State v. Wall

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
________________________________________________________________

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:

_______________________________________
Ruth V. McGregor, Chief Justice

_______________________________________
Michael D. Ryan, Justice

________________________________________
Andrew D. Hurwitz, Justice

________________________________________
W. Scott Bales, Justice

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