                     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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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.

                     KEVIN ELLIOT GREEN, Appellant.

                             No. 1 CA-CR 18-0138
                              FILED 4-16-2019


           Appeal from the Superior Court in Maricopa County
                        No. CR2013-429924-001
                  The Honorable Jose S. Padilla, Judge

                                  AFFIRMED


                                   COUNSEL

Janelle A. McEachern, Attorney at Law, Chandler
By Janelle A. McEachern
Counsel for Appellant

Arizona Attorney General’s Office, Phoenix
By Eliza Ybarra
Counsel for Appellee
                             STATE v. GREEN
                            Decision of the Court



                       MEMORANDUM DECISION

Judge James P. Beene delivered the decision of the Court, in which
Presiding Judge David D. Weinzweig and Judge Kent E. Cattani joined.


B E E N E, Judge:

¶1           Kevin Elliott Green (“Green”) appeals from his fraudulent
schemes and shoplifting convictions and resulting sentences. For the
following reasons, we affirm.

                 FACTS AND PROCEDURAL HISTORY

¶2            On multiple occasions between March and May of 2013,
surveillance video captured Green removing televisions from retail stores
without paying for them. Green would enter a store without merchandise,
go to the electronics area, load a cart with at least one television, return to
the store entrance, and ask an employee for a return sticker. Green would
then place the sticker on the television and exit the store as if the television
had been previously purchased.

¶3             Green was charged with five counts of organized retail theft,
a Class 4 felony, and one count of fraudulent schemes and artifices, a Class
2 felony.1 A jury convicted Green of the fraudulent schemes and artifices
charge and, for each theft count, found Green guilty of the lesser-included
charge of shoplifting, which resulted in five shoplifting convictions—four
Class 4 felonies and one misdemeanor.

¶4            Green was sentenced to a presumptive five-year term for each
felony shoplifting conviction, a presumptive 15.75-year term for the fraud
conviction, and a six-month jail term for the misdemeanor shoplifting
conviction. Green timely appealed. We have jurisdiction pursuant to




1      Green was also charged with organized retail theft and fraudulent
schemes and artifices related to a June 2013 removal of clothing from
another store. The fraudulent schemes and artifices charge was dismissed;
however, Green was convicted of the lesser-included misdemeanor of
shoplifting. He does not appeal that conviction.


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                             STATE v. GREEN
                            Decision of the Court

Arizona Revised Statutes (“A.R.S.”) sections 12-120.21(A)(1), 13-4031,
and -4033(A)(1).

                                DISCUSSION

¶5             Green claims the superior court erred by denying his
requested jury instruction on theft by misrepresentation as a lesser-
included offense of fraudulent schemes and artifices. Because Green
requested the instruction, we review the superior court’s denial for abuse
of discretion. See State v. Hargrave, 225 Ariz. 1, 11-12, ¶ 33 (2010). “The
decision to refuse a jury instruction is within the trial court’s discretion, and
this court will not reverse it absent a clear abuse of that discretion.” State v.
Robles, 213 Ariz. 268, 270, ¶ 4 (App. 2006) (quoting State v. Bolton, 182 Ariz.
290, 309 (1995)).

¶6            Rule 21.4(a)(1) of the Arizona Rules of Criminal Procedure
provides that “the court must submit forms of verdicts to the jury for . . . all
offenses necessarily included in the offense charged.” (Emphasis added.) An
offense is necessarily included and requires a jury instruction “only when
[the offense] is lesser included and the evidence is sufficient to support
giving the instruction.” State v. Wall, 212 Ariz. 1, 3, ¶ 14 (2006). “A jury
must be instructed on lesser-included offenses if such an instruction is
requested and supported by the evidence.” Robles, 213 Ariz. at 270, ¶ 5
(citing Wall, 212 Ariz. at 3, ¶ 13).

