NOT FOR PUBLICATION

THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES See Ariz. R. Sup. Ct. 111(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

ESPINOSA, Judge.

¶1 After a jury trial, Michael Saaby was convicted of third-degree burglary and theft. The trial court imposed a 4.5-year term of imprisonment for the burglary conviction and time served on the theft. On appeal, Saaby argues the court erred by denying his request for a jury instruction providing shoplifting as a lesser-included offense of third-degree burglary. He also challenges the court's imposition of a criminal restitution order (CRO) as exceeding its sentencing authority. For the following reasons, we affirm in part and vacate in part.

Factual and Procedural Background

¶2 When a party appeals a trial court's refusal to give a requested instruction, we review the evidence in the light most favorable to the party requesting the instruction. State v. King, 225 Ariz. 87, ¶ 13, 235 P.3d 240, 243 (2010); Gemstar Ltd. v. Ernst & Young, 185 Ariz. 493, 503, 917 P.2d 222, 232 (1996). One evening in January 2011, Saaby and two other men entered a convenience store. Saaby asked the sales clerk for cigar wrappers and gave her his identification card, which the clerk retained. After the clerk set the wrappers on the counter, Saaby took them and ran out the door. One of Saaby's friends told the clerk he would pay for the wrappers.

¶3 A few minutes later, Saaby returned to the store to retrieve his identification card and, when the clerk refused to give it to him, he went behind the sales counter to get it. The clerk approached him and he pushed her; he then took several bottles of liquor and left the store.

¶4 Saaby was subsequently charged with burglary in the third degree and robbery. At trial, he testified he had understood one of his friends was to purchase the cigar wrappers and that he had not seen any indication he was not permitted behind the sales counter. At the conclusion of the two-day trial, the jury found him guilty of third-degree burglary, and theft as a lesser-included offense of robbery. Taking into account a prior historical felony conviction, the trial court sentenced him as described above. We have jurisdiction over this appeal pursuant to A.R.S. §§ 12-120.21(A)(1), 13-4031, and 13-4033(A).

Jury Instruction

¶5 Saaby asserts the trial court denied his due process right to a fair trial when it rejected his request for a jury instruction providing shoplifting as a lesser-included offense of third-degree burglary. A court must instruct the jury on a lesser-included offense if requested and if the instruction is supported by the evidence. State v. Robles, 213 Ariz. 268, ¶ 5, 141 P.3d 748, 750 (App. 2006). We review the court's refusal to so instruct the jury for an abuse of discretion, State v. Price, 218 Ariz. 311, ¶ 21, 183 P.3d 1279, 1284 (App. 2008), but whether an offense is a lesser-included offense of another greater offense is a question of law that we review de novo, State v. Cheramie, 218 Ariz. 447, ¶ 8, 189 P.3d 374, 375 (2008); see also State v. Breed, 230 Ariz. 462, ¶ 4, 286 P.3d 806, 806 (App. 2012).

¶6 As the state correctly observes, two tests are used to determine whether an offense is a lesser-included one, the elements test and the charging documents test. State v. Larson, 222 Ariz. 341, ¶ 7, 214 P.3d 429, 431 (App. 2009). Under the elements test, a lesser-included offense is one that "by its very nature" is "always a constituent part of the greater offense." State v. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 12, 965 P.2d 94, 97 (App. 1998). Put another way, courts inquire whether the greater offense, as described by statute, can be committed without necessarily committing the lesser. Id.; see also State v. Celaya, 135 Ariz. 248, 251, 660 P.2d 849, 852 (1983) (lesser-included offense "must be composed solely of some but not all of the elements of the greater crime so that it is impossible to have committed the crime charged without having committed the lesser one").

¶7 In Arizona, an individual commits burglary in the third degree by "[e]ntering or remaining unlawfully in or on a nonresidential structure or in a fenced commercial or residential yard with the intent to commit any theft or any felony therein." A.R.S. § 13-1506(A)(1). A person commits shoplifting when, "while in an establishment in which merchandise is displayed for sale, [a] person knowingly obtains such goods of another with the intent to deprive that person of such goods" by removing "any of the goods from the immediate display or from any other place within the establishment without paying the purchase price." A.R.S. § 13-1805(A)(1).

