extremely busy accounting firm who, between
2004 and 2008, delegated more and more responsibility to his assistant to
manage both his professional and personal affairs so he could develop his
business and spend more time with his family. As a result, Wise’s assistant
had complete access to his business and personal information, including
personal identification information, accounts, passwords, and the company
checkbook. But, according to Wise’s testimony, as his business continued
to grow, he did not have time to monitor what occurred within the office.


3       A fourth victim filed a complaint in February 2009, after Wise’s
certification had been revoked.



                                      3
                              STATE v. WISE
                            Decision of the Court

¶8             Wise admitted receiving funds from the victims as
“repayment” for their tax liability and acknowledged being ultimately
responsible for what happened within his office, but denied any intent to
steal money and denied knowledge of where the funds were. He testified
his signature was “a scribble” that could have been signed by anyone,
including his assistant, and that he assumed his assistant was performing
the ministerial tasks he assigned including forwarding payment to the IRS
on behalf of the victims as promised and confirming the IRS later negotiated
the checks. Wise testified that only when he closed his business in late 2008
did he realize his files were not well kept and his reliance upon his assistant
may have been misplaced, intimating she could have taken the funds and
hidden from him that the IRS was never paid. In essence, Wise conceded
an error in business judgment amounting only to negligence or malpractice.

¶9             A forensic accountant testified that Wise’s practice of
extending his own funds to pay his clients’ estimated taxes was not illegal
or unethical but expressed concern that Wise had no readily apparent or
effective internal control procedures and placed too much trust in his staff.
Although the expert was unable to exclude Wise as having perpetrated the
scheme, neither could he exclude the assistant or Wise’s partner in a boxing
promotion business that operated from the same office.

¶10            The jury found Wise guilty on all counts. It also found the
State had proven beyond a reasonable doubt that all of the offenses were
committed for pecuniary gain and caused emotional and/or financial harm
to the victims; all but counts 29 and 30 involved the taking of property in
an amount sufficient to be an aggravating circumstance. The trial court
classified the offenses as non-repetitive and non-dangerous and sentenced
Wise to slightly aggravated terms of 7.5 years’ imprisonment on counts 1,
2, and 17 to run concurrently with each other; slightly aggravated terms of
5 years’ imprisonment on counts 3 through 16 to run concurrently with each
other and with counts 1, 2, and 17; slightly aggravated terms of 7.5 years’
imprisonment on counts 18 and 19 to run concurrently with each other and
consecutive to counts 1 through 17; slightly aggravated terms of 7.5 years’
imprisonment on counts 20 through 25 to run concurrently with each other
and consecutive to counts 1 through 19; slightly aggravated terms of 7.5
years’ imprisonment on counts 26 and 28 to run concurrently with each
other and consecutive to counts 1 through 25; a slightly aggravated term of
5 years’ imprisonment on count 27 to run concurrently with counts 26 and
28 and consecutive to counts 1 through 25; and the presumptive term of 5
years’ imprisonment on counts 29 and 30 to run concurrently with each
other and consecutive to counts 1 through 28. Wise timely appealed, and



                                      4
                             STATE v. WISE
                           Decision of the Court

we have jurisdiction pursuant to Arizona Revised Statutes (A.R.S.) sections
12-120.21(A)(1),4 13-4031, and -4033(A)(1).

                              DISCUSSION

I.    Disclosure of Evidence

¶11           Wise argues the State violated his right to due process and
deprived him of a fair trial by losing, destroying, and/or delaying
disclosure of exculpatory and impeachment evidence seized by the
Scottsdale Police Department pursuant to search warrants executed upon
Wise’s home, office, and storage unit, and the office of the U.S. Bankruptcy
Trustee (the Trustee).5 He implicitly contends the trial court erred in: (1)
denying his request for disclosure of 196 bankers’ boxes of documents; and
(2) denying his motion to dismiss for failure to preserve material evidence
located on computers and servers. Wise preserved these issues for appeal,
and we review the trial court’s rulings for an abuse of discretion. State v.
Kevil, 111 Ariz. 240, 243 (1974) (discovery motion); State v. Gerhardt, 161
Ariz. 410, 413 (App. 1989) (motion to dismiss).

