State of Arizona v. Robert Francisco Borquez
232 Ariz. 484
Ariz. Ct. App.2013Background
- Defendant Robert Borquez lived with his fiancée Z.M. and her mother T.M.; T.M.'s credit card went missing and later showed charges totaling about $5,195 for payment to Pima County Superior Court.
- T.M. did not authorize Borquez to use her card; Borquez admitted to Z.M. he took T.M.’s card and used it to pay his court fines and fees.
- Court collections records showed a caller identifying himself as Borquez’s father provided T.M.’s card number and paid Borquez’s account; the clerk verified the cardholder address and processed the payment.
- Borquez was indicted and convicted of (1) theft by material misrepresentation (A.R.S. § 13-1802(A)(3)), (2) theft of a credit card, and (3) fraudulent use of a credit card; he appealed the theft-by-misrepresentation conviction as unsupported by evidence of a material misrepresentation and victim reliance.
- The court reviewed whether § 13-1802(A)(3) requires the misrepresentation be made directly to the person who suffered the loss or whether a misrepresentation to a third party that is instrumental in causing the loss suffices.
- Trial court imposed concurrent mitigated sentences and a criminal restitution order (CRO); the Court of Appeals affirmed the convictions but vacated the CRO as an illegal sentence when imposed before sentence expiration.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether there was sufficient evidence of a material misrepresentation | State: Borquez or an associate misrepresented identity/authority to the court clerk, which was instrumental in obtaining payment from the card issuer | Borquez: No direct evidence he made the call or misrepresented to the clerk; exhibits and witness lacked personal knowledge | Held: Sufficient circumstantial evidence; admissions plus clerk notes permit reasonable inference Borquez caused the misrepresentation |
| Whether statute requires misrepresentation be made to the victim who suffered the loss | State: §13-1802(A)(3) does not require the victim be the recipient; misrepresentation to a third party instrumental in the taking suffices | Borquez: Reliance by the victim is required; Schneider and related cases require victim reliance on false pretenses | Held: Reliance by the ultimate victim need not be direct; misrepresentation to a third party that led to the loss satisfies the statute |
| Whether fraudulent-use charge, not theft-by-misrepresentation, was the proper conviction | State: The misrepresentation induced the payment so theft-by-misrepresentation is proper in addition to fraudulent-use | Borquez: Evidence only supports fraudulent use of the card (A.R.S. §13-2105), not theft by false pretenses | Held: Both convictions can stand; evidence supports theft by material misrepresentation as pleaded |
| Whether criminal restitution order (CRO) was properly imposed at sentencing | State: CRO imposed to satisfy fines/fees/restitution | (Not raised by defendant on appeal) | Held: CRO imposed before sentence expiration was illegal/fundamental error and vacated |
Key Cases Cited
- State v. Schneider, 148 Ariz. 441 (App. 1985) (discusses reliance element in false-pretenses context)
- State v. Hinden, 224 Ariz. 508 (App. 2010) (statutory interpretation: plain language controls)
- State v. Dixon, 127 Ariz. 554 (App. 1980) (§13-1802 defines single theft offense with multiple means)
- State v. Lopez, 231 Ariz. 561 (App. 2013) (imposition of CRO before sentence expiration is illegal/fundamental error)