concurring in part and dissenting in part.
I respectfully dissent as to the conclusion reached in Part A of the majority opinion. In my view, the evidence adduced at trial was insufficient to sustain the defendant’s conviction for attempted robbery. More specifically, the prosecution failed to produce substantial and competent evidence upon which a rational trier of fact could conclude that Beebe intended to use force or fear to obtain money from the store clerk.
Putting aside for the moment the issue of Beebe’s mental health, the incident occurred during the daylight hours, about 8:00 a.m. The store video shows Beebe walking up to the counter next to the clerk. During the encounter, the clerk is reviewing a piece of paper and, at the same time, manipulating the cash register with no break in activity. There is no altercation and Beebe makes no *577aggressive or threatening movements. The clerk then turns her back on the defendant and walks away.
The clerk’s testimony was straightforward and brief. On direct examination she testified that Beebe walked in the door “came up to the counter and asked me to empty my till” and that “he looked a little dazed, kind of out of it, real quiet, real calm” and he “just walked up with his hands in his pockets, real mellow.” The clerk thought he was joking and laughed. Beebe repeated the statement and the clerk responded, “No.” Beebe repeated the statement again and added that “it is not a joke.” The clerk then left the counter and called her manager. On cross-examination, the clerk testified that Beebe did not brandish a weapon, did not verbally threaten her, and did not act aggressively or violently. When asked to describe Beebe’s demeanor, the clerk stated that “he just had a distant look in his eyes,” that “he wasn’t really focused on me so much as something else out there,” and that he “wasn’t all there.”
Beebe then left the store, walked a short distance away and sat down on the ground until the police arrived and he was arrested. Evidence at trial established that Beebe has mental health issues. The day before the incident, he was involuntarily committed to the custody of the Idaho Department of Health and Welfare, presumably with the full participation of the Kootenai County prosecutor’s office.
Appellate review of sufficiency of the evidence to sustain a criminal conviction is highly deferential to the jury verdict and appellate courts do not often vacate a conviction on this ground. Nonetheless, application of the standards cannot amount to complete deference, as this results in no review at all. The applicable standard of review is “whether there is substantial evidence upon which any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.” State v. Young, 138 Idaho 370, 372, 64 P.3d 296, 298 (2002). As the standard incorporates some objective components, namely “substantial” and “rational,” a limited amount of objective review is warranted.
In this light, my disagreement with the majority is not on the law regarding review of sufficiency of the evidence but in its application to the facts of this ease. Admittedly, review of the evidence regarding whether a defendant’s mental state has been proved is difficult, as that element must, in almost all eases, be inferred by the jury in the first instance from the defendant’s commission of acts and the surrounding circumstances. Here, the majority concludes that the circumstances support “a reasonable inference that Beebe’s intent was to obtain the money in the till by frightening the clerk into compliance.” I cannot agree, as inferences must be based upon facts and, here, there is lacking any substantial evidence that Beebe intended to frighten the clerk into compliance. Beebe had no weapon and did not act or speak in a threatening manner. Instead he was, according to the clerk, “dazed.” Indeed, the clerk did not testify that anything Beebe said or did was threatening or frightening to her, and her actions on the video are not those of a person so threatened or frightened. Simply stated, review of Beebe’s acts and the circumstances, including his mental condition, lead me to the conclusion that the State failed to prove the mental element of the crime beyond a reasonable doubt and no rational jury should have convicted on the evidence presented. I would so hold.
This being said, I fully concur in the majority’s conclusion in Part B that, given the weakness of the evidence presented, the prosecutorial misconduct was not harmless. Because Beebe’s judgment of conviction is not being vacated due to insufficient evidence, he can be retried.