      A.     Disclosure of Bankers’ Boxes

¶12           In October 2010, Wise filed a comprehensive request for
disclosure seeking, among other things, certain items impounded during
the execution of the search warrants including cancelled checks, tax returns,
legal and banking documents, client files, bank statements, and hard drives.
The trial court directed briefing in regard to Wise’s request for materials
currently in possession of the Trustee. Instead of providing the relevant
brief, Wise submitted another request for disclosure of the contents of
various bankers’ boxes, which he contended contained bank statements and
tax returns that would verify Wise had made payments to the IRS on behalf
of the victims and client files containing correspondence to the IRS proving
he attempted to rectify discrepancies in payment and lacked a specific
intent to defraud. Wise argued that because the State seized the evidence
and voluntarily “gave it away” to another agency, the State had an
obligation to find the evidence and make it available to the defense.


4     Absent material revisions from the relevant date, we cite a statute’s
current version.

5      At the time of his arrest in May 2009, Wise had been forced into an
involuntary bankruptcy, and all of his property and assets were seized by
the Trustee and placed in receivership for liquidation.


                                     5
                               STATE v. WISE
                             Decision of the Court

¶13           At an evidentiary hearing in April 2011, the State presented
evidence that the Scottsdale Police Department seized 147 bankers’ boxes
of documents from Wise’s storage unit, not knowing the Trustee had taken
possession of the premises prior to execution of the search warrant. The
next day, an additional 49 bankers’ boxes of documents were seized from
the Trustee’s attorney’s office. All 196 boxes were inventoried and, when
the State determined their contents were not relevant to the charges, they
were placed at an off-site location until the Trustee picked them up about
eight months later. The State did not review any of the documents
contained in the boxes and did not rely upon them in returning the
indictments.

¶14           The trial court denied Wise’s request for disclosure finding
the State was not obligated to provide items not relevant to its investigation
and which were no longer in its possession. It further noted that “whatever
access the defendant would have had, had [these items] never been seized,
is exactly the same access that the defendant has now.” The court did,
however, order the State to provide Wise with any information it had
regarding the location and custodian of those materials.

¶15             A trial court has broad discretion in ruling upon disclosure
and discovery matters. See State v. Birdsall, 116 Ariz. 196, 198 (App. 1977)
(citing Kevil, 111 Ariz. at 243); see also Ariz. R. Crim. P. 15.1(g). In reviewing
for an abuse of discretion: “The question is not whether the judges of this
court would have made an original like ruling, but whether a judicial mind,
in view of the law and circumstances, could have made the ruling without
exceeding the bounds of reason.” Associated Indem. Corp. v. Warner, 143
Ariz. 567, 571 (1985) (quoting Davis v. Davis, 78 Ariz. 174, 179 (1954)
(Windes, J., specially concurring)).

¶16           Here, the trial court correctly noted that the State can only
disclose materials in its possession. Ariz. R. Crim. P. 15.1(a), (b). And, the
court offered a solution to allow Wise to gain access to the information he
requested which was apparently successful given that, as early as August
2011, Wise’s attorney reported having “examined most of the needed
boxes” being held in the custody of the Trustee. In July 2012, the
prosecuting attorney reported receiving a copy, from defense counsel, of all
the file materials related to the victims. In September 2012, Wise’s counsel
admitted having received over 65,000 pages of disclosure, and Wise’s
December 2012 request for disclosure was nothing more than a form
document that did not identify any specific materials believed to have been




                                        6
                              STATE v. WISE
                            Decision of the Court

withheld.6 Finally, although the trial court specifically advised Wise it
would entertain requests for orders needed to obtain items necessary to his
defense, Wise did not seek any further assistance from the court, indicating
he had, in fact, received the materials sought. We find no abuse of
discretion.

       B.     Computers and Servers

¶17           In May 2012, Wise filed a motion to dismiss the charges
against him arguing the State had failed to properly preserve information
contained on one of the servers which he believed was “no longer
functional.” Wise argued the server contained information regarding who
had accessed the victims’ electronic files and when and what functions were
performed — for example, writing a check, working on tax forms, or
corresponding with clients or the IRS — that would support his defense
that he lacked specific intent to defraud, and that this information was
impossible to recreate. Additionally, he presented an affidavit of a senior-
level technologist averring the server was “in perfect working order” at the
time it was seized and opining the “crash” would occur only if the server
was improperly shut down, transported, or tampered with.

