286 P.3d 806
Ariz. Ct. App.2012Background
- Breed borrowed a vehicle from L.G. and promised to return it within 1.5 hours; he did not return it as promised.
- After several days, L.G. reported the vehicle stolen to police.
- About a month later, police located Breed and he was charged with theft of means of transportation.
- A jury convicted Breed of unlawful use, a lesser-included offense of theft of means of transportation.
- The trial court sentenced Breed to a presumptive five-year term and Breed timely appealed.
- The issue is whether unlawful use is a lesser-included offense of theft of means of transportation, and the court reviews de novo for lesser-included offenses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is unlawful use a lesser-included offense of theft of means of transportation? | Breed contends unlawful use is not lesser-included. | State contends unlawful use is comprised of elements 1–3 of theft and lacks the knowledge element. | Yes; unlawful use is a lesser-included offense. |
Key Cases Cited
- State v. Cheramie, 218 Ariz. 447 (Ariz. 2008) (defines de novo review and elements-based test for lesser-included offenses)
- State v. Celaya, 135 Ariz. 248 (Ariz. 1983) (lesser-included instruction proper when greater crime contains an extra element)
- State v. Dugan, 125 Ariz. 194 (Ariz. 1980) (greater offense must require a disputed element not required for lesser)
- State v. Larson, 222 Ariz. 341 (Ariz. Ct. App. 2009) (greater offense must include all elements of lesser plus at least one more)
- State v. Griest, 196 Ariz. 213 (Ariz. Ct. App. 2000) (supports lesser-included analysis in similar contexts)
- State v. Kamai, 184 Ariz. 620 (Ariz. Ct. App. 1996) (unlawful use not an element requiring intent to permanently deprive; distinction used in analysis)