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

Not for Publication Rule 111, Rules of the Supreme Court

MEMORANDUM DECISION

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).

Discussion

Jury Instructions

¶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, is defined in A.R.S. § 13-1902(A):

Our supreme court has indicated that § 13-1902 does not apply and a lesser-included theft instruction is required "when the thief has gained peaceable possession of the property and uses no violence except to resist arrest or effect his escape." State v. Celaya, 135 Ariz. 248, 252, 660 P.2d 849, 853 (1983). Thus, Martinez was entitled to an instruction on theft if a jury could reasonably find from the evidence in the record that his conceded use of force1 was not an attempt to retain control of the beer he had in his arms when he exited the store.

¶7 The State's evidence concerning Martinez's actions came from multiple sources. First, the store manager testified she had seen Martinez running out the door with two cases of beer. When she confronted him near his car, he threw a case of beer directly into her stomach, causing her to double over. He then backed the car out of the parking space while she was still behind it, forcing her to jump out of the way to avoid being struck. The cashier testified she saw Martinez back out of the parking spot toward the manager and the cashier's mother—who had tried to assist the manager and had almost been struck herself. Finally, the State introduced videotaped footage of the incident that clearly depicted the sequence of events and corroborated the eye-witness accounts.

¶8 Martinez did not introduce any evidence to contradict the foregoing testimony or undercut the reliability of the videotaped footage of his crime. He nevertheless maintains that a theft instruction was necessary because a rational juror could have concluded "that he had peaceable possession of the beer . . . before he left the scene without it," citing Celaya, 135 Ariz. at 252-53, 660 P.2d at 853-54, where our supreme court held the trial court's omission of a theft instruction constituted reversible error. We find his reliance on Celaya misplaced.

¶9 In Celaya, a narcotics officer was shot and killed during an undercover cocaine buy. Id. at 250-51, 660 P.2d at 851-52. While the officer waited in his car, Celaya exchanged a suitcase purportedly containing cocaine (but in fact containing clothing and old shoes) for a bag of money provided by the officer. Id. at 250, 660 P.2d at 851. After placing the money in his own car, Celaya returned to the officer's car and shot him. Id. According to Celaya and one witness, the officer had voluntarily turned over the money prior to the shooting. Id. at 252, 660 P.2d at 853. Our supreme court stated "robbery is not committed when the thief has gained peaceable possession of the property and uses no violence except to resist arrest or effect his escape." Id. The court concluded that if the jury believed Celaya's version of the facts, it rationally could have found that he gained control of the money without threat of force and that the taking of the property was complete prior to the homicide. Id.

¶10 Unlike in Celaya, no rational view of the evidence presented at Martinez's trial would permit a finding that he peaceably established control over the stolen property and that force was employed only after the taking was complete. Indeed, this characterization runs directly counter to the evidence in the record. In particular, the video showed Martinez approaching the driver's side of a vehicle while being chased by the manager. Martinez paused to place one case of beer on the ground and, as he reached for the door handle with his left hand, he used his right hand to throw the second case of beer at the manager, who was by then at the back of the car. The manager stumbled backward from the blow as Martinez threw the remaining case of beer into the vehicle, jumped in, and rapidly backed the car out of the parking space toward both the manager and the cashier's mother before driving away. The evidence shows that Martinez's transfer of the stolen property to the car—which can hardly be viewed as a separate, "peaceable event"—was the action that ultimately established his possession for purposes of this inquiry, see Celaya, 135 Ariz. at 252, 660 P.2d at 853 (distinguishing between physical custody and control for purposes of possession inquiry).

¶11 But even if a jury could find that Martinez had obtained peaceable possession of the cases of beer inside the store, the evidence did not support a reasonable finding that the taking was complete when he threw the beer at the manager. See id. In reaching this conclusion, we note the difficulty in conjuring a scenario in which a defendant could be found guilty of theft, but not robbery, where he employed force while in physical custody of the property but before the taking was complete. And to find so in this case would suggest that anytime a robber had the stolen property in his hands, he would be entitled to a theft instruction, notwithstanding his use of force in retaining the property. Although we have found no Arizona cases addressing this precise issue, some other jurisdictions have dealt with similar issues. See Buchannon v. State, 652 So.2d 799, 800-01 (Ala. Crim. App. 1994) (rejecting argument that shoplifter apprehended with stolen merchandise only used force against pursuing store employees to effect escape); People v. Estes, 194 Cal.Rptr. 909, 911 (Cal. Ct. App. 1983) (affirming robbery conviction where shoplifter threatened force after being approached by security guard in parking lot); Mack v. Commonwealth, 136 S.W.3d 434, 437-38 (Ky. 2004) (no theft instruction required where purse-snatcher shoved victim to ground as she pursued him); State v. Reynolds, 302 P.3d 830, 832-33 (Utah Ct. App. 2013) (no theft instruction where shoplifter used force to prevent pursuit by store employee). And we reject any interpretation of the escape exemption, see Celaya, 135 Ariz. at 253, 660 P.2d at 854, that conflicts with the statutory definition of robbery. A.R.S. § 13-1902(A) (encompassing within its force requirement the use of force "to prevent resistance to [defendant's] taking or retaining property").

