State v. Dugan, 4749-PR

Decision Date10 March 1980
Docket NumberNo. 4749-PR,4749-PR
Citation608 P.2d 771,125 Ariz. 194
PartiesSTATE of Arizona, Appellee, v. Daniel LaVerne DUGAN, Appellant.
CourtArizona Supreme Court

Robert K. Corbin, Atty. Gen. by William J. Schafer, III, Robert S. Golden, Asst. Attys. Gen., Phoenix, for appellee.

Richard S. Oseran, Pima County Public Defender by Lawrence H. Fleischman, P. Donovan Riddle, Asst. Public Defenders, Tucson, for appellant.

STRUCKMEYER, Chief Justice.

Daniel LaVerne Dugan, appellant herein, petitioned this Court to review a memorandum decision of the Court of Appeals affirming a judgment of the Superior Court, State of Arizona v. Daniel LaVerne Dugan, 2 CA-CR 1589, filed June 14, 1979. We accepted jurisdiction, Rule 31.19, Rules of Criminal Procedure, 17 A.R.S. Decision of the Court of Appeals vacated. Judgment of the Superior Court reversed. At about midnight on October 30, 1977, a U-Totem convenience market was robbed. The market is a typical neighborhood convenience market, open all night, with one employee on duty. Security cameras were located in the store. Dugan lived in the neighborhood and frequently transacted business in the store both before and after the robbery. Dugan was in the market on the night of, and at the approximate time of, the robbery and was recognized by the cashier as a previous customer. Forty six dollars was taken from the cash register. After a three-day trial, Dugan was found guilty of robbery.

Dugan first urges that the trial court erred in refusing to give his requested jury instruction on theft as a lesser included offense to robbery. Theft is defined as the taking of personal property of another and the asportation thereof. A.R.S. § 13-661, subsequently amended, see § 13-1802; Pass v. State, 34 Ariz. 9, 267 P. 206 (1928). By Rule 23.3, Rules of Criminal Procedure, 17 A.R.S., a lesser included offense must be submitted to the jury:

"Forms of verdicts shall be submitted to the jury for all offenses necessarily included in the offense charged, * * *."

Rule 23.3 was adapted from Rule 31(c), Federal Rules of Criminal Procedure. Cases decided under the federal rule are therefore persuasive.

In Berra v. United States, 351 U.S. 131, 76 S.Ct. 685, 100 L.Ed. 1013 (1956), the Court pointed to the underlying principle that:

"In a case where some of the elements of the crime charged themselves constitute a lesser crime, the defendant, if the evidence justifies it, would no doubt be entitled to an instruction which would permit a finding of guilt of the lesser offense."

The words "necessarily included" found in Rule 23.3 are not synonymous with the words "lesser included." An offense may be the lesser included of another offense, but factually, dependent upon the evidence, may or may not be "necessarily included" in the greater offense. An offense is lesser included when the greater offense cannot be committed without necessarily committing the lesser offense. In re Appeal in Maricopa County, Juvenile Action # J-75755, 111 Ariz. 103, 523 P.2d 1304 (1974); State v. Woody, 108 Ariz. 284, 496 P.2d 584 (1972); State v. Sutton, 104 Ariz. 317, 452 P.2d 110 (1969).

Theft is a lesser included offense of robbery, State v. Jackson, 121 Ariz. 277, 589 P.2d 1309 (1979), because robbery cannot be committed without committing the crime of theft. Dugan was convicted of robbery as defined by A.R.S. § 13-641, subsequently amended, see § 13-1902, effective October 1978:

"Robbery is the felonious taking of personal property in the possession of another from his person, or immediate presence, and against his will, accomplished by means of force or fear." (Emphasis added.)

For an instruction on a lesser offense to be considered as proper, two conditions must be met. First, as noted above, the crime must be lesser included in the offense charged and, second, the evidence must support the giving of the instruction:

"A lesser-included offense instruction is only proper where the charged greater offense requires the jury to find a disputed factual element which is not required for conviction of the lesser-included offense. Berra v. United States, supra; * * *

* * * Therefore, if on the facts of a given case there are disputed issues of fact which would enable the jury rationally to find that, although all the elements of (the crime charged) have not been proved, all the elements of one or more lesser offenses have been, it is clear that the defendant is entitled to a lesser-included offense charge as to such lesser offenses. " Sansone v. United States, 380 U.S. 343, 85 S.Ct. 1004, 13 L.Ed.2d 882 (1965). (Emphasis added.)

The determination which must be made before the lesser included instruction is proper is whether on the evidence the jury could rationally find that the state failed to prove an element of the greater offense. Such element must be required to convict of the greater, but not to convict of the lesser offense. It must be an element which necessarily distinguishes the greater from the lesser. Robbery, the greater offense, requires the taking to be accomplished by "force or fear." Theft, the lesser offense, does not have such an element. In Arizona, the element of "fear" required to prove robbery is measured by an objective standard, the mere temperamental timidity of the victim is not sufficient. State v. Stephens, 66 Ariz. 219, 186 P.2d 346 (1947). Therefore, if the jury could rationally find that the state failed to prove the distinguishing element of fear, but did in fact prove all other elements, the jury could return a guilty verdict for theft.

The record in the instant case reveals two conflicting sets of facts. The cashier testified Dugan and another, larger man with a bulge under his coat, entered the store together; each disabled one of the surveillance cameras, and the second man kept a lookout while Dugan took the money from the register. Dugan, on the other hand, testified that he entered the store alone; that he saw another customer in the store, but thought nothing of it; that he transacted his usual business of purchasing beer and cigarettes and, at the cashier's request, traded him a marijuana cigarette for a bottle of scotch before he left the store.

Dealing with similar issues relative to a conviction for robbery, this Court has held:

"Had the jury believed that no force or fear was present, it could have convicted (the defendant) of theft and acquitted him of robbery. Since the evidence before the jury would have supported a conviction of theft and an acquittal of...

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