SUPREME COURT OF ARIZONA
En Banc
STATE OF ARIZONA, ) Arizona Supreme Court
) No. CR-05-0089-PR
Appellee, )
) Court of Appeals
) Division Two
v. ) No. 2 CA-CR 04-0020
)
) Pima County
EMMET DARNELL WALL, ) Superior Court
) No. CR-20032279
Appellant. )
__________________________________) O P I N I O N
Appeal from the Superior Court in Pima County
The Honorable Frank Dawley, Judge Pro Tempore
REVERSED, REMANDED
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Court of Appeals, Division Two
Memorandum Decision (filed Jan. 28, 2005)
VACATED
________________________________________________________________
TERRY GODDARD, ARIZONA ATTORNEY GENERAL Phoenix
By Randall M. Howe, Chief Counsel
Criminal Appeals Section
Michael T. O’Toole, Assistant Attorney General
Attorneys for State of Arizona
ROBERT J. HOOKER, PIMA COUNTY PUBLIC DEFENDER Tucson
By Brian X. Metcalf, Deputy Public Defender
Attorneys for Emmet Darnell Wall
________________________________________________________________
B E R C H, Vice Chief Justice
¶1 This case concerns the trial court’s refusal to give a
lesser-included offense instruction requested by a defendant who
had asserted an all-or-nothing defense. We conclude that a
defendant does not forfeit his right to a lesser-included
offense instruction by asserting an all-or-nothing defense if
the evidence in the record is sufficient to support the
instruction. We therefore reverse the judgment of conviction,
vacate the decision of the court of appeals, and remand the case
for retrial.
I. FACTS AND PROCEDURAL BACKGROUND
¶2 On July 7, 2003, Emmet Wall, Berben Walker, and
Fernita Henry went to a convenience store in Tucson. Wall
entered the store and asked to speak to the manager about an
incident that he claimed had occurred the day before. Wall
would not discuss the matter in the store, suggesting instead
that he and the manager step outside to talk. The manager
agreed. Once outside, Wall tried to convince the manager to
move to the side of the store, but the manager refused.
¶3 While Wall was outside speaking to the manager, Henry
purchased a bottle of water and began questioning the store
clerk about lighters. At that time, the manager’s wife returned
from the bathroom to find Walker in the store’s office, looking
into an open safe. When she screamed, Walker grabbed her around
the neck, threw her against the door jamb, and fled. As Walker
ran from the store, Wall raised his voice and continued to talk
to the manager outside, seemingly in an attempt to divert the
manager’s attention. But the manager chased Walker, eventually
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catching and detaining him until police arrived. In Walker’s
clothing, the police found $80.
¶4 Wall was arrested several minutes after Walker ran out
of the store, as Wall and Henry were starting to drive away. He
initially denied knowing either Walker or Henry, but later
admitted that he knew both of them.
¶5 Wall was indicted on one charge of robbery or being an
accomplice to robbery. Throughout the trial, Wall denied having
anything to do with the crime. Indeed, he claimed to have had
no knowledge of the robbery until Walker ran out of the store.
¶6 While settling jury instructions, the trial judge
asked if Wall wanted a lesser-included offense instruction on
attempted robbery because the evidence did not clearly show
whether Walker took any money from the store. Wall declined,
saying that he preferred to “go on the indictment, all or
nothing.” The State then requested the attempted robbery
instruction.
¶7 In response to the court’s decision to give the
attempted robbery instruction, the next morning, before
summation, Wall requested that the court give a lesser-included
offense instruction on attempted theft.1 Wall asserted that the
1
Attempt occurs if the defendant “[e]ngages in conduct
intended to aid another to commit an offense, although the
offense is not committed or attempted by the other person.”
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jury could interpret his attempt to distract the store manager
as an effort to allow Walker to “take the money” without
threatening or using any force. The judge acknowledged “that
the jury could find that the plan here was to not necessarily
commit a robbery involving force or threat, but [to] commit a
theft by ruse.” But the State countered that Wall was legally
responsible for all of his accomplices’ foreseeable acts, which
in this case included robbery. Persuaded by the State’s
argument, the court declined to give the attempted theft
instruction Wall had requested.
