Opinion
Case No. 20010268-CA.
Filed April 18, 2002. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Timothy R. Hanson.
Linda M. Jones and Lisa J. Remal, Salt Lake City, for Appellant.
Mark L. Shurtleff and Kenneth A. Bronston, Salt Lake City, for Appellee.
Before Judges Bench, Davis, and Orme.
MEMORANDUM DECISION
"A defendant is not entitled to have a jury instructed on a lesser included offense unless there is `a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.'" State v. Shabata, 678 P.2d 785, 790 (Utah 1984) (citations omitted). See also State v. Cox, 826 P.2d 656, 662-63 (Utah Ct.App. 1992) (holding trial court did not err in refusing to give lesser included offense instruction where "there was no substantial evidence to support . . . theory").
Our review of the record indicates that the jury was not presented with an evidentiary theory providing a "rational basis upon which the jury could have acquitted the defendant of [aggravated robbery] and convicted him of [robbery]." Cox, 826 P.2d at 662. Two versions of the incident were presented at trial. The State presented evidence supporting its theory that Defendant was a willing participant in an aggravated robbery. Defendant testified that he was an innocent bystander, entirely surprised that Mallory was armed and by Mallory's decision to rob the victim. Defendant did not contend at trial that he intended to rob the victim — but only by means that did not amount to aggravated robbery.
On this record, the trial court appropriately refused to submit Defendant's proposed lesser included offense instruction to the jury. Affirmed.
WE CONCUR: Russell W. Bench, Judge, James Z. Davis, Judge.