State v. Oseguera-Lopez

2020 UT App 115

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Appellee,
v.
ROGELIO OSEGUERA-LOPEZ,
Appellant.

Opinion
No. 20190176-CA
Filed August 13, 2020

Third District Court, Salt Lake Department
The Honorable Adam T. Mow
No. 181904038

Andrea J. Garland and Elise C. Lockwood, Attorneys
for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee

JUDGE DIANA HAGEN authored this Opinion, in which
JUDGES MICHELE M. CHRISTIANSEN FORSTER and RYAN M. HARRIS
concurred.

HAGEN, Judge:

¶1 On Christmas Eve, Rogelio Oseguera-Lopez entered a
department store, grabbed $1,000 worth of merchandise, and
attempted to leave without paying. When stopped by store
employees, Oseguera-Lopez displayed a knife and then made
his way toward a different exit. He was thereafter arrested and
convicted of aggravated robbery. On appeal, Oseguera-Lopez
contends that the district court committed reversible error by
declining to instruct the jury on the uncharged crime of retail
theft and by denying his motion for a directed verdict. We reject
his arguments and affirm.
 State v. Oseguera-Lopez

BACKGROUND 1

¶2 One Christmas Eve, Oseguera-Lopez entered a
department store with a flashlight, an unsheathed hunting knife,
a folding knife, and a pair of wire cutters. He also had $20 in his
pocket but carried no other means of paying for merchandise.

¶3 Oseguera-Lopez went to the luggage department, took a
duffel bag out of its box, and placed the unsheathed knife and
flashlight inside it. He then carried the duffel bag to the handbag
department, selected a handbag, and placed the handbag on the
floor next to the open duffel bag.

¶4 By this point, Oseguera-Lopez had attracted the attention
of the store’s loss prevention team, who had been observing his
behavior via security cameras. A loss prevention employee
followed Oseguera-Lopez around the sales floor to keep an eye
on him. Then, while Oseguera-Lopez was distracted, the
employee grabbed the duffel bag and handbag, hid them behind
a register, and continued observing Oseguera-Lopez as he
selected more handbags.

¶5 At the request of the loss prevention staff, a merchandise
manager approached Oseguera-Lopez to ask if he needed help.
He declined the offer of assistance and continued looking at
handbags for another ten to twenty minutes, but he seemed to
become increasingly agitated. Oseguera-Lopez asked another
store employee if she knew where the duffel bag was. When the
employee claimed that she did not know, Oseguera-Lopez
grabbed four handbags at once and headed toward the store’s

1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Jones, 2020 UT App 31, n.1, 462
P.3d 372 (cleaned up).

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 State v. Oseguera-Lopez

south exit. Walking quickly, he passed several cash registers,
including the final point of sale before the exit, but made no
attempt to pay for the handbags he was carrying.

¶6 As he approached the south exit, Oseguera-Lopez was
intercepted by the merchandise manager. As he approached her,
he asked, “Where’s my duffel bag?” The merchandise manager
responded, “I don’t know what you’re talking about.” Oseguera-
Lopez inquired if the store had any security cameras, and the
merchandise manager informed him that security cameras were
handled by a different department but that she could look into it
for him if he handed her the handbags he was carrying.

¶7 Oseguera-Lopez handed the merchandise manager one
handbag. Then, as he handed over a second handbag, he used
his other hand to reach into his pocket and pulled out the
folding knife. Although he never unfolded the knife, he
displayed it in his open palm in a manner the merchandise
manager described as “very aggressive.”

¶8 The loss prevention manager, who had been watching the
situation unfold, saw the knife and immediately told someone to
call the police. At that point, Oseguera-Lopez flipped off the
store employees, swore at them, and quickly walked away. He
made his way toward the north exit, pausing briefly to ask other
store employees if they knew where the duffel bag was. When
he was three to four feet away from the north exit, but still inside
the store, Oseguera-Lopez was stopped by a responding police
officer.