¶12 Thus, because Martinez's conduct was inconsistent with a reasonable finding that he lacked any motive "to coerce surrender of property or to prevent resistance to [his] taking or retaining property" by his use of force, § 13-1902(A), a theft instruction was not required. See, e.g., State v. Routhier, 137 Ariz. 90, 99, 669 P.2d 68, 77 (1983) (defendant's conduct and comments evidence of his state of mind). Martinez's claims that force was never used "for helping him keep the beer" but "only for enabling his escape from the scene," are belied by the evidence, particularly the video footage documenting the critical seconds following Martinez's assault on the manager as he fled with the second case of beer.2 In those seconds, Martinez bent to the ground to retrieve the beer and loaded it into the car before driving away. Had his only motive been to elude apprehension, Martinez would not have wasted precious time moving the stolen property into the car. We therefore agree with the trial court that the evidence did not sustain a reasonable finding that Martinez's use of force lacked the requisite intent for robbery.

¶13 Finally, Martinez contends the jury was precluded from finding that he used force "to take the beer from the victim because she never had the beer in her possession, nor did she ever try to take it from him." As an initial matter, this argument incorrectly assumes that the force element of § 13-1902(A) is not satisfied unless a defendant has either (1) used force to physically wrest the stolen property from the victim or (2) used force to fend off a victim's physical attempt to re-take property. But that is not the law. See, e.g., State v. Rodriguez, 125 Ariz. 319, 321, 609 P.2d 589, 591 (1980) (upholding a robbery conviction where defendant "flashed" gun at victim after peaceably gaining control of money). This argument also improperly focuses on the manager's intent, which is not relevant to our inquiry. In light of the evidence described above that Martinez had at least a partial motive to steal the beer when he used force against the manager, we are satisfied that the trial court did not abuse its discretion in denying Martinez's request for a theft instruction. See § 13-1902(A); State v. Comer, 165 Ariz. 413, 421, 799 P.2d 333, 341 (1990) (describing statute's force element as use of force "accompanied with the intent to take another's property").

Attempted Robbery Instruction

¶14 Martinez also asserts the trial court should have instructed the jury, sua sponte, on attempted robbery "because he was unsuccessful in taking the beer from the parking lot after he threw it at the victim and left the scene." Although he provides little explication of this argument, it appears to be premised on the puzzling contention, noted above, "that he left the beer in the parking lot." Yet while there was evidence in the record that Martinez left without retrieving the case of beer he threw at the manager, as discussed above, no rational jury could find that he failed to consummate the robbery by driving away with the second case of beer. We therefore find no error, fundamental or otherwise, in the trial court's failure to instruct the jury on attempted robbery.

Criminal Restitution Order

¶15 Although Martinez has not raised this issue on appeal, we do find fundamental error in the criminal restitution order (CRO) entered by the trial court at sentencing, necessitating reversal of that order. The court's sentencing order reduced "all fines, fees, assessments and/or restitution" to a CRO, "with no interest, penalties or collection fees to accrue while the defendant is in the Department of Corrections." The imposition of such a CRO before a defendant's sentence has expired "`constitutes an illegal sentence, which is necessarily fundamental, reversible error.'"3 State v. Lopez, 231 Ariz. 561, ¶ 2, 298 P.3d 909, 910 (App. 2013), quoting State v. Lewandowski, 220 Ariz. 531, ¶ 15, 207 P.3d 784, 789 (App. 2009).

Disposition

¶16 For the foregoing reasons, we vacate the CRO entered by the trial court at sentencing but affirm Martinez's convictions and sentences in all other respects.

VIRGINIA C. KELLY, Presiding Judge, PETER J. ECKERSTROM, Judge, concurring.