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 UNDER ARIZONA RULE OF THE SUPREME COURT 111(c), THIS DECISION IS NOT PRECEDENTIAL AND MAY BE CITED ONLY AS AUTHORIZED BY RULE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

## A RIZONA 

## C OURT OF 

## A PPEALS

D IVISION O NE

STATE OF ARIZONA , Appellee
,

v.

KEVIN ELLIOT GREEN , Appellant

.
N o . 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 C ounsel for Appellee FILED 4-16-2019STATE v. GREEN Decision of the Court

2 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 conviction s and result ing sentence s . For the following r easons, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 On multiple occasion s between March and May of 2013, surveillance video captured Green removing television s from retail store s without paying for them . Green would enter a store without merchandise
, go to the electronics area, load a cart with a t least one television
, return to the store entrance
, and as k an employee for a return sticker

. Green would then place th e sticker on the television and exit the store as if the television had been previously purcha sed

. ¶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, fo und 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 convictio n . Green timely appealed

. We have jurisdiction pursuant to

1 Green was also charged with organized retail theft a nd 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 . H e does not appeal that conviction.STATE v. GREEN Decision of the Court

3 Arizona Revised Statutes (“A.R.S.”) sections 12

- 120.21(A)(1), 13

- 4031,

a nd

- 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 artifice s

. Because G reen 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) ( quot ing 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.” ( E mphasis 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 ev idence.” Robles , 213 Ariz. at 270, ¶ 5 (citing Wall , 212 Ariz. at 3, ¶ 1 3).

¶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 (quot ing 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. Gonzale z , 216 Ariz. 11, 12, ¶ 2 (App. 2007) ).

¶8 Here, Green claims t he s tatutory e lements of t heft b y

m isrepresentation a re n ecessarily i ncluded in the elements of f raudulent

s chemes and a rtifice s

. A f raudulent schemes and artifices offense occursSTATE v. GREEN Decision of the Court

4 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, t heft 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 misrepresent ation 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 T he elements of the proposed lesser crime, theft by misrepresentation, are not contained in the greater crime of fraudulent schemes and artifices. First, t heft by misrepresentation expressly requires a deprivation, see A.R.S. § § 13

- 1801 (A) (4),

- 1802(A)(3) , whereas the benefit received by the defendant f or a fraudulent schemes and artifices offense may not even be of value to another p erson , s ee Henry , 205 Ariz. at 233

- 34, ¶ ¶ 17, 22 (finding the benefit may be the defendant’s own sexual gratification). Second
, fraud by misrepresentation requires th at the service or property obtained must b elong to “ another
, ” whereas fraudulent schemes and artifice s does not

. See A.R.S. § § 13

- 1802(A)(3),

- 2310(A). Thus, the elements required for the offense of t heft b y m isrepresentation are not necessarily elements committed in the offense of fraudulent schemes and artifices

. S ee Wall , 212 Ariz. at 3, ¶ 14

. A nd
, t herefore, theft by misrepresentation is not a lesser

- included offense of fraudulent schemes and a rtifices

. 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 wa s 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 Decision of the Court

5STATE v. GREEN Decision of the Court

6 CONCLUSION

¶12 We affirm Green’s convictions and sentences

.