State v. Bell

563 P.2d 186, 1977 Utah LEXIS 1113

Opinions

TIBBS, District Judge:

The defendant seeks reversal of a jury conviction of burglary because the trial court refused to give an oral requested instruction for lesser included offenses of trespass and attempted burglary.

We affirm the conviction.

Two girls were driving south on State Street in Salt Lake City shortly after midnight on May 9, 1975. Near a pawn shop the girls saw appellant. They pulled over and talked to him and then drove away. Later the girls drove back and saw appellant looking in the window of the pawn shop. The girls turned again and proceeded south a second time. They then saw him in front of the pawn shop with something in his hands. One of the windows had been broken and a bag of golf clubs was hanging out through the opening. The girls continued south, turned again, saw a police officer who had answered the burglar alarm at the pawn shop. The officer arrested appellant a short distance away. The girls identified defendant as the person they had previously talked to and observed.

There were no stolen items found in his possession or at his apartment. The girls testified that when they noticed appellant he had a plastic bag with something white in it and appeared to be very drunk. The officer recognized the odor of glue coming from the appellant. Some of the broken window glass had glue on it and a plastic bag was found directly below the broken window. The appellant had several slivers of glass on his right coat sleeve. The owner of the business indicated there was no possibility of knowing if anything was missing