State v. Oseguera-Lopez
State v. Oseguera-Lopez, 2020 UT App 115 (Hagen, J.)
The defendant stole over $1,000 of merchandise and flashed a knife at store employees as he attempted to leave the store. He was convicted of aggravated robbery. At trial, he wanted to argue that while he committed a crime, that crime was retail theft, not armed robbery. He appeals, arguing that the district court erred when it refused to instruct the jury both on “attempt” and on the crime of retail theft and when it denied his motion for a directed verdict. The Utah Court of Appeals affirmed, holding:
- The district court did not abuse its discretion when it declined to instruct the jury on the crime of retail theft. Here, the jury instructions as a whole allowed the defendant to argue his theory that, although his actions were criminal, they did not rise to the level of aggravated robbery—the charged crime. Accordingly, the district court acted well within its discretion in declining to instruct the jury on the elements of the lesser, uncharged, unincluded offense of retail theft.
- The district court did not abuse its discretion when it refused to instruct the jury that retail theft could not serve as a basis for robbery, because that proposition is unsupported by any legal authority. The plain language of the statute suggests that the robbery statute includes generic theft offenses and is not limited to the singular crime of theft as defined in Utah Code section 76-6-404. And even under the defendant’s suggested interpretation of the robbery statute, actions constituting “theft” as defined in Utah Code section 76-6-404 can serve as the basis for a robbery conviction.
- The district court did not abuse its discretion when it refused to instruct the jury on attempt. Ample evidence supports a finding that the defendant intentionally or knowingly used force or fear of immediate force committing theft when he showed his knife to a loss-prevention employee as he was leaving the store. There is no reasonable likelihood the jury would have reached a different verdict had it been instructed on attempt, which requires that he commit a “substantial step” in furtherance of the crime.
- The district court did not err when it denied his motion for directed verdict. Sufficient evidence supports the verdict. The act of walking away quickly rather than sprinting also supports a finding that he was fleeing from his robbery. And he displayed his knife immediately before attempting to leave the store. The jury could have inferred that he displayed his knife in an attempt to aid his escape.