Court of Appeals of Arizona, Second Division, Department B
Not for Publication Rule 111, Rules of the Supreme Court
APPEAL FROM THE SUPERIOR COURT OF PIMA COUNTY Cause No. CR20121612001 Honorable Richard S. Fields, Judge
Thomas C. Horne, Arizona Attorney General, Joseph T. Maziarz and Diane Leigh Hunt Attorneys for Appellee.
Nicole Farnum Attorney for Appellant.
PHILIP G. ESPINOSA, Judge.
¶1 Eduardo Martinez was charged with robbery and two counts of endangerment in connection with events that occurred at a local store in January 2012. He was convicted on all counts, and the trial court imposed presumptive and concurrent sentences totaling ten years' imprisonment. On appeal from his convictions and sentences, Martinez argues his due process and fair trial rights were denied when the court failed to instruct the jury on the lesser-included offenses of theft and attempted robbery. For the following reasons, we affirm Martinez's convictions and sentences but vacate the criminal restitution order entered by the court at sentencing.
Factual and Procedural Background
¶2 "On appeal, we view the facts in the light most favorable to upholding the verdict and resolve all inferences against the defendant." State v. Klokic, 219 Ariz. 241, n.1, 196 P.3d 844, 845 n.1 (App. 2008). On the night of January 7, 2012, Martinez drove a friend's car to a drug store, where he picked up two cases of beer and presented them to the cashier at the front of the store, as if for payment. As the cashier began to ring up the purchase, however, Martinez pulled the beer off the counter and ran out the front door into the parking lot. As he neared the driver's side of a parked vehicle, the store manager, who had been outside, ran towards the car and Martinez threw one of the cases of beer at her, hitting her in the stomach. He then picked up the other case of beer, which he had set down on the pavement, and put it in the car. Upon hurriedly backing out of the parking space, Martinez nearly struck the manager and a bystander. He was apprehended several months later, and in a police interview admitted taking the cases of beer without paying for them.
¶3 Following a jury trial, Martinez moved for a new trial based on the court's failure to instruct the jury on theft as the lesser offense of robbery. The court denied the motion, and this appeal followed. We have jurisdiction over the appeal pursuant to A.R.S. §§ 12-120.21, 13-4031, and 13-4033(A)(1).
¶4 On appeal, Martinez contends the trial court erred by failing to instruct the jury regarding the lesser offenses of both theft and attempted robbery. We typically review the trial court's denial of a requested jury instruction for abuse of discretion. See, e.g., State v. Price, 218 Ariz. 311, ¶ 21, 183 P.3d 1279, 1284 (App. 2008). However, because Martinez failed to request an attempted robbery instruction at trial, we apply a fundamental error standard to that claim. See Ariz. R. Crim. P. 21.3; State v. Gendron, 168 Ariz. 153, 154, 812 P.2d 626, 627 (1991); State v. Whittle, 156 Ariz. 405, 406, 752 P.2d 494, 495 (1988).
¶5 A court must instruct the jury on a lesser-included offense of the crime charged if the evidence supports the requested instruction. State v. Vickers, 159 Ariz. 532, 542, 768 P.2d 1177, 1187 (1989); see also Ariz. R. Crim. P. 23.3 (trial court must instruct jury on all offenses "necessarily included in the offense charged"). This rule "is designed to prevent a jury from convicting a defendant of a crime, even if all of its elements have not been proved, simply because the jury believes the defendant committed some crime." State v. Wall, 212 Ariz. 1, ¶ 16, 126 P.3d 148, 151 (2006) (emphasis added). However, a lesser-included instruction is not required merely because a jury could disbelieve all the evidence of the greater charge except the elements of the lesser. State v. Bolton, 182 Ariz. 290, 309, 896 P.2d 830, 849 (1995). Such an instruction is necessary only where a jury could "'rationally fail to find the distinguishing element of the greater offense.'" State v. Krone, 182 Ariz. 319, 323, 897 P.2d 621, 625 (1995), quoting State v. Detrich, 178 Ariz. 380, 383, 873 P.2d 1302, 1305 (1994). Stated simply, "[t]he evidence must support the lesser included offense." Bolton, 182 Ariz. at 309, 896 P.2d at 849. Theft Instruction
¶6 Under Arizona law, an individual commits theft by knowingly "[c]ontrol[ling] property of another with the intent to deprive the other person of such property." A.R.S. § 13-1802(A)(1). Robbery, on the other hand, ...