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UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL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

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

FILED 4-16-2019
STATE v. GREEN

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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.
STATE v. GREEN

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3

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 lesserincluded 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 
STATE v. GREEN

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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.
STATE v. GREEN

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STATE v. GREEN

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CONCLUSION

¶12 We affirm Green’s convictions and sentences.