¶8 The jury convicted Wall of attempted robbery, a class
five felony. The court sentenced him to an aggravated term of
5.5 years, based on three aggravating factors: the presence of
accomplices, Wall’s criminal record, and the emotional impact of
the crime on the victims. See Ariz. Rev. Stat. (“A.R.S.”) § 13-
702(C) (2002) (listing aggravating factors).
¶9 Wall appealed the trial court’s refusal to give the
lesser-included offense instruction. By memorandum decision,
the court of appeals affirmed the trial court’s decision, but on
grounds different from those used by the trial court. The court
A.R.S. § 13-1001(A)(3) (2001). Attempted theft of property with
a value less than $250 is a class two misdemeanor. A.R.S. §§
13-1001(C)(7) (attempt), 13-1802(E) (2001) (theft). Recall that
Walker had only $80 in his possession when he was arrested.
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of appeals interpreted State v. Van Adams, 194 Ariz. 408, 984
P.2d 16 (1999), as precluding a lesser-included offense
instruction if a defendant pursues an all-or-nothing defense,
such that he is either guilty of the charged offense or not
guilty at all. Because Wall denied any knowledge of the crime,
the court of appeals decided that the trial court’s refusal to
give the attempted theft instruction was proper under the Van
Adams rationale.
¶10 In a concurring opinion, Judge Eckerstrom acknowledged
that Van Adams appears to say that a defendant who pursues an
all-or-nothing defense is not entitled to a lesser-included
offense instruction. But the judge was troubled by the
application of the rule in this case. He noted that Wall
strenuously requested the theft instruction before summation,
and the instruction Wall sought was supported by a “plausible
interpretation of the evidence.”
¶11 We granted review to decide whether a defendant
automatically forfeits his right to a lesser-included offense
instruction by asserting an all-or-nothing defense. We have
jurisdiction in this case pursuant to Article 6, Section 5(3) of
the Arizona Constitution and A.R.S. § 12-120.24 (2003).
II. DISCUSSION
¶12 This court reviews a trial court’s denial of a
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requested jury instruction for an abuse of discretion. State v.
Anderson, 210 Ariz. 327, 343, ¶ 60, 111 P.3d 369, 385 (2005).
An error of law committed in reaching a discretionary conclusion
may, however, constitute an abuse of discretion. State v.
Green, 200 Ariz. 496, 502, ¶ 28, 29 P.3d 271, 277 (2001).
A. Requirements for Lesser-Included Offense Instructions
¶13 Arizona Rule of Criminal Procedure 23.3 requires the
trial judge to provide the jury with verdict forms “for all
offenses necessarily included in the offense charged, an attempt
to commit the offense charged or an offense necessarily included
therein, if such attempt is an offense.” If requested to do so
and the evidence supports it, the trial judge must also instruct
the jurors on all offenses “necessarily included” in the offense
charged. Ariz. R. Crim. P. 21.3(c) cmt.; State v. Celaya, 135
Ariz. 248, 251, 660 P.2d 849, 852 (1983).
¶14 Although the terms are often used interchangeably, a
“lesser included” offense is not always a “necessarily included”
offense for purposes of Rule 23.3. State v. Dugan, 125 Ariz.
194, 195, 608 P.2d 771, 772 (1980). An offense is “lesser
included” when the “greater offense cannot be committed without
necessarily committing the lesser offense.” Id. But an offense
is “necessarily included,” and so requires that a jury
instruction be given, only when it is lesser included and the
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evidence is sufficient to support giving the instruction. Id.
In other words, if the facts of the case as presented at trial
are such that a jury could reasonably find that only the
elements of a lesser offense have been proved, the defendant is
entitled to have the judge instruct the jury on the lesser-
included offense. Id. (citing Sansone v. United States, 380
U.S. 343, 351 (1965)).