¶18           The record reflects Wise’s counsel ultimately admitted
receiving the server in September 2012 — a full year before trial — and the
court deemed Wise’s motion moot. Wise’s contention within his
supplemental brief that he was denied access to this material is not
supported by the record and, therefore, provides no basis for relief on
appeal.

II.    Pre-Trial Motions

¶19            Wise next argues the trial court violated his right to a speedy
trial by not ruling on several motions prior to trial. He specifically identifies
a motion challenging the grand jury’s determination of probable cause filed



6       Wise relies upon an April 2015 affidavit in arguing “materials were
missing, lost, in complete disar[r]ay, [or] clearly never copied or opened.”
This affidavit is not contained in the record below, and we do not consider
it. See State v. Schackart, 190 Ariz. 238, 247 (1997) (citations omitted).
Moreover, claims based upon newly discovered evidence are not
appropriate for direct appeal. See Krone v. Hotham, 181 Ariz. 364, 366 (1995)
(citing State v. Scrivner, 132 Ariz. 52, 54 (App. 1982)).



                                       7
                              STATE v. WISE
                            Decision of the Court

in May 2012 and a motion to dismiss, motion to suppress, and motion to
continue trial filed in November 2012.

¶20             The record reflects, however, that the trial court explicitly
denied the May 2012 motion as untimely.7 See Ariz. R. Crim. P. 12.9(b) (“A
motion [challenging grand jury proceedings] may be filed only after an
indictment is returned and no later than 25 days after the certified transcript
and minutes of the grand jury proceedings have been filed or 25 days after
the arraignment is held, whichever is later.”). The November 2012 motions,
although not expressly ruled upon, were submitted the day before trial was
scheduled to begin and likewise untimely and precluded. See Ariz. R. Crim.
P. 16.1(b) (“All motions shall be made no later than 20 days prior to trial.”),
16.1(c) (“Any motion, defense, objection, or request not timely raised under
Rule 16.1(b) shall be precluded, unless the basis therefor was not then
known . . . .”); Foremost-McKesson Corp. v. Allied Chem. Co., 140 Ariz. 108, 113
(App. 1983) (“Although no formal denial of the motion appears in the
record, we presume it was denied by the occurrence of the trial and
verdict.”). We find no error.

III.   Jury Nullification

¶21            Wise also argues the trial court erred in instructing the jury it
was required to follow the law and instructions it was given and thereby
deprived the jury of what Wise errantly perceives to be its common law
right to nullify the law. Wise raises this issue for the first time on appeal,
and we review only for fundamental error. See State v. Allie, 147 Ariz. 320,
326 (1985) (citing State v. Grillz, 136 Ariz. 450, 454 (1983)).

¶22            We recognize the jury’s nullification power is well-
established. See State v. Paredes-Solano, 223 Ariz. 284, 292-93, ¶ 26 (App.
2009) (citing Jones v. United States, 526 U.S. 227, 245-48 (1999)). However,
contrary to Wise’s assertions, “jury nullification is not the legal ‘right’ of
either the defendant or the jury.” Id. at 293, ¶ 26 (citing United States v.
Kerley, 838 F.2d 932, 938 (7th Cir. 1988)). We have held that courts have no
obligation to instruct a jury that it may contravene its duty by ignoring the
law. Id. (citing United States v. Edwards, 101 F.3d 17, 19 (2d Cir. 1996), United


7     Although Wise does not specifically challenge the denial of his
motion challenging the grand jury proceedings, we note that appellate
review has been waived. See Walker v. Superior Court, 191 Ariz. 424, 428,
¶ 22 (App. 1998) (“A special action petition prior to trial is a defendant’s
only avenue for relief for review of the trial court’s denial of a Motion for
Redetermination of Probable Cause.”).


                                       8
                               STATE v. WISE
                             Decision of the Court

States v. Thomas, 116 F.3d 606, 616 n.9 (2d Cir. 1997), and United States v.
Muse, 83 F.3d 672, 677 (4th Cir. 1996)). Where, as here, the instructions
correctly state the law, there is no error.

