794 P.2d 460 (Utah 1990), 870412, State v. Larocco

Docket Nº:870412.
Citation:794 P.2d 460
Opinion Judge:DURHAM, Justice:
Party Name:STATE of Utah, Plaintiff and Respondent, v. Phillip Paul LAROCCO, Defendant and Petitioner.
Attorney:Lisa J. Remal, Joan C. Watt, Salt Lake City, for defendant and petitioner. R. Paul Van Dam, Barbara Bearnson, Salt Lake City, for plaintiff and respondent.
Case Date:May 30, 1990
Court:Supreme Court of Utah
 
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Page 460

794 P.2d 460 (Utah 1990)

STATE of Utah, Plaintiff and Respondent,

v.

Phillip Paul LAROCCO, Defendant and Petitioner.

No. 870412.

Supreme Court of Utah.

May 30, 1990

Page 461

Lisa J. Remal, Joan C. Watt, Salt Lake City, for defendant and petitioner.

R. Paul Van Dam, Barbara Bearnson, Salt Lake City, for plaintiff and respondent.

DURHAM, Justice:

Defendant was convicted in the District Court of the Third Judicial District, Salt Lake County, of theft and possession of a stolen vehicle. The Utah Court of Appeals affirmed the convictions, and this court granted certiorari. Defendant contends that the trial court erred in (1) instructing the jury it could convict defendant of both theft and possession of the same stolen vehicle; (2) admitting evidence obtained without a search warrant; and (3) refusing to grant a mistrial after a conversation between a juror and a prosecution witness.

In June of 1981, a distinctive 1973 Ford Mustang was reported stolen from State Auto Sales. The theft allegedly occurred when a salesman allowed defendant, who had visited the car lot and spoken with the salesman on two previous occasions, to take the car for an unaccompanied test drive. Defendant failed to return the car or pay for it. In May of 1985, the same salesman saw defendant at another car sales showroom. He obtained defendant's name and address and relayed that information to William Padilla, the owner of State Auto Sales. Mr. Padilla could not locate the exact street address, but did observe a Mustang he believed to be the stolen car parked on the street within a couple of blocks of the address. Mr. Padilla noted the license number and called the police.

Shortly thereafter, Detective Robison, in response to Mr. Padilla's call, observed the Mustang parked in front of what proved to be defendant's home and ascertained through state licensing records that the Mustang was registered in defendant's name. Detective Robison also checked the vehicle identification number (VIN) listed with the state for the vehicle's registration and was informed that Mr. Neil Hailes had purchased the car in 1973 and registered it through 1975; the next registration entry for the VIN was to defendant.

About a week later, Detective Robison, accompanied by another detective and an official from the Department of Motor Vehicles, went back to defendant's home, where the car was still parked. They looked through the windshield at the VIN tag on the dashboard. The VIN matched the VIN identified as being that of Mr. Hailes' Mustang but did not match the VIN of the vehicle stolen from Mr. Padilla's car lot. The individual from the Department of Motor Vehicles inspected the VIN on the dashboard from the exterior of the vehicle and determined that it appeared to have been affixed in the normal manner. The officers then, without a warrant, opened the unlocked door and observed the VIN on the safety standard sticker on the inside edge of the door. This VIN differed from that on the dashboard but matched that of the stolen Mustang. The officers then went to defendant's home, read him his Miranda rights, and arrested him. Defendant consistently claimed that he had purchased the Mustang. Subsequent investigation revealed that Neil Hailes' Mustang had been totally destroyed in a car accident in December of 1975.

Page 462

The Lesser Included Offense

Defendant was convicted of theft of a motor vehicle. The jury also found him guilty of possession of the same stolen vehicle. Defendant argues that possession of a stolen vehicle is a lesser included offense of theft of that vehicle. See Utah Code Ann. § 76-1-402(3) (1978).

The court of appeals affirmed the convictions, holding that under the facts of this case (1) the trial court did not err in refusing to instruct the jury that possession of a stolen vehicle is a lesser included offense of theft of the vehicle, and (2) the trial court did not err in allowing the jury to convict defendant of both theft and possession of the stolen vehicle. We affirm in part and reverse in part.