¶9 The officer and loss prevention staff took Oseguera-Lopez
to the store’s loss prevention office for questioning. They asked
him his name, where he lived, his address, how he had traveled
to the store that day, and if there was anyone waiting for him. In
response, Oseguera-Lopez told them that his name was “Javier”
and provided several false birth dates. When asked to explain
his actions at the store, Oseguera-Lopez said that “his friend told

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him to come and get [the handbags], and that his friend was
going to take them back to Mexico.” The officer searched a law
enforcement database using the information that Oseguera-
Lopez had provided. When the officer could not find any match
in his database, he took Oseguera-Lopez’s fingerprints. The
fingerprints later revealed Oseguera-Lopez’s identity.

¶10 The officer reported the case as a “retail theft,” but did not
arrest Oseguera-Lopez because nobody was available to
transport him to jail. Instead, the officer escorted Oseguera-
Lopez off the store’s property. The total value of the items
Oseguera-Lopez attempted to take from the store totaled just
over $1,000.

¶11 The State charged Oseguera-Lopez with aggravated
robbery and providing false personal information to a peace
officer. At the close of the State’s case at trial, Oseguera-
Lopez moved for a directed verdict, which the district
court denied. The defense then rested without presenting
evidence.

¶12 In a discussion with the district court after the close of
evidence, Oseguera-Lopez’s counsel revealed that she intended
to argue at closing that Oseguera-Lopez committed retail theft—
not aggravated robbery—and that the State had overcharged
him. In accordance with this theory, Oseguera-Lopez requested
two jury instructions on the subject of retail theft. The court
denied the requested instructions.

¶13 Oseguera-Lopez also requested the following jury
instruction on the elements of “attempt” as a crime:

A person is guilty of an attempt to commit a crime
if he:

(a) Engages in conduct constituting a substantial
step toward commission of the crime; and

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 State v. Oseguera-Lopez

(b)(i) intends to commit the crime; or

(b)(ii) when causing a particular result is an
element of the crime, he acts with an awareness
that his conduct is reasonably certain to cause the
result.

Conduct constitutes “a substantial step” if it
strongly corroborates the actor’s mental state as
described above.

Pointing to the references to “attempt” in Utah’s robbery statute,
see Utah Code Ann. § 76-6-301(2)(a)–(c) (LexisNexis 2017),
Oseguera-Lopez argued that the jury needed to be given the
“specific legal definition” of attempt. But the district court
disagreed and denied the instruction.

¶14 The jury convicted Oseguera-Lopez as charged. He now
appeals from his aggravated robbery conviction.

ISSUES AND STANDARDS OF REVIEW

¶15 Oseguera-Lopez contends that the district court abused its
discretion by denying his request for the two jury instructions
relating to retail theft and his request for an instruction
providing the elements of attempt. “We review a district court’s
refusal to give a jury instruction for abuse of discretion.” Miller v.
Utah Dep’t of Transp., 2012 UT 54, ¶ 13, 285 P.3d 1208.

¶16 Oseguera-Lopez also argues that the district court erred
by denying his motion for a directed verdict because “the State
presented insufficient evidence that [he] took personal property
from the immediate presence of another person with a purpose
to deprive the person of the property.” “We review the district
court’s denial of a motion for directed verdict for correctness.”
State v. Barner, 2020 UT App 68, ¶ 9, 464 P.3d 190 (cleaned up).

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 State v. Oseguera-Lopez

But because Oseguera-Lopez “challenges the denial of a motion
for directed verdict based on the sufficiency of the evidence, the
applicable standard of review is highly deferential.” See id.
(cleaned up). “We will uphold the district court’s denial if, when
viewed in the light most favorable to the State, some evidence
exists from which a reasonable jury could find that the elements
of the crime have been proven beyond a reasonable doubt.” Id.
(cleaned up).

ANALYSIS

¶17 On appeal, Oseguera-Lopez challenges his conviction for
aggravated robbery. As applicable to this case, a person commits
aggravated robbery if he “uses or threatens to use a dangerous
weapon” “while in the course of committing robbery.” Utah
Code Ann. § 76-6-302(1)(a) (LexisNexis 2017). A person is
“committing robbery” when he “intentionally or knowingly uses
force or fear of immediate force against another in the course of
committing a theft or wrongful appropriation.” Id. § 76-6-
301(1)(b). And an act is “in the course of” committing a robbery
“if it occurs in an attempt to commit, during the commission of,
or in the immediate flight after the attempt or commission of a
robbery.” Id. § 76-6-302(3). With these statutory definitions in
mind, we address each of Oseguera-Lopez’s claims of error.

