Court of Appeals of Arizona, Second Division, Department A
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20112027001 Honorable Deborah Bernini, Judge
Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz and Amy Pignatella Cain Attorneys for Appellee
Isabel G. Garcia, Pima County Legal Defender, Scott A. Martin, Attorneys for Appellant
MICHAEL MILLER, 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. 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, 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.
¶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 ...