¶7            “An offense is ‘lesser included’ when the ‘greater offense
cannot be committed without necessarily committing the lesser offense.’”
Wall, 212 Ariz. at 3, ¶ 14 (quoting State v. Dugan, 125 Ariz. 194, 195 (1980)).
Our analysis is limited to the elements of the two relevant offenses as set
forth in the plain language of Arizona’s criminal code. See State v. Ortega,
220 Ariz. 320, 324-25, ¶ 13 (App. 2008); State v. Garcia, 219 Ariz. 104, 106, ¶ 6
(App. 2008). “The elements of the crime as prescribed in the statute
determine whether a crime is a lesser included offense of a greater offense,
not the facts of a given case.” State v. Laffoon, 125 Ariz. 484, 487 (1980).
“Often facts may support another lesser conviction but if not charged in the
indictment, the lesser offense may not be found.” Id. (citation omitted).
“Statutory interpretation is a question of law we review de novo.” State v.
Cope, 241 Ariz. 323, 324, ¶ 5 (App. 2016) (citing State v. Gonzalez, 216 Ariz.
11, 12, ¶ 2 (App. 2007)).

¶8          Here, Green claims the statutory elements of theft by
misrepresentation are necessarily included in the elements of fraudulent
schemes and artifices. A fraudulent schemes and artifices offense occurs


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                             STATE v. GREEN
                            Decision of the Court

when 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). “A
scheme or artifice is some plan, device, or trick [used] to perpetrate a fraud,”
State v. Henry, 205 Ariz. 229, 232, ¶ 12 (App. 2003) (quoting State v. Haas, 138
Ariz. 413, 423 (1983)), and implies “numerous acts may be committed,”
State v. Suarez, 137 Ariz. 368, 373 (App. 1983).

¶9               Conversely, theft by misrepresentation occurs when “[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) (emphasis added). “‘Deprive’ means
to withhold the property interest of another either permanently or for so
long a time period that a substantial portion of its economic value or
usefulness or enjoyment is lost . . . .” A.R.S. § 13-1801(A)(4). “Intent to
deprive” requires that “a person’s objective is to cause that result or to
engage in that conduct” of deprivation. A.R.S. §§ 13-105(10)(a), -1801(A)(4).

¶10            The elements of the proposed lesser crime, theft by
misrepresentation, are not contained in the greater crime of fraudulent
schemes and artifices. First, theft by misrepresentation expressly requires
a deprivation, see A.R.S. §§ 13-1801(A)(4), -1802(A)(3), whereas the benefit
received by the defendant for a fraudulent schemes and artifices offense
may not even be of value to another person, see Henry, 205 Ariz. at 233-34,
¶¶ 17, 22 (finding the benefit may be the defendant’s own sexual
gratification). Second, fraud by misrepresentation requires that the service
or property obtained must belong to “another,” whereas fraudulent
schemes and artifices does not. See A.R.S. §§ 13-1802(A)(3), -2310(A). Thus,
the elements required for the offense of theft by misrepresentation are not
necessarily elements committed in the offense of fraudulent schemes and
artifices. See Wall, 212 Ariz. at 3, ¶ 14. And, therefore, theft by
misrepresentation is not a lesser-included offense of fraudulent schemes
and artifices. See Ariz. R. Crim. P. 21.4(a)(1); Wall, 212 Ariz. at 3, ¶ 14;
Laffoon, 125 Ariz. at 487 (finding lesser-included offenses are determined by
statutory elements not the facts of a given case).

¶11           Because theft by misrepresentation is not necessarily included
in the greater offense, a jury instruction was not required, and we need not
address whether sufficient evidence was provided to support the lesser
offense. See Ariz. R. Crim. P. 21.4(a)(1); Wall, 212 Ariz. at 3, ¶ 14. The
superior court did not abuse its discretion in denying the requested jury
instruction.


                                       4
 STATE v. GREEN
Decision of the Court




         5
                   STATE v. GREEN
                  Decision of the Court

                      CONCLUSION

¶12   We affirm Green’s convictions and sentences.




                AMY M. WOOD • Clerk of the Court
                FILED: AA




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