I. The Retail Theft Instructions

¶18 Oseguera-Lopez asserts that the district court abused its
discretion by denying his request for two jury instructions on the
subject of retail theft. The first of those instructions defined the
crime of retail theft according to statute. See Utah Code Ann.
§ 76-6-602 (LexisNexis 2017). The second sought to instruct the
jury that “retail theft” was a distinct crime from both “theft” and
“wrongful appropriation” and that only the latter two crimes
could serve as the basis of a robbery conviction. See id. § 76-6-
301(1)(b) (“A person commits robbery if the person intentionally

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 State v. Oseguera-Lopez

or knowingly uses force or fear of immediate force against
another in the course of committing a theft or wrongful
appropriation.” (emphasis added)).

¶19 According to Oseguera-Lopez, the instructions were
necessary because “the facts showed a retail theft had taken
place [and] the State could have charged the case appropriately
but elected to charge aggravated robbery” instead. Essentially,
the defense’s theory was that Oseguera-Lopez committed a
crime but not the crime that was actually charged. Further, he
wanted the jury instructed that retail theft was not a lesser
included offense of robbery and so could not serve as the basis of
a robbery conviction—unlike the crimes of theft or wrongful
appropriation. See id. In short, Oseguera-Lopez aimed to
convince the jury that he had committed retail theft, which, in
his view, could not serve as the basis for a robbery conviction.

¶20 A defendant may certainly argue that his actions, while
criminal, did not rise to the level of the crime charged. But he is
not entitled to a jury instruction defining a crime that is not at
issue, so long as the remaining instructions adequately allow the
defense to argue its theory to the jury. This court previously
considered whether a defendant is entitled to a jury instruction
on “a lesser, uncharged, unincluded offense” and determined
that such a position was “wholly without merit.” State v.
Tennyson, 850 P.2d 461, 470 (Utah Ct. App. 1993). In Tennyson,
we reasoned that such an instruction was “entirely independent
from [the] defendant’s ability to present his . . . defense to the
jury” and that “[t]he jury instructions as a whole clearly afforded
the jury an opportunity to accept [the] defendant’s theory of the
case and find him innocent if the jurors determined that the facts
bore his theory out.” Id. at 471. Similarly, here, the jury
instructions as a whole allowed Oseguera-Lopez to argue his
theory that, although his actions were criminal, they did not rise
to the level of aggravated robbery—the charged crime, on which
the jury was properly instructed. Accordingly, the district court
acted well within its discretion in declining to instruct the jury

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 State v. Oseguera-Lopez

on the elements of the lesser, uncharged, unincluded offense of
retail theft.

¶21 As for the second instruction, the district court acted
within its discretion in refusing to instruct the jury that retail
theft could not serve as a basis for robbery because that
proposition is not supported by any legal authority. At trial, the
State argued that Oseguera-Lopez was guilty of a specific
variant of robbery—“intentionally or knowingly us[ing] force or
fear of immediate force against another in the course of
committing a theft or wrongful appropriation.” See Utah Code
Ann. § 76-6-301(1)(b). Oseguera-Lopez views the language
concerning “a theft or wrongful appropriation” as requiring that
a conviction on that variant of robbery be based on either the
crimes of “theft,” as defined in Utah Code section 76-6-404, or
“wrongful appropriation,” as defined in Utah Code section 76-6-
404.5, and precluding a conviction based on all other types of
theft, including retail theft as defined in Utah Code section 76-6-
602. But there is no basis in the wording of the statute or in Utah
caselaw to support that proposition; instead, legal authorities
support the opposite conclusion.

