THIS DECISION DOES NOT CREATE LEGAL PRECEDENT AND MAY NOT BE CITED EXCEPT AS AUTHORIZED BY APPLICABLE RULES. See Ariz. R. Supreme Court 111(c); ARCAP 28(c); Ariz. R. Crim. P. 31.24.

MEMORANDUM DECISION

PETER B. SWANN, Presiding Judge.

¶1 Kenneth Laron Jones ("Defendant") appeals from his conviction for Sale or Transportation of Narcotic Drugs or Offer to Sell Narcotic Drugs, a class 2 felony, on the ground that the trial court committed fundamental error by failing to instruct the jury on two lesser included charges. Because the requested instructions were not required, we affirm.

FACTS AND PROCEDURAL HISTORY

¶2 In April 2008, an undercover Chandler Police detective (D.S.) arranged to buy cocaine from a man called "Q" through a confidential informant. Per Q's instructions, D.S. and the informant waited in a four-door pickup truck at the designated meeting place, as additional Chandler police watched from unmarked vehicles nearby. Two cars arrived and parked, a blue car driven by Defendant and a gold car. Defendant got out of the blue car and came over to D.S.'s truck. After a short conversation, Defendant walked over to the gold car, obtained a plastic drinking cup, and then returned to the truck and got inside it at D.S.'s request. Shortly thereafter, D.S. signaled to the other undercover officers, and they moved in and arrested Defendant. Accounts of what occurred during the meetings at the truck differ.

¶3 D.S. testified as follows: Defendant asked D.S. to give him the money; D.S. refused, and just showed it to him. Defendant again asked for the money, and D.S. again refused, telling Defendant to "[g]et the stuff and bring it over here." Defendant then left the side of the truck for a few minutes. When Defendant returned carrying a plastic drinking cup, D.S. told him to get in the backseat of the truck. Once in the truck, Defendant produced two small plastic bags from his pants pockets and larger bags from the plastic drinking cup; Defendant claimed the smaller bags contained samples of what was in the larger bags. After D.S. examined the bags, he asked Defendant if the contents had been cut, and Defendant said they had not. D.S. then began to pay Defendant, counting out the money. As he did so, the other police officers moved in to make the arrests. D.S. saw no indication that Defendant recognized him. The parties stipulated that one of the bags contained 863 milligrams of cocaine, and that the other bags did not contain any narcotics.

¶4 Defendant testified he had come to the meeting to collect money to compensate Q and himself for property that the informant had stolen from them. Defendant claimed he recognized D.S. as a police officer when he was inside the truck. He claimed that there was only ice and soda inside the plastic cup. He denied having brought the samples of cocaine, and denied that D.S. had shown him any money.

¶5 After his arrest, Defendant was interviewed, and a recording of that interview was introduced as evidence and played for the jury. During the interview, Defendant denied knowing D.S. or the informant. He said he was just giving someone a ride, was "just told to get the money," and did not "know nothing about nothing." Before D.S. was brought into the interview room, Defendant did not indicate that he had recognized D.S. or knew he was a police officer.

¶6 On Count 1, the court instructed the jury on the offense of offer to sell narcotic drugs, or alternatively sale or transporting of narcotic drugs. The court also instructed the jury on the lesser included offense of possession of narcotic drugs for sale. The jury found Defendant guilty of sale or transportation of narcotic drugs or offer to sell narcotic drugs. Defendant timely appeals, and we have jurisdiction under A.R.S. §§ 12-120.21(A), 13-4032 and -4033.

DISCUSSION

¶7 Defendant argues that the trial court erred by not giving jury instructions on the lesser included offenses of facilitation or attempt. We review a trial court's refusal to give a jury instruction for an abuse of discretion. State v. Wall, 212 Ariz. 1, 3, ¶ 12, 126 P.3d 148, 150 (2006). But where a jury instruction was not requested, we review the failure to give that instruction for fundamental error. State v. Valenzuela, 194 Ariz. 404, 405, ¶ 2, 984 P.2d 12, 13 (1999).

¶8 Whether an offense is a lesser included offense is a question of law we review de novo. State v. Cheramie, 218 Ariz. 447, 448, ¶¶ 6-8, 189 P.3d 374, 375 (2008). "To constitute a lesser-included offense, the 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." Id. at 448-49, ¶ 9, 189 P.3d at 375-76 (citation omitted). The purpose of requiring a lesser included offense instruction is to reduce the risk of a jury "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." Wall, 212 Ariz. at 4, ¶ 16, 126 P.3d at 151. But the trial court is only required to give a lesser included offense instruction if the evidence would allow a rational jury to find "that the evidence is sufficient to support a conviction on the lesser offense." Id. at ¶ 18. If the jury could only find the defendant guilty of the offense charged or completely innocent, depending on what evidence it believed, then the lesser included offense instruction is not required. State v. Bearup, 221 Ariz. 163, 170, ¶ 29, 211 P.3d 684, 691 (2009).

¶9 "Facilitation is not a necessary included offense of unlawful sale since the sale can be committed without necessarily committing facilitation." State v. Politte, 136 Ariz. 117, 121, 664 P.2d 661, 665 (App. 1982). Therefore, the court was not required to instruct the jury on facilitation.

¶10 Under Arizona law,

A.R.S. § 13-1001(A).

¶11 We conclude that the evidence does not support the lesser included offense of attempt. If the testimony of D.S. is believed, Defendant participated in the sale of cocaine to D.S. If the testimony of Defendant is believed, Defendant was never involved in any transaction involving cocaine, nor did he believe he was involved such a transaction. On the evidence presented, a reasonable jury could either find that Defendant was arrested during the actual sale of cocaine or that he had no connection to any drug transaction. It could not have found that Defendant engaged in conduct that was not the sale, transportation or offer for sale of cocaine, but would have been if the circumstances had been as Defendant believed. Nor could it have found on this record that Defendant took steps towards or intended to aid others in the commission of the offense unless they also found he was guilty of the offense itself. Therefore, the jury instruction on attempt was not necessary. Bearup, 221 Ariz. at 170, ¶ 29, 211 P.3d at 691.

CONCLUSION

¶12 Because facilitation is not a lesser included offense of the crime with which Defendant was charged, and because we find that the evidence does not support an instruction for a lesser included offense of attempt, we hold that the trial court did not err by declining to instruct the jury on those offenses. We therefore affirm.

PATRICK IRVINE, Judge, MAURICE PORTLEY, Judge Concurring.