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

Not for Publication Rule 111, Rules of the Supreme Court

HOWARD, Chief Judge.

¶1 Kristella Brandenburg was convicted after a jury trial of fraudulent scheme and artifice. The trial court suspended the imposition of sentence and placed Brandenburg on a four-year term of probation, which included as a condition thirty days in jail. On appeal, Brandenburg asserts insufficient evidence supported her conviction.

¶2 In addressing Brandenburg's challenge to the sufficiency of the evidence, we view the facts in the light most favorable to sustaining the verdict and resolve all inferences against her. See State v. Spears, 184 Ariz. 277, 290, 908 P.2d 1062, 1075 (1996). "To set aside a jury verdict for insufficient evidence it must clearly appear that upon no hypothesis whatever is there sufficient evidence to support the conclusion reached by the jury." State v. Arredondo, 155 Ariz. 314, 316, 746 P.2d 484, 486 (1987).

¶3 Brandenburg, who was the victim's neighbor, occasionally helped the elderly victim and his wife with household tasks and had taken the victim's wife "to a few doctors' appointments." In May 2011, Brandenburg told the victim, his wife, and their professional caregiver that the victim had a doctor's appointment and that she would transport him to that appointment. She instead took him to an electronics store. Once inside, she asked the victim if he wanted some water, and he apparently said that he did.1 While he sat near the registers, she went to buy the bottle of water and also obtained three laptop computers. Using the victim's credit card, she had the store clerk ring up the charges—totaling $2,129.59—and brought the victim over to sign the digital pad. Brandenburg then walked the victim back to the car and settled him into the front passenger seat. She then retrieved the computers from the store and placed them in the back seat. She took the victim home, took him inside, and then took the computers from the car and walked home with them.

¶4 The following day, a representative of the electronics store called the victim and his wife to confirm the computer purchases. They were "stunned" and "shocked" to discover Brandenburg had used their credit card to purchase the computers; they cancelled the credit card and reported the incident to police. In an interview, Brandenburg claimed the victim had agreed to purchase a computer for her, but admitted she had "t[aken] advantage [of the victim] and bought the other two [computers]."

¶5 A person is guilty of fraudulent schemes and artifices if she, "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' to perpetrate a fraud." State v. Haas, 138 Ariz. 413, 423, 675 P.2d 673, 683 (1983), quoting State v. Stewart, 118 Ariz. 281, 283, 576 P.2d 140, 142 (App. 1978). Reliance by the victim or any other person is not an element of the offense. § 13-2310(B). Thus, "[s]omething is fraudulent when it is `reasonably calculated to deceive persons of ordinary prudence and comprehension.'" Haas, 138 Ariz. at 423, 675 P.2d at 683, quoting United States v. Netterville, 553 F.2d 903, 909 (5th Cir. 1977). Brandenburg argues the state "failed to present evidence of a scheme that would have deceived a person of reasonable prudence and understanding." She points to her testimony at trial that the value of the purchase was displayed on the signature pad when the victim signed for the purchase and the fact the computers were within the victim's view when he did so. Thus, she asserts, the victim clearly knew he was "buying $2100 worth of merchandise."

¶6 Brandenburg's argument fails for several reasons. First, we reject Brandenburg's contention that the supreme court in Haas intended to impose a limitation on the scope of the statute. It stated that a scheme and artifice to defraud "is not defined according to any technical standard." Id. at 418, 675 P.2d at 678. It also stated the statute generally proscribes conduct "lacking in `fundamental honesty [and] fair play . . . in the general and business life of members of society.'" Id. at 424, 675 P.2d at 684, quoting Blachly v. United States, 380 F.2d 665, 671 (5th Cir. 1967) (alterations in Haas). The term "defraud" as used in the statute is broadly construed "to cover all of the varieties made possible by boundless human ingenuity." Id. The supreme court and the legislature clearly intended that the acts charged here, if proven, would constitute a crime.

¶7 Second, although she is correct that it was uncontradicted, the jury nonetheless was free to reject her testimony that the signature pad showed the total amount of the purchase and therefore could infer the victim was not aware of the value of the purchases he had signed for. See State v. Lowery, 230 Ariz. 536, ¶ 6, 287 P.3d 830, 833 (App. 2012) (jury free to discredit defendant's testimony); see also State v. Clemons, 110 Ariz. 555, 556-57, 521 P.2d 987, 988-89 (1974) ("No rule is better established than that the credibility of the witnesses and the weight and value to be given to their testimony are questions exclusively for the jury."). Similarly, the jury could reject Brandenburg's testimony the computers were within the victim's view when he signed the signature pad. In any event, the jury fairly could conclude that the victim, having been informed only that he was purchasing a bottle of water, would not have reason to believe he was buying three computers merely because they were sitting nearby.

¶8 As we noted above, Brandenburg claimed the victim had agreed to purchase a computer for her. But, even if the jury found Brandenburg's description of events credible, it could find Brandenburg guilty of violating § 13-2310(A). The jury did not have to conclude that the victim would know the price of $2,129.59 purportedly shown on the signature pad was for multiple computers instead of only one or that the presence of three boxes near the register meant that person would know he was purchasing three computers instead of one computer and accessories or other related items.

¶9 Brandenburg further asserts that her statements during her interview with police required the jury to conclude that she merely had "convinced [the victim] to buy more than he had intended" and that "convincing him to spend more than [he] intended is not fraud or misrepresentation." She cites a portion of the interview where she had agreed she had gone "a little overboard" but the victim "knew that he was going to buy computers that day." Even if we agreed Brandenburg's statements suggest, as a whole, she merely had convinced the victim to purchase three computers for her, it did not require the jury to reach that conclusion. Instead, her statements clearly permitted the jury to infer she had obtained the victim's signature for the purchase of three computers despite his belief he was purchasing only one.

¶10 Finally, to the extent Brandenburg asserts the facts of this case are analogous to State v. Johnson, 179 Ariz. 375, 880 P.2d 132 (1994), we disagree. In Johnson, the defendant used a gas card given to him by his employer to purchase gasoline for personal use. 179 Ariz. at 376, 880 P.2d at 133. Our supreme court determined there was no fraud present because the employee had not used pretense in obtaining the card or in purchasing the gasoline; he merely had purchased more than he was authorized. Id. at 379-81, 880 P.2d at 136-38. Here, in contrast, the jury could find Brandenburg induced the victim to purchase the computers by misrepresenting what he was purchasing.

¶11 For these reasons, we conclude the state presented sufficient evidence to support Brandenburg's conviction for fraudulent scheme and artifice. Her conviction and the trial court's imposition of probation are affirmed.

PETER J. ECKERSTROM, Presiding Judge, J. WILLIAM BRAMMER, JR., Judge*, concurring.