Opinion
No. 77-313
Decided October 12, 1978. Rehearing denied November 9, 1978. Certiorari granted February 13, 1979.
Convicted by a jury of aggravated robbery and conspiracy, defendant appealed.
Affirmed
1. CRIMINAL LAW — Jury Instructions — Aggravated Robbery Charge — Instruction on Simple Robbery — Declined — Instruction on Theft — Non-Included Offense — Condition — Stated. Where a defendant is charged with aggravated robbery and declines the court's offer to instruct on simple robbery, the court is obligated to instruct on the lesser non-included offense of theft only if there is no evidence of the defendant's guilt of the lesser included offense of simple robbery.
Appeal from the District Court of the City and County of Denver, Honorable Susan Graham Barnes, Judge.
Dale Tooley, District Attorney, O. Otto Moore, Assistant District Attorney, Brooke Wunnicke, Chief Appellate Deputy District Attorney, for plaintiff-appellee.
J. Gregory Walta, Colorado State Public Defender, Lee Belstock, Deputy State Public Defender, for defendant-appellant.
Defendant, Louis F. Graham, appeals his jury conviction of aggravated robbery and conspiracy to commit aggravated robbery in violation of §§ 18-4-302 and 18-2-201, C.R.S. 1973, respectively. We affirm.
There was a conflict in the evidence as to whether defendant was armed with a weapon when the robbery occurred. The victim testified that he was approached in downtown Denver by one McCormick who offered to provide him with a female escort, and that when he refused the offer he was hit on the back of the head by defendant and forced at gunpoint to get into a car. The victim further testified that defendant held a shotgun against the back of his head while McCormick drove the car to City Park, and that when they arrived at the park, defendant instructed the victim to empty his pockets. The victim handed over his wallet which contained a "couple" dollars and several credit cards. McCormick and defendant then drove away.
Defendant testified that the victim had voluntarily accompanied McCormick to the car and rode with them to the park. Defendant admitted that after they stopped in the park, he told the victim that he had a "goose gun" and ordered the victim to put his wallet on the dashboard. Defendant further admitted that at the time of the robbery there was a shotgun lying on the back floor of the car next to his feet, but denied that he had picked the shotgun up or pointed it at the victim.
Defendant was subsequently arrested in Wyoming after he attempted to obtain some cash by using one of the victim's credit cards. A shotgun was found in the trunk of defendant's car. No evidence was introduced as to the value of the stolen credit cards.
Defendant's theory was that the victim had lied about being forced to accompany McCormick and defendant to the park because, being married, the victim did not want to admit that he had accepted McCormick's offer of a female escort.
At the close of the evidence, both defense counsel and the prosecuting attorney rejected the trial court's offer to give the jury an instruction on simple robbery as a lesser included offense of aggravated robbery. See §§ 18-4-301 and 18-4-302, C.R.S. 1973. Defendant did request an instruction on the lesser non-included offense of theft, § 18-4-401, C.R.S. 1973 (1976 Cum. Supp.), and tendered an instruction on theft which did not set forth any limitation as to the value of the items stolen. He also requested that the court instruct the jury, as a matter of law, that the value of the stolen items was less than $50.
Relying on People v. Rivera, 186 Colo. 24, 525 P.2d 431 (1974), the trial court ruled that defendant was entitled to an instruction on the lesser non-included offense of theft. However, because there was no evidence in the record to support a finding that the value of the items stolen exceeded $50, the trial court defined theft as the taking of a thing of value less than $50.
Defendant asserts that the trial court erred in not deleting the $50 value limitation from the theft instruction, or, in the alternative, in failing to instruct the jury, as a matter of law, that the stolen items were not worth more than $50. Defendant argues that, under the instructions as given, if the jury believed the value of the stolen items exceeded $50, they could not find him guilty of theft. Thus, he would have been effectively denied his right to an instruction on his theory of the case. We disagree.
Defendant's own theory of the case — that he obtained the items from the victim by threatening the use of a non-existent gun — is tantamount to an admission of simple robbery. See § 18-4-301, C.R.S. 1973. Yet defendant refused the trial court's offer to instruct on this offense. Under these circumstances, we do not believe that the trial court was obligated to instruct the jury on the lesser non-included offense of theft.
[1] A defendant is entitled to an instruction on a lesser non-included offense if there is some evidence indicating that he is guilty of the lesser and not guilty of the greater. People v. Rivera, supra. However, Rivera and its companion cases did not involve, as this case does, the added complexity of a lesser included offense which fully and fairly presents the defendant's theory of the case, but on which the defendant chooses not to have the jury instructed. We conclude that where, as here, the defendant is charged with aggravated robbery and declines the court's offer to instruct on simple robbery, the court is obligated to instruct on the lesser non-included offense of theft only if there is no evidence of the defendant's guilt of the lesser included offense of simple robbery. Accordingly, the defendant was not prejudiced by the instruction given by the trial court, even if erroneous.
Defendant also contends that the trial court should have granted his motion for a mistrial because of the prosecutor's improper comments during closing argument. We agree with defendant that the prosecutor's remarks, which repeatedly called into question the correctness of the trial court's instructions on theft, were improper. However, since we have concluded that defendant was not entitled to an instruction on theft, the prosecutor's remarks during closing argument were harmless, and do not warrant a reversal of defendant's convictions. Crim. P. 52(a).
Judgment affirmed.
JUDGE RULAND and JUDGE VAN CISE concur.