¶22 The robbery statute does not specifically refer to the
singular crime of “theft” as defined in Utah Code section 76-6-
404. Rather it refers to “a theft.” See id. § 76-6-301(1)(b) (emphasis
added). “Most courts have construed ‘a’ or ‘an’ as meaning ‘any’
and as not restricted to just one.” Evans v. State, 914 A.2d 25, 75
(2006). Indeed, “[i]t is well-established that the use of the
indefinite article ‘a’ or ‘an’ signals a generic reference.” State v.
Culver, 941 N.W.2d 134, 140 (Minn. 2020) (citing Bryan A.
Garner, The Redbook: A Manual on Legal Style § 10.38 (2d ed.
2006)); see also United States v. Martinez-Candejas, 347 F.3d 853,
856 (10th Cir. 2003) (“The use of the indefinite article ‘an’ and the
addition of ‘offense’ at the phrase’s end indicates that the phrase
‘an alien smuggling offense’ is meant to refer not just to alien
smuggling per se but to a family of offenses that are in some
sense related to alien smuggling.”). Thus, the plain language of

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 State v. Oseguera-Lopez

the statute suggests that the robbery statute includes generic
theft offenses and is not limited to the singular crime of theft as
defined in Utah Code section 76-6-404. See id.; see also State v.
Campbell, 2012 UT App 75, ¶ 7, 274 P.3d 1021 (concluding that a
reference to “theft” in another statute “may also apply to retail
theft” (cleaned up)).

¶23 Further, Oseguera-Lopez’s argument seems to assume
that, because his attempted theft was perpetrated against a
retail establishment, “retail theft” was the only underlying
crime he could have committed. But we see no reason why his
conduct would not have satisfied the elements of “theft”
as defined in Utah Code section 76-6-404. One need only look
to Utah caselaw to find examples where taking merchandise
from a retail store has been prosecuted under the theft
statute. See generally, e.g., State v. Bender, 581 P.2d 1019 (Utah
1978) (affirming a theft conviction based on the defendant’s
theft of a coat from a clothing store); State v. Harris, 2015
UT App 282, 363 P.3d 555 (affirming a theft conviction based
on the defendant’s theft from a ski specialty store). And
even under Oseguera-Lopez’s suggested interpretation of
the robbery statute, actions constituting “theft” as defined in
Utah Code section 76-6-404 can serve as the basis for a robbery
conviction.

¶24 In sum, the district court properly exercised its discretion
in refusing to instruct the jury on the elements of a crime for
which the jury was not asked to render a verdict. A defendant is
not entitled to jury instructions regarding lesser, uncharged,
unincluded offenses so long as the remaining instructions
adequately allow the defense to argue its theory to the jury, as
the instructions here did. In addition, the court properly rejected
Oseguera-Lopez’s request to instruct the jury on the
unsupported proposition that theft of merchandise from a retail
establishment cannot constitute “a theft” within the meaning of
the robbery statute.

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 State v. Oseguera-Lopez

II. The Attempt Instruction

¶25 Oseguera-Lopez next argues that the district court abused
its discretion by denying his request to instruct the jury on the
elements of “attempt.” See Utah Code Ann. § 76-4-101
(LexisNexis 2017) (providing that a person “is guilty of an
attempt to commit a crime if he . . . engages in conduct
constituting a substantial step toward commission of the crime”
and has the requisite mental state). Given that aggravated
robbery includes the use or threatened use of a dangerous
weapon during “an attempt to commit” robbery, Oseguera-
Lopez believes that an instruction defining “attempt” was
necessary.

¶26 The State responds that Oseguera-Lopez was not entitled
to his proposed instruction because Utah Code section 76-4-101
does not define the word “attempt,” but sets forth the elements
of attempt as a separate crime. If Oseguera-Lopez had been
charged with attempted aggravated robbery, such an instruction
would be proper. See State v. Harmon, 712 P.2d 291, 292 (Utah
1986) (holding that failure to instruct on the elements of attempt
was error where the defendant was charged with attempted
robbery). But because Oseguera-Lopez was charged with a
completed aggravated robbery offense, not an attempted offense,
the State argues that the proposed instruction is inapplicable.

¶27 Because Oseguera-Lopez has not demonstrated that he
was harmed by the instruction’s omission, we need not decide
whether the word “attempt” as it appears in the aggravated
robbery statute requires proof of the elements set forth in the
statute defining attempt as a separate crime. See State v. Garcia,
2017 UT 53, ¶ 40, 424 P.3d 171 (“[E]rrors in jury instructions—
even instructions going to the elements of a charged crime—
require harmless-error analysis.”). Even assuming, without
deciding, that such an instruction would be proper in this
context, the proposed instruction would have simply required

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 State v. Oseguera-Lopez

the jury to find that Oseguera-Lopez took a “substantial step”
toward committing robbery with the intent to commit the crime.