¶15 In this case, Wall maintains that the trial court
should have given an attempted theft instruction because
attempted theft is a lesser-included offense of attempted
robbery and evidence in the record would have supported a
finding of attempted theft. Arizona law defines theft as
knowingly “[c]ontrol[ling] property of another with the intent
to deprive the other person of [the] property.” A.R.S. § 13-
1802(A)(1). Robbery adds the additional elements that the
property must be taken from a “person or [the person’s]
immediate presence,” and the taking must involve the use or
threat of force to coerce the surrender of the property. A.R.S.
§ 13-1902(A) (2001). Under our statutory scheme, theft is thus
a lesser-included offense of robbery because the greater offense
of robbery cannot occur unless a theft also occurs. Celaya, 135
Ariz. at 252, 660 P.2d at 853. Similarly, attempted theft is a
lesser-included offense of attempted robbery. See State v.
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Felix, 153 Ariz. 417, 420, 737 P.2d 393, 396 (App. 1986).
¶16 The rule requiring instruction on lesser-included
offenses is designed to prevent a jury from convicting a
defendant of a crime, even if all of its elements have not been
proved, simply because the jury believes the defendant committed
some crime. As the Supreme Court explained: “Where one of the
elements of the offense charged remains in doubt, but the
defendant is plainly guilty of some offense, the jury is likely
to resolve its doubts in favor of conviction.” Beck v. Alabama,
447 U.S. 625, 634 (1980) (quoting Keeble v. United States, 412
U.S. 205, 212-13 (1973)). Giving a lesser-included offense
instruction mitigates that risk. Id. at 637.
¶17 Arizona cases have consistently required a lesser-
included offense instruction if it is supported by the evidence.
See Celaya, 135 Ariz. at 253, 660 P.2d at 854 (“Since the
evidence before the jury would have supported a conviction of
theft and an acquittal of robbery, Celaya was entitled to the
requested lesser-included instruction.”); Dugan, 125 Ariz. at
196, 608 P.2d at 773 (to same effect); State v. McPhaul, 174
Ariz. 561, 564, 851 P.2d 860, 863 (App. 1992) (to same effect).
¶18 We deem evidence sufficient to require a lesser-
included offense instruction if two conditions are met. The
jury must be able to find (a) that the State failed to prove an
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element of the greater offense and (b) that the evidence is
sufficient to support a conviction on the lesser offense. State
v. Caldera, 141 Ariz. 634, 636-37, 688 P.2d 642, 644-45 (1984).
It is not enough that, as a theoretical matter, “the jury might
simply disbelieve the state’s evidence on one element of the
crime” because this “would require instructions on all offenses
theoretically included” in every charged offense. Id. at 637,
688 P.2d at 645 (quoting State v. Schroeder, 95 Ariz. 255, 259,
389 P.2d 257, 258 (1964)). Instead, the evidence must be such
that a rational juror could conclude that the defendant
committed only the lesser offense. Id. Whether attempted theft
in this case was a necessarily included offense requiring a jury
instruction thus turns on the sufficiency of evidence to support
the attempted theft instruction.
B. The Evidence in the Record2
¶19 In the case now before us, Wall was indicted as an
accomplice to a robbery. An accomplice is “a person . . . who
with the intent to promote or facilitate the commission of an
2
The State argues that the defense presented no evidence
that Wall intended to participate in a theft rather than in a
robbery, and thus the trial court properly denied the requested
lesser-included offense instruction. The court, however, must
consider all the evidence in the record, not just that presented
by the defense, when determining whether to give a lesser-
included offense instruction. See Celaya, 135 Ariz. at 252, 660
P.2d at 853.
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offense . . . [a]ids, counsels, agrees to aid or attempts to aid
another person in planning or committing the offense.” A.R.S.
§ 13-301 (2001). Based on this language, the State maintains
that Wall bears responsibility for any acts that he should
reasonably foresee that his partners might commit. The State
reasons that even if Wall did not know that his partners
intended to commit a robbery, he was an accomplice to robbery
nonetheless if he intended to facilitate the commission of some
crime.
