State v. Hines, 307 P.3d 1034

Hines was indicted in June 2011 for promoting prison contraband by possessing a dangerous instrument, a Class 2 felony under A.R.S. § 13-2505(A)(3) and (F).
At trial, officers found a cellophane-wrapped object in Hines’s sock, described as capable of being a stabbing or cutting device and as commonly used as a weapon in prisons.
The superior court granted a judgment of acquittal on the Class 2 felony after finding no proof the object was a dangerous instrument, but ruled the Class 5 felony of promoting prison contraband by possessing an article endangering safety could be a lesser-included offense.
Hines later argued it was improper to proceed on a lesser-included offense after the indictment, but the court instructed the jury on the Class 5 offense and it found Hines guilty.
Hines was sentenced to a presumptive five-year term based on two prior felony convictions, and he appealed contending the Class 5 felony is not a lesser-included offense of the Class 2 felony.
The appellate court affirmed, holding the Class 5 offense is a lesser-included offense under the elements theory.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is the Class 5 felony a lesser-included offense of the Class 2 felony?	Hines contends Class 5 is not a lesser-included offense.	State contends the Class 5 is encompassed within the greater offense under the unitary definition of contraband.	Yes; Class 5 is a lesser-included offense.

State v. Dugan, 125 Ariz. 194 (Ariz. 1980) (necessity of necessarily included offenses; evidence supports lesser-included status)
State v. Celaya, 135 Ariz. 248 (Ariz. 1983) (elements test for lesser-included offenses)
State v. Freeney, 223 Ariz. 110 (Ariz. 2009) (statutory definitions and multiple crimes via disjunctive lists)
State v. Garcia, 219 Ariz. 104 (Ariz. App. 2008) (interpretation of contraband definition in § 13-2501(1))
State v. Bloomer, 156 Ariz. 276 (Ariz. App. 1987) (proof of contraband and related elements)