¶28 There is no reasonable likelihood that the jury would have
reached a different verdict had it been required to find that
Oseguera-Lopez took at least a substantial step toward
committing robbery with the intent to commit the crime. The
evidence at trial established that he entered the store carrying
two weapons: an unsheathed hunting knife and a folding knife.
He took four handbags and headed toward the store’s exit,
passing several cash registers without stopping to pay, and
stopped only when he was intercepted by the store’s
merchandise manager. After being confronted by the
merchandise manager, he pulled out a knife and displayed it in a
“very aggressive” and threatening manner before quickly
making his way toward a different exit. He later admitted that
he had intended to give the handbags to a friend to take to
Mexico.

¶29 By returning a guilty verdict, the jury necessarily found
that Oseguera-Lopez acted with the mental state required to
commit the offense of robbery, that is, he intentionally or
knowingly used “force or fear of immediate force against
another in the course of committing a theft.” See Utah Code Ann.
§ 76-6-301(1)(b). Having reached that conclusion, there is no
reasonable likelihood that the jury would have found that none
of Oseguera-Lopez’s actions constituted a “substantial step”
toward committing that crime. The act of bringing weapons to a
store where he intended to steal merchandise might, by itself,
qualify as a substantial step toward committing robbery. Cf.
United States v. Stallworth, 543 F.2d 1038, 1041 (2d Cir. 1976)
(affirming an attempted bank robbery conviction where the
defendants, among other things, “armed themselves” and
“moved ominously toward the bank”). Similarly, taking the
duffel bag out of its box, placing his wire cutters and unsheathed
knife in the open bag, and carrying it to the handbag department
might have constituted a substantial step. But here, Oseguera-

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Lopez took the additional steps of carrying the handbags past
the last point of sale and toward the exit and then displaying a
knife to the merchandise manager when confronted. Given these
facts, there is no reasonable likelihood that the jury would have
found that Oseguera-Lopez did not take a substantial step
toward committing “a theft” by means of “force or fear of
immediate force.” See Utah Code Ann. § 76-6-301(1)(b).
Accordingly, there is no reasonable likelihood that the outcome
of the trial would have been different had the jury been
instructed on the elements of attempt as Oseguera-Lopez
requested.

III. Motion for a Directed Verdict

¶30 Lastly, Oseguera-Lopez argues that the district court
erred by denying his motion for a directed verdict because there
was insufficient evidence presented at trial to demonstrate that
he used force or fear of immediate force in the course of
committing a theft or wrongful appropriation. 2 Specifically, he

2. Oseguera-Lopez also asserts that “the evidence was
insufficient to prove that [he] used force or fear to take handbags
from another person with the intent to deprive the person of the
handbags,” which constitutes a sufficiency challenge to the
evidence supporting the variant of robbery laid out in Utah
Code section 76-6-301(1)(a). The State responds that, although
the jury was instructed on that variant, the State explicitly
disavowed any reliance on it at trial, telling the jury to “mark
out” the portion of instructions relating to it and to instead focus
on whether Oseguera-Lopez was guilty of the second variant of
robbery laid out in Utah Code section 76-6-301(1)(b). Therefore,
according to the State, whether there was sufficient evidence to
sustain a conviction on that robbery variant is “irrelevant.”
(Citing State v. Johnson, 821 P.2d 1150, 1159 (Utah 1991) (“[A]
general verdict of guilty cannot stand if the State’s case was
premised on more than one factual or legal theory of the elements of
(continued…)

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 State v. Oseguera-Lopez

contends that “showing the knife was not in the course of
attempting theft or wrongful appropriation because [he] was in
the course of handing [the employee] the bags rather than taking
or keeping them.” (Cleaned up.) Nor, according to Oseguera-
Lopez, “was the knife displayed in the course of immediate
flight because [he] did not flee.” 3 (Cleaned up.)

(…continued)
the crime and any one of those theories is flawed or lacks
the requisite evidentiary foundation.” (emphasis added)).)
Oseguera-Lopez does not argue otherwise. Because we
determine that sufficient evidence supported Oseguera-Lopez’s
conviction under the second variant of robbery on which the
State relied at trial, we do not address Oseguera-Lopez’s
challenge to the first.