¶8 The definition of shoplifting specifies that the act occur "in an establishment in which merchandise is displayed for sale" and that the individual fail to "pay[] the purchase price." Comparison of the two statutory provisions makes clear that burglary in the third degree can be committed without committing the crime of shoplifting. As noted by the trial court, whereas "shoplifting must occur in a shop," "burglary in the third degree could occur in somebody's horse trailer or storage locker"; and thus, "[one] can commit third degree burglary without necessarily committing shoplifting." See State v. Embree, 130 Ariz. 64, 66, 633 P.2d 1057, 1059 (App. 1981) (noting possibility of committing burglary without meeting requirements of shoplifting statute). Shoplifting is therefore not a lesser-included offense of burglary in the third degree under the elements test.

¶9 Even if a crime is not a lesser-included offense under the elements test, it nevertheless may be so under the charging-documents test.1 Larson, 222 Ariz. 341, ¶ 13, 214 P.3d at 431. Such is the case if "`the charging document describes the lesser offense even though [it] would not always form a constituent part of the greater offense.'" Id., quoting In re Jerry C., 214 Ariz. 270, ¶ 11, 151 P.3d 553, 556-57 (App. 2007). Stated differently, courts inquire whether the greater offense, as charged, can be committed without necessarily committing the lesser offense. Chabolla-Hinojosa, 192 Ariz. 360, ¶ 12, 965 P.2d at 97. In applying this test, "courts have focused on language that explicitly alleged the defendant's conduct or mental state" when finding that lesser offenses had been described by the charging document. State v. Garcia, 176 Ariz. 231, 233, 860 P.2d 498, 500 (App. 1993). Thus, to qualify under the charging document test, the indictment here must set out facts that describe burglary in the third degree in a way that also indicates shoplifting. See id.

¶10 Saaby's indictment stated: "On or about the 29th day of January, 2011, Michael Thomas Saaby committed burglary in the third degree of a non-residential structure, belonging to Circle K" in violation of the third-degree burglary statute, § 13-1506. In his reply brief, Saaby argues that because the indictment charged burglary in the third degree of a Circle K, "the common sense case facts and the facts known to both parties, were that this was not a shed, barn or non-residential commercial yard, but a Circle K." Therefore, he asserts, the "common sense approach" of State v. Magana, 178 Ariz. 416, 874 P.2d 973 (App. 1994), is appropriate.

¶11 In Magana, this court determined that reckless driving qualified as a lesser-included offense of second-degree murder when the charging document contained language implying an automobile had been used to perpetrate the offense, i.e., the indictment identified the location of the offense as "Milepost 240.9 on Highway 95." 178 Ariz. at 418, 874 P.2d at 975. This court noted that the indictment did not mention that any instrument "other than the automobile was involved in the crime" and that "[c]ommon sense tells us that the indictment must be read in light of the facts known by both parties." Id. Thus, the indictment implied that a car was involved in the crime. Here, the indictment alleged a burglary occurring at a building owned by Circle K, but does not specify the building was a convenience store as opposed to a corporate warehouse or other facility, nor does it indicate or imply that the offense committed was shoplifting or otherwise describe the crime of shoplifting. See Robles, 213 Ariz. 268, ¶ 9, 141 P.3d 748, 751 (in applying charging documents test, court only examines facts and inferences, direct or implied, contained in indictment). And as the state observes, "the indictment does not imply a completed theft of any kind."

¶12 To find any indication of shoplifting here, evidence beyond the indictment must be considered, which courts do not do in applying the charging documents test.2 State v. Brown, 195 Ariz. 206, ¶ 10, 986 P.2d 239, 242 (App. 1999) ("it is the charging document and not the evidence that determines" whether the charging documents test has been met). As noted in Robles, this court will not read Magana as requiring "consideration of all facts ultimately contained in the record in determining whether a lesser-included-offense instruction was required." 213 Ariz. 268 ¶ 9, 141 P.3d 748, 751 (App. 2006).3 Because shoplifting is neither by its nature always a constituent part of third-degree burglary nor described in the indictment here, the trial court did not err in refusing to instruct the jury on that offense.

Criminal Restitution Order

¶13 A portion of the trial court's combined sentencing minute entry reduced "all fines, fees, assessments and/or restitution" to a CRO. Saaby did not object to the order at sentencing but we have previously held that it is fundamental error to impose such a CRO before the expiration of a defendant's sentence. See State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013). Therefore, that part of the sentencing order relevant to the case at issue,4 cannot stand.5

Disposition

¶14 For the foregoing reasons, the CRO is vacated, but Saaby's convictions and sentences are otherwise affirmed.