We disagree with defendant as to his right to have the jury instructed that possession of a stolen vehicle is a lesser included offense of theft of that vehicle. In State v. Baker, 671 P.2d 152 (Utah 1983), this court held that the trial court is obligated to instruct on a lesser included offense only when there is a "rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense." Id. at 159 (quoting Utah Code Ann. § 76-1-402(4) (1978)). In the present case, the evidence presented at trial to establish defendant's theft of the Mustang was not ambiguous or subject to an alternative interpretation requiring the court to instruct on the lesser included offense of possession. The salesman had positively identified defendant as the person who had been at State Auto Sales on three occasions to talk with him about the Mustang. Defendant was immediately recognized by said salesman some four years later, and he unequivocally identified defendant at trial as the person who had taken the car and failed to return it. Because this court can identify no rational basis whereby defendant could have been acquitted of the greater offense and simultaneously convicted of the lesser offense, we hold that the trial court did not err in refusing defendant's proposed instruction.

We agree with defendant, however, that under the facts of this case, possession of a stolen vehicle is a lesser included offense of theft of a vehicle. A charge is a lesser included offense when "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged." State v. Branch, 743 P.2d 1187, 1191 (Utah 1987) (quoting Utah Code Ann. § 76-1-402(3)(a) (1978)).

In State v. Hill, 674 P.2d 96 (Utah 1983), we considered whether theft was a lesser included offense of aggravated robbery. The analysis set forth in that case is controlling here. In Branch, we applied the Hill test in setting forth the proper analysis for determining lesser included offenses:

The principal test [for whether a crime is a lesser included offense] involves a comparison of the statutory elements of each crime. Subsection 76-1-402(3)(a) provides the definition of lesser included offenses that is applied for this purpose: an offense is lesser included when "[i]t is established by proof of the same or less than all the facts required to establish the commission of the offense charged...." Thus, where the two crimes are "such that the greater cannot be committed without necessarily having committed the lesser," then as a matter of law they stand in the relationship of greater and lesser offenses, and the defendant cannot be convicted or punished for both.

....

The secondary test is required by the circumstance that some crimes have multiple variations, so that a greater-lesser relationship exists between some variations of these crimes, but not between others. A theoretical comparison of the statutory elements of two crimes having multiple variations will be insufficient. In order to determine whether a defendant can be convicted and punished for two different crimes committed in connection with a single criminal episode, the court must consider the evidence to determine whether the greater-lesser relationship exists between the specific variations

Page 463

of the crimes actually proved at trial.

Branch, 743 P.2d at 1191 (quoting State v. Hill, 674 P.2d at 97) (citations omitted).

Utah Code Ann. § 76-6-404 (1978) states, "A person commits theft if he obtains or exercises unauthorized control over the property of another with a purpose to deprive him thereof." As stated in Utah Code Ann. § 76-6-412(1)(a)(ii) (1978), theft of an "operable motor vehicle" is a second degree felony. Defendant was also charged with possession of a stolen vehicle pursuant to Utah Code Ann. § 41-1-112 (1981), which states:

Any person who, with intent to procure or pass title to a vehicle which he knows or has reason to believe has been stolen or unlawfully taken, receives, or transfers possession of the same from or to another, or who has in his possession any vehicle which he knows or has reason to believe has been stolen or unlawfully taken, and who is not an officer of the law engaged at the time in the performance of his duty as such officer, is guilty of a felony.

In applying the first prong of the Hill test, we must compare the elements of the two offenses. By definition, theft contains two elements: (1) obtaining or exercising unauthorized control over the property of another, (2) with a purpose to deprive him thereof. Possessing a stolen vehicle also contains two elements: (1) possessing a vehicle, and (2) knowing or having reason to believe it was stolen. Both of the elements of possession of a stolen vehicle are necessarily included in the first element of theft. Hence, the first prong of the Hill test is met.

The second prong of the Hill test requires a determination as to whether "the greater-lesser relationship exists between the specific variations of the crimes...." Hill, 674 P.2d at 97. A year or two (the record does not disclose the exact date) after stealing the Mustang, defendant was incarcerated in the Utah State Prison for stealing a truck. During the summer of 1982, the Mustang was "dropped off" at the house of defendant's brother-in-law, under whose care it remained until defendant took back the car after his release in early 1985. The State contends that the four-year gap between the theft charge and the possession charge precludes defendant's contention that the acts derived from a single criminal episode. The State also contends that defendant's conscious decision to again take possession of the Mustang was an act...

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