IV.    Double Jeopardy

¶23            Wise argues ten of the sixteen convictions and sentences for
theft against Arthur K. violated the Double Jeopardy Clause of the U.S.
Constitution because those thefts resulted from only six
misrepresentations. Specifically, he contends the legislature did not intend
“a person who makes one material misrepresentation requesting to be
repaid a sum of money in one payment, [to] be subjected to an infinite
number of charges if the victim, independently, chooses to make numerous
payments instead of one.” A double jeopardy violation is fundamental,
prejudicial error. State v. Siddle, 202 Ariz. 512, 515 n.2, ¶ 7 (App. 2002) (citing
State v. Millanes, 180 Ariz. 418, 421 (App. 1994)).

¶24             The prohibition against double jeopardy protects a defendant
from being prosecuted or punished twice for the same crime. U.S. Const.
amend. V. (“[N]or shall any person be subject for the same offense to be
twice put in jeopardy of life or limb.”); Ariz. Const. art. 2, § 10 (“No person
shall . . . be twice put in jeopardy for the same offense.”); A.R.S. § 13-116
(requiring sentences arising from an act punishable in different ways by
different statutes to be served concurrently). The bar on multiple
punishments is designed to ensure the sentence imposed is confined to the
limits established by the legislature. See State v. Jurden, 237 Ariz. 423, 425,
¶ 5 (App. 2015) (citing Ohio v. Johnson, 467 U.S. 493, 499 (1984)). A
determination of whether one or more offenses occurred during the course
of the defendant’s conduct requires us to interpret the statute to determine
the “allowable unit of prosecution.” See id. at 425-26, ¶¶ 7-8. In doing so,
we look first to the plain language. See id. at 426, ¶ 9.

¶25           As relevant here, a person commits theft if “without lawful
authority, the 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.” A.R.S. § 13-1802(A)(3). On
its face, A.R.S. § 13-1802(A)(3) can be reasonably read to define the
allowable unit of prosecution as either the misrepresentation, or the
deprivation of services or property. We conclude it is the latter for two
reasons.




                                        9
                              STATE v. WISE
                            Decision of the Court

¶26             First, the common element amongst the many types of theft
proscribed by A.R.S. § 13-1802(A) is the wrongful taking of or control over
another’s property. See State v. Mills, 96 Ariz. 377, 381 (1964) (“The gist of
the offense [of theft by false pretenses] . . . is concerned with what the
defrauder obtains.”); see also State v. Tramble, 144 Ariz. 48, 52 (1985) (noting
the legislature’s intent in enacting A.R.S. § 13-1802 was to merge the
common law crimes of larceny, embezzlement, and false pretenses and
“simplify[] prosecution for the unlawful ‘acquisition’ of property belonging
to others.”). Absent a subsequent taking, the mere misrepresentation of a
fact alone is, although undesirable, generally not a criminal act.

¶27           Second, we are not inclined, absent specific legislative
directive, to bestow a benefit upon a defendant who is successful in
procuring services or property from another person on multiple occasions
based upon a single misrepresentation. Even where the victim acts
unreasonably or foolishly, the defendant cannot rightfully benefit from his
own criminal conduct. See, e.g., State v Schneider, 148 Ariz. 441, 445 (App.
1985) (holding victim’s reliance upon defendant’s misrepresentations need
not be reasonable to support a conviction under Arizona law). The
defendant who wrongfully and repeatedly accepts the services or property
of another premised upon a misrepresentation long-since passed bears the
risk of being charged for each occurrence. Wise’s construction, like that
advanced in Schneider:

       [W]ould create the paradoxical result that the most vulnerable
       and unsophisticated could be prey to the likes of appellant.
       White collar criminals would be free to act with impunity as
       long as they choose for their victims, the naive, the greedy or
       the foolhardy. The legislature has not seen fit to exempt this
       class of victims from the theft statute.

Id.

¶28           Had Wise desired to avoid multiple charges, and multiple
convictions, he need simply have refused to accept any further funds.
Instead, he compounded the crime by allowing the victim to continue to act
upon the false information he originally provided, and Wise is rightfully
subject to multiple criminal consequences for having done so.

