State v. Kamai
In State v. Kamai, 184 Ariz. 620, 911 P.2d 626 (App. 1995), the Court considered whether unlawful use of a means of transportation is a lesser-included offense of theft of an automobile.
The statute under consideration stated that unlawful use of a means of transportation occurs when, "without intent permanently to deprive," a person knowingly takes unauthorized control over another's means of transportation. 184 Ariz. at 622, 911 P.2d at 628.
The phrase "without intent permanently to deprive" did not appear, though, in the relevant theft statute, which prohibited controlling property of another "with the intent to deprive him of such property." Id.
The Court held that the phrase "without intent to permanently deprive" in the unlawful use statute did not "describe an element of the crime which the state must prove." Id.
Instead, it simply distinguished unlawful use from the offense of auto theft. Id.
By way of analogy, we noted that first degree murder is homicide "with premeditation." Id. at 623, 911 P.2d at 629.
Second-degree murder, a lesser-included offense, is homicide "without premeditation." Id.
However, "proper jury instructions on second-degree murder do not list 'without premeditation' as an element of the offense that the state must prove." Id.