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State v. Prasertphong9/2/2003
redicate existed to justify giving a theft instruction as a lesser included offense of robbery based on the taking of the debit card machine.
Moreover, in his statement to the police, Prasertphong was asked, "Did you guys take money?" and "Did you guys take any... checks?" Prasertphong twice responded affirmatively telling the detectives that " t was all checks." He also told the detectives that Huerstel did not take anything from the business. Thus, it is apparent that Prasertphong, rather than Huerstel, took the bank bag. Additionally, Prasertphong admitted to the detectives that he personally used force against Moniz. The requisite force required for an armed robbery need only "be used 'against any person,' not necessarily only against the person dispossessed of the property." State v. Soto-Fong, 187 Ariz. 186, 200, 928 P.2d 610, 624 (1996) (quoting State v. McGuire, 131 Ariz. 93, 96, 638 P.2d 1339, 1342 (1982)); State v. Rutledge, 197 Ariz. 389, 393-94, 17-21, 4 P.3d 444, 448-49 (App. 2000). In Soto-Fong, three victims were killed during the robbery of a market, but property was taken from only one of the victims. The court affirmed the robbery charges as to all three victims, finding that force was used to prevent all three of the victims from resisting the taking of property from the market. Soto-Fong, 187 Ariz. at 200, 928 P.2d at 624.
Similarly, in this case, three victims were killed during a robbery of the Pizza Hut, but property was only taken from one Curry. Thus, under Soto-Fong, any robbery that occurred in this case was committed against all three of the victims. Based on the evidence presented at trial, we conclude that even if Prasertphong was not the person who used force against Curry, he was nevertheless an accomplice to the armed robbery. He used force against Moniz, and his counsel conceded that the taking of the bank bag constituted a robbery. No reasonable jury, having been instructed on theft as a lesser included offense of robbery, could have determined that Prasertphong committed theft rather than armed robbery. See Comer, 165 Ariz. at 421, 799 P.2d at 341. Consequently, theft of the debit card machine was properly considered separately and not as a lesser included offense of armed robbery involving the bank bag. The trial court did not abuse its discretion in refusing the requested lesser included offense instruction.
B.
Prasertphong requested the following mere presence instruction at trial:
In order to find the defendant guilty of the crime, the prosecution must prove, beyond a reasonable doubt, that in addition to being present or knowing about the crime, the defendant knowingly associated himself with the crime in some way as a participant, as someone who wanted the crime to be committed, and not merely as a knowing spectator.
That instruction was refused, and the following instruction was given: "The mere presence of a defendant at the scene of a crime, together with knowledge a crime is being committed, is insufficient to establish guilt."
Prasertphong argues the given instruction was constitutionally infirm because it did not reflect that he did not knowingly participate in the crimes and did not express that mere association is insufficient for guilt. We disagree. " hen a jury is properly instructed on the applicable law, the trial court is not required to provide additional instructions that do nothing more than reiterate or enlarge the instructions in defendant's language." State v. Salazar, 173 Ariz. 399, 409, 844 P.2d 566, 576 (1992); see also State v. Mott, 187 Ariz. 536, 546, 931 P.2d 1046, 1056 (1997).
The trial court's mere presence instruction correctly st
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