V.     Right to Effective Counsel

¶29          Wise next argues the trial court erred when it “forced him to
choose between trial counsel . . . who was unprepared and incompetent or
appear pro se and represent himself at trial in a complex case.” Because


                                      10
                               STATE v. WISE
                             Decision of the Court

Wise elected to proceed to trial with counsel, his claim is essentially for
ineffective assistance of counsel which may only be raised via a petition for
post-conviction relief. State v. Spreitz, 202 Ariz. 1, 3, ¶ 9 (2002) (“[I]neffective
assistance of counsel claims are to be brought in Rule 32 proceedings . . .
[and] will not be addressed by appellate courts regardless of merit.”). We
therefore express no opinion as to the merits of this contention.

VI.     Permanent Deprivation

¶30           Wise next argues his convictions and sentences for fraud
against Beth S. and Neil B. were in error because both victims were “made
whole” when Wise complied with their demands to repay the funds owed
to the IRS. Under these circumstances, Wise contends there was insufficient
evidence for the jury to conclude he had a specific intent as to these victims
or received a benefit. We disagree.

¶31            A person is guilty of fraud where he “pursuant to a scheme
or artifice to defraud, knowingly obtains any benefit by means of false or
fraudulent pretenses, representations, promises or material omissions.”
A.R.S. § 13-2310(A). Although the defendant must “benefit” from his
actions, that benefit may be “anything of value or advantage, present or
prospective.” A.R.S. § 13-105(3); see also State v. Henry, 205 Ariz. 229, 235,
¶ 26 (App. 2003) (rejecting defendant’s argument that conviction under
fraud statute was invalid because there was no evidence he actually
obtained the anticipated benefit). And, the return of the benefit previously
obtained through the defendant’s misconduct does not invalidate the
conviction. See State v. Joseph, 20 Ariz. App. 70, 74 (1973) (“The fact that the
offers of repayment were made [a]fter the acts were committed, and only
after the defendant was confronted with the accusations, does not exonerate
him.”); State v. Zappia, 8 Ariz. App. 549, 554 (1968) (concluding sufficient
evidence was presented to sustain theft conviction against defendant who
claimed he was in process of returning a stolen watch when the owner
attacked him to reclaim it), reversed in part on other grounds by State v. Greer,
17 Ariz. App. 162 (1972).

¶32          Contrary to Wise’s assertions, sufficient evidence was
presented for a reasonable jury to conclude Wise made misrepresentations
to Beth S. and Neil B. for the purpose of obtaining a substantial sum of
money, and that Wise was successful in doing so for some period of time.
He remains responsible for those acts regardless of having repaid the
victims when they discovered his misconduct.




                                        11
                               STATE v. WISE
                             Decision of the Court

VII.   Theft as a Lesser-Included Offense of Fraud

¶33            Wise also argues theft, as proscribed in A.R.S. § 13-1802(A)(3),
is a lesser-included offense of fraud, and his convictions for both violate
double jeopardy. Under Arizona law, 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.” State v. Lua, 237 Ariz. 301, 303, ¶ 7 (2015)
(quoting State v. Celaya, 135 Ariz. 248, 251 (1983)); see also State v. Garcia, 235
Ariz. 627, 629-30 (App. 2014) (“[T]he greater offense must require each
element of the lesser offense plus one or more additional elements not
required by the lesser offense.”) (citing State v. Tschilar, 200 Ariz. 427, 436,
¶ 39 (App. 2001), and State v. Foster, 191 Ariz. 355, 357, ¶ 6 (App. 1998)).
Whether one offense is included within another is a question of statutory
interpretation that we review de novo. Lua, 237 Ariz. at 303, ¶ 5 (citing State
v. Geeslin, 223 Ariz. 553, 555, ¶ 9 (2010)).

¶34           As noted above, the offense of fraud is committed where a
person, “pursuant to a scheme or artifice to defraud, knowingly obtains any
benefit by means of false or fraudulent pretenses, representations, promises
or material omissions.” A.R.S. § 13-2310(A). The crime requires a specific
intent to defraud. State v. Via, 146 Ariz. 108, 116 (1985) (citing State v. Haas,
138 Ariz. 413, 418 (1983)). And, as relevant here, “[a] person commits theft
if, without lawful authority, the 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.” A.R.S. § 13-
1802(A)(3).