¶20 This court has held, however, that such a construction
expands the words of the statute beyond their breaking point.
See State v. Phillips, 202 Ariz. 427, 435, ¶ 36, 46 P.3d 1048,
1056 (2002). The rule in Arizona is that “a defendant is an
accomplice . . . only if, intending to aid another in committing
an offense, he ‘[a]ids . . . another person in . . . committing
the offense.’” Id. (quoting A.R.S. § 13-301(2)). Thus it is
the intent of the one charged as an accomplice, rather than the
intent of the main actor, that controls the accomplice’s
criminal responsibility. Id. at 436, ¶ 37, 46 P.3d at 1057.
Therefore, on the accomplice liability theory on which Wall was
indicted, the appropriate inquiry is whether there was
sufficient evidence in the record from which the jury could
rationally conclude that Wall intended to aid Walker in
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committing a robbery, or whether the evidence supported a
rational conclusion that Wall intended to aid Walker only in
committing a theft.
¶21 Because reasonable foreseeability is not the test for
accomplice responsibility in Arizona, we hold that the trial
court erred in employing that test to preclude giving the
lesser-included offense instruction.
¶22 On the evidence in this case, the trial judge
concluded that there was sufficient evidence to support the
lesser-included offense instruction. He agreed “that the jury
could find that the plan here was to not necessarily commit a
robbery involving force or threat, but [to] commit a theft by
ruse.” The trial judge concluded that evidence that Wall
distracted the store manager by taking him outside to talk could
support a jury finding that he and Walker intended to steal
money from the store without anyone seeing Walker, rendering the
element of threat or force required for robbery missing. In
other words, the trial judge believed that the record contained
sufficient evidence from which the jury could rationally find
that the State failed to prove an element of robbery, but did
prove the elements of theft or attempted theft.
¶23 We defer to the trial judge’s assessment of the
evidence, State v. Monge, 173 Ariz. 279, 281, 842 P.2d 1292,
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1294 (1992), which in this case is borne out by our review of
the record. We hold that, in addition to the instruction on
attempted robbery, Wall was entitled to an instruction on the
lesser-included offense of attempted theft.
¶24 The court of appeals did not disagree that the
evidence supported the giving of a lesser-included offense
instruction, but felt itself bound by language in Van Adams, 194
Ariz. at 414, ¶ 14, 984 P.2d at 22, which it read as precluding
the instruction. We now turn to that question.
C. All-or-Nothing Defense
¶25 The court of appeals, while recognizing that the
evidence appeared sufficient to support the giving of a lesser-
included offense instruction, nonetheless affirmed the trial
court’s decision to deny Wall an instruction on attempted theft,
reasoning that such a conclusion was compelled by dictum from
this court’s opinion in Van Adams, 194 Ariz. at 414, ¶ 14, 984
P.2d at 22. The court interpreted language from that case to
mean that a defendant who employs an all-or-nothing defense is
never entitled to a lesser-included offense instruction. Such a
conclusion, however, is contrary to the analysis in the Van
Adams case itself and inconsistent with case law in Arizona.
¶26 In Van Adams, the defendant was convicted of first-
degree murder and attempted sexual assault. 194 Ariz. at 411,
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¶ 1 & n.1, 984 P.2d at 19 & n.1. Throughout the trial, Van
Adams’ theory of defense was mistaken identity, which this court
characterized as a complete denial of all involvement in the
murder. Id. at 414, ¶ 14, 984 P.2d at 22. The defendant never
argued the alternative theory that he lacked the premeditation
necessary for first-degree murder. Id.
¶27 On appeal, the defendant argued that the trial court
erred in not instructing the jury on the lesser-included offense
of second-degree murder. Id. at 413, ¶ 11, 984 P.2d at 21.
