State v. Hill, 18180
| Citation | 674 P.2d 96 |
| Decision Date | 01 November 1983 |
| Docket Number | No. 18180,18180 |
| Parties | STATE of Utah, Plaintiff and Respondent, v. Wendell Irving HILL, Defendant and Appellant. |
| Court | Supreme Court of Utah |
Brooke C. Wells of Salt Lake Legal Defender Ass'n, Salt Lake City, for defendant and appellant.
David L. Wilkinson, Atty. Gen., Robert N. Parrish, Asst. Atty. Gen., Salt Lake City, for plaintiff and respondent.
This case turns on whether theft is a lesser included offense of aggravated robbery on the facts of this case.
The relationship of lesser included offenses is significant for two purposes. "A defendant may be convicted of an offense included in the offense charged but may not be convicted of both the offense charged and the included offense." U.C.A., 1953, § 76-1-402(3). In other words, conviction of a lesser included offense (1) is permitted as an alternate to the charged offense, but (2) is not permitted as an addition to it. This case involves the second issue--conviction and sentence for theft in addition to aggravated robbery.
The prosecution's evidence showed that defendant and a companion forced their way into the manager's apartment at the Stratford Hotel in downtown Salt Lake City. Defendant held a pistol. After threatening to kill the manager and a guest, the intruders bound and gagged the two occupants. They took a tape recorder, a TV, several items of radio equipment, and about $70 in cash from a desk. A few minutes later, defendant and his companion were arrested several blocks away in an automobile containing some currency, all the items taken from the apartment, and the pistol used in the crime. As a result of this episode, defendant was charged and convicted of four crimes, including aggravated robbery of the manager and theft from the manager. The court sentenced defendant to 5 years to life on aggravated robbery and to a concurrent lesser sentence on theft. On appeal, defendant challenges only the conviction and sentence for theft, contending that it is improper in addition to the conviction for aggravated robbery because theft is a lesser included offense of aggravated robbery.
We conclude that for purposes of the prohibition against conviction "of both the offense charged and the included offense," § 76-1-402(3), the greater-lesser relationship must be determined by comparing the statutory elements of the two crimes as a theoretical matter and, where necessary, by reference to the facts proved at trial.
The principal test 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," State v. Baker, Utah, 671 P.2d 152, 156 (1983), 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. So it is with robbery and theft, which are generally acknowledged to occupy the greater-lesser relationship. State v. Elliott, Utah, 641 P.2d 122, 123 (1982); People v. Cole, 31 Cal.3d 568, 582, 645 P.2d 1182, 1191, 183 Cal.Rptr. 350, 359 (1982). 1
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. E.g., State in Interest of L.G.W., Utah, 641 P.2d 127, 130-31 (1982) (). 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...
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State v. Wood
...the two crimes must be " 'such that the greater cannot be committed without necessarily having committed the lesser.' " State v. Hill, 674 P.2d 96, 97 (Utah 1983) (quoting State v. Baker, 671 P.2d 152, 156 (Utah 1983)). In Hill, we held that whether an offense is a lesser included offense o......
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...unanimously find at least one mitigating factor or sentence would be presumed death).221 Utah Code Ann. § 76-1-402(3).222 State v. Hill, 674 P.2d 96, 97 (Utah 1983) (quoting State v. Baker, 671 P.2d 152, 156 (Utah 1983)).223 725 P.2d 1301 (Utah 1986).224 Id. at 1314 n. 3.225 Hill, 674 P.2d ......
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State v. Larocco
...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 control......
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State v. McCovey, 890137
...murder); State v. Baker, 671 P.2d 152, 152-60 (Utah 1983) (criminal trespass is a lesser included offense of burglary); State v. Hill, 674 P.2d 96, 96-98 (Utah 1983) (theft is a lesser included offense of aggravated robbery); see also State v. Mane, 783 P.2d 61, 63-66 (Utah Ct.App.1989) (at......