¶35            Under the “elements test” defined in Lua, theft is not a lesser-
included offense of fraud because theft under subsection (A)(3) requires an
additional element — the intent to deprive — not found within the
definition of fraud. See State v. Duffy, 124 Ariz. 267, 272 (App. 1979)
(separating the intent to defraud from the intent to deprive as elements of the
common law crime of theft by false pretenses) (citing State v. Mills, 96 Ariz.
377, 379 (1964), and State v. Joseph, 20 Ariz. App. 70, 72 (1973)); see also United
States v. Robinson, 147 F.3d 851, 854 (9th Cir. 1998) (rejecting argument that
“intent to defraud” within 18 U.S.C. § 545, governing smuggling of goods
into the United States, is analogous to an “intent to deprive”); compare
A.R.S. § 13-2002(A) (expressly defining mental state required for forgery
conviction as “intent to defraud”), with A.R.S. § 13-1802(A)(1), (3), (7)
(expressly defining mental state required for certain theft convictions as
“intent to deprive”). Because theft is not completely subsumed within
fraud, it is not a lesser-included offense. See Garcia, 235 Ariz. at 630, ¶ 7


                                        12
                              STATE v. WISE
                            Decision of the Court

(noting that, to be a lesser-included offense, the court must determine “the
lesser-included offense is a subset of the alleged greater offense, such that
commission of the greater offense constitutes commission of the lesser
offense”) (citing Tschilar, 200 Ariz. at 435, ¶ 39, and Foster, 191 Ariz. at 357,
¶ 6). To be sure, a defendant can be guilty of fraud without “obtain[ing]
services or property of another,” or possessing any intent to deprive the
victim. See Henry, 205 Ariz. at 235, ¶ 25 (concluding defendant received a
benefit in the form of sexual gratification which was sufficient to support
the fraud conviction even where there was no apparent loss to the victim
that would support a theft under A.R.S. § 13-1802(A)(3)).

¶36         Because theft is not a lesser-included offense of fraud and the
evidence supports Wise’s convictions for both, we find no error.

VIII. Fundamental Error Review

¶37            Further review reveals no fundamental error. See Leon, 104
Ariz. at 300 (“An exhaustive search of the record has failed to produce any
prejudicial error.”). Sufficient evidence was presented upon which the jury
could determine beyond a reasonable doubt that Wise committed the
crimes alleged in the indictment. All of the proceedings were conducted in
compliance with the Arizona Rules of Criminal Procedure. So far as the
record reveals, Wise was represented by counsel at all stages of the
proceedings, save for a brief period in which he knowingly and voluntarily
waived his right to counsel, and was present at all critical stages including
the entire trial and the verdict. The jury was properly comprised of twelve
jurors, and the record shows no evidence of jury misconduct. See Ariz.
Const. art. 2, § 23; A.R.S. § 21-102(A); Ariz. R. Crim. P. 18.1(a). At
sentencing, Wise was given an opportunity to speak, and the trial court
stated on the record the evidence and materials it considered and the factors
it found in imposing sentence. Additionally, the sentence imposed was
within the statutory limits. See A.R.S. § 13-702(D).

                               CONCLUSION

¶38            Wise’s convictions and sentences are affirmed. After the
filing of this decision, defense counsel’s obligations pertaining to Wise’s
representation in this appeal have ended. Defense counsel need do no more
than inform Wise the outcome of this appeal and his future options, unless,
upon review, counsel finds an issue appropriate for submission to our
supreme court by petition for review. State v. Shattuck, 140 Ariz. 582, 584-
85 (1984).




                                       13
                              STATE v. WISE
                            Decision of the Court

¶39            Wise has thirty days from the date of this decision to proceed,
if he wishes, with an in propria persona petition for review. See Ariz. R. Crim.
P. 31.19(a). Upon the Court’s own motion, we grant Wise thirty days from
the date of this decision to file an in propria persona motion for
reconsideration.




                                    :ama




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