This court rejected that argument and affirmed the trial court
ruling, noting that the evidence showed that the defendant
struggled with the victim and ultimately “applied sufficient
pressure [on her neck] for a sufficient length of time to
asphyxiate her.” Id. at 414, ¶ 12, 984 P.2d at 22. That
evidence, the court concluded, “clearly” supported the jury’s
determination that the defendant “had sufficient opportunity to
reflect upon his actions and could have ceased his attack at any
time during the struggle,” thus satisfying the element of
premeditation. Id. The court ruled that a lesser-included
offense instruction is not appropriate “when the ‘defendant’s
theory of the case denies all involvement in the killing, and
[when] no evidence provides a basis for a second degree murder
conviction, . . . [and] the record is such that defendant is
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either guilty of the crime charged or not guilty.’” Id. ¶ 14
(quoting State v. Salazar, 173 Ariz. 399, 408, 844 P.2d 566, 575
(1992)) (alteration in original) (emphasis added).
¶28 Van Adams thus did not establish a bright-line rule
that a lesser-included offense instruction is never proper if a
defendant has asserted an all-or-nothing defense. Instead,
consistent with Arizona case law, the court analyzed whether
sufficient evidence supported giving the lesser-included offense
instruction. Id. ¶ 12. It concluded that the evidence did not
support the instruction. Id. ¶ 15.
¶29 As a practical matter, when a defendant asserts an
all-or-nothing defense such as alibi or mistaken identity, there
will “usually [be] little evidence on the record to support an
instruction on the lesser included offenses.” Caldera, 141
Ariz. at 637, 688 P.2d at 645. In the typical case, the
defendant “produces evidence that he simply did not commit the
offense and the state produces evidence that he committed the
offense as charged.” Id. Thus, “the record is such that
defendant is either guilty of the crime charged or not guilty.”
Salazar, 173 Ariz. at 408, 844 P.2d at 575. In such cases, “the
trial court should refuse a lesser included instruction” because
it is not supported by any evidence. Id.
¶30 But the evidence in the record can be sufficient to
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require a lesser-included offense instruction even when the
defendant employs an all-or-nothing defense. In Dugan, for
example, the defendant was convicted of robbing a convenience
store. 125 Ariz. at 195, 608 P.2d at 772. At trial, a store
clerk testified that the defendant and another man entered the
store together, the other man had a bulge in his coat, each
disabled a surveillance camera, and the defendant took money
from the register while the other man kept a lookout. Id. at
196, 608 P.2d at 773. The defendant testified that he entered
the store alone, saw another customer in the store but thought
nothing of it, bought cigarettes and beer, and left. Id. We
concluded in that case that the facts were such that the jury
could reasonably believe portions of the clerk’s story and
portions of the defendant’s story. Id. Under those facts, a
rational jury could find that the element of force or fear had
not been credibly established and therefore that the defendant
was guilty of theft but not robbery. Id. Thus the defendant’s
use of an all-or-nothing defense did not prevent this court from
requiring the lesser-included offense instruction because the
evidence was sufficient to support it. Id. The trial court’s
denial of the theft instruction in that case was therefore
error. Id.
¶31 Similarly, the record in this case contains sufficient
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evidence that Wall intended only a theft by ruse. A lesser-
included offense instruction should therefore have been given.
Nothing in Van Adams or other cases declining to require a
lesser-included offense instruction should be read as precluding
the giving of such an instruction in those circumstances in
which the instruction is warranted by the evidence.
III. CONCLUSION
¶32 The trial court and court of appeals erred in denying
the requested instruction. Because the evidence was sufficient
to support the lesser-included offense instruction, Wall was
entitled to the instruction on attempted theft. We therefore
reverse Wall’s conviction, vacate the memorandum decision of the
court of appeals, and remand the case for a new trial.
_______________________________________
Rebecca White Berch, Vice Chief Justice
CONCURRING:
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Ruth V. McGregor, Chief Justice
_______________________________________
Michael D. Ryan, Justice
________________________________________
Andrew D. Hurwitz, Justice
________________________________________
W. Scott Bales, Justice
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