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State v. Prasertphong9/2/2003
cessarily included in the offense charged." State v. Valenzuela, 194 Ariz. 404, 406, 10-11, 984 P.2d 12, 14 (1999); State v. Krone, 182 Ariz. 319, 323, 897 P.2d 621, 625 (1995). Theft is a lesser included offense of armed robbery. State v. Kinkade, 147 Ariz. 250, 253, 709 P.2d 884, 887 (1985).
When a defendant requests a lesser included offense instruction that is supported by the evidence, failure to give the requested instruction constitutes fundamental error if the failure impedes the defendant's ability to present his defense. Valenzuela, 194 Ariz. at 407, 15, 984 P.2d at 15. To determine whether the evidence requires giving of theft as a lesser included offense of armed robbery, "the test is 'whether the jury could rationally fail to find the distinguishing element of the greater offense.'" Krone, 182 Ariz. at 323, 897 P.2d at 625 (quoting State v. Detrich, 178 Ariz. 380, 383, 873 P.2d 1302, 1305 (1994) ( Detrich I ) (quoting State v. (Vivian Rhea) Noriega, 142 Ariz. 474, 481, 690 P.2d 775, 782 (1984), overruled on other grounds by State v. Burge, 167 Ariz. 25, 28 n.7, 804 P.2d 754, 757 n.7 (1990)).
Robbery is the taking of property of another by means of threat or use of force against any person. A.R.S. § 13-1902 (2001). An armed robbery occurs "if, in the course of committing a robbery... such person or an accomplice: 1. Is armed with a deadly weapon... or 2. Uses or threatens to use a deadly weapon." A.R.S. § 13-1904. It is not necessary that a defendant "uses or threatens to use a deadly weapon" so long as the accomplice does so. State v. McNair, 141 Ariz. 475, 479, 687 P.2d 1230, 1234 (1984).
Theft, on the other hand, occurs when a person "knowingly" and "without lawful authority" controls "property of another with the intent to deprive the other person of such property." A.R.S. § 13-1802(A)(1) (2001). The key to distinguishing between robbery and theft turns on whether a defendant's intent to commit a theft coexisted with his use of force. State v. (George Villegas) Lopez, 158 Ariz. 258, 263, 762 P.2d 545, 550 (1988). A robbery may be established when the use of force precedes the actual taking of property, so long as the intent to take another's property accompanies the use of force. State v. Comer, 165 Ariz. 413, 421, 799 P.2d 333, 341 (1990). It follows then that if the requisite force does not coexist with the intent to take the property, the taking is a theft but is not a robbery. Lopez, 158 Ariz. at 264, 762 P.2d at 551.
On appeal, Prasertphong admits that he took the debit card machine after Huerstel killed all three victims but argues that this did not constitute an armed robbery because his intent to steal was not contemporaneous with the force used against the victims. But at trial, counsel for Prasertphong conceded that a robbery occurred with respect to Curry, stating, "I guess as to [Curry] there would have been an armed robbery." His counsel also told the trial court during the settling of jury instructions that the taking of the debit card machine was "separate from the taking and the use of force that was used to take the [bank] bag.... That's the reason why we've submitted theft as a lesser included of armed robbery, because the jury could believe that [Prasertphong] didn't have a thing to do with the armed robbery." But the State based its theory of the armed robbery exclusively on the taking of the bank bag. It mentioned the taking of the debit card machine only as evidence of Prasertphong's attempt to cover up his participation in the crimes.
Consequently, as presented to the trial court, the taking of the debit card machine was a separate offense and not an included offense of robbery. Accordingly, no factual p
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