3. The State argues that Oseguera-Lopez did not preserve this
specific sufficiency challenge because his motion for a directed
verdict went to whether there was sufficient evidence that
displaying the closed folding knife rose to the level of
“knowingly and intentionally . . . promot[ing] fear of immediate
force.” Now, on appeal, Oseguera-Lopez contends that the
evidence did not support the finding that he used fear of force in
the course of committing a theft. Therefore, according to the
State, the district court was not given an opportunity to address
the issue now raised on appeal and we are limited to reviewing
only for plain error. See State v. Dean, 2004 UT 63, ¶ 14, 95 P.3d
276 (limiting itself to plain error review where the appellant
“failed to put the trial court on notice of the alleged error”).
Oseguera-Lopez responds that either his motion for a directed
verdict or the court’s ruling on that motion was sufficient
to preserve the issue for our review. We do not resolve the
question of whether Oseguera-Lopez’s sufficiency challenge was
preserved for appeal because there was no error, plain or
(continued…)

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 State v. Oseguera-Lopez

¶31 Although Oseguera-Lopez displayed the knife as he was
returning some of the handbags to the merchandise manager, an
act is considered “in the course of committing a theft” if it occurs
“in the immediate flight after the attempt or commission” of a
theft. See Utah Code Ann. § 76-6-301(2)(c) (LexisNexis 2017).
Immediately after Oseguera-Lopez displayed his knife to the
merchandise manager, he quickly walked away and made his
way toward a different store exit. That he quickly walked away
rather than sprinted does not mean that he was not fleeing from
his attempted theft. See West Valley City v. Hoskins, 2002 UT App
223, ¶¶ 10–11, 51 P.3d 52 (affirming a conviction for fleeing a
police officer where the defendant walked toward his home after
being told to stop by an officer). And the jury could have
reasonably inferred that he displayed his knife in an attempt to
aid his escape by dissuading any individuals from trying to stop
him as he walked toward the other exit. See State v. Phillips, 2006
UT App 211U, para. 4 (per curiam) (affirming conviction for
aggravated robbery where the defendant, in attempting to
escape from security personnel, said, “I have a knife,” and
displayed the knife).

¶32 Oseguera-Lopez asserts that the above-cited evidence
could also give rise to innocent inferences. And, relying on State
v. Cristobal, 2010 UT App 228, 238 P.3d 1096, abrogated by State v.
Law, 2020 UT App 74, 464 P.3d 1192, he contends that we must
reverse his conviction because “the evidence supports more than
one possible conclusion, none more likely than the other,”
meaning that the jury’s conclusion of guilt was based on “no
more than speculation.” See id. ¶ 16. “But as our supreme court
has . . . clarified, ‘the fact that we can identify an equally
plausible alternative inference is not nearly enough to set a

(…continued)
otherwise, in the court’s denial of his motion for a directed
verdict.

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 State v. Oseguera-Lopez

verdict aside.’” State v. Wall, 2020 UT App 36, ¶ 54, 460 P.3d 1058
(quoting State v. Ashcraft, 2015 UT 5, ¶ 25, 349 P.3d 664)
(otherwise cleaned up); see also State v. Law, 2020 UT App 74,
¶ 22, 464 P.3d 1192, petition for cert. filed, July 6, 2020 (No.
20200509). Rather, “the question presented is not whether some
other (innocent) inference might have been reasonable, but
simply whether the inference adopted by the jury was
sustainable.” Wall, 2020 UT App 36, ¶ 54 (cleaned up). And as
explained above, the jury’s inferences were reasonable based on
the evidence.

¶33 In sum, the evidence supporting the jury’s verdict was
sufficient to support Oseguera-Lopez’s conviction. Therefore, we
affirm the district court’s denial of Oseguera-Lopez’s motion for
a directed verdict.

CONCLUSION

¶34 The district court did not abuse its discretion by denying
Oseguera-Lopez’s request for the two jury instructions relating
to retail theft. Additionally, the court’s refusal to provide an
instruction on the elements of attempt was harmless, even
assuming that such an instruction would be appropriate where,
as here, the defendant is charged with a completed crime.
Finally, the evidence that Oseguera-Lopez used force or fear of
immediate force in the course of committing a robbery was
sufficient to support the verdict.

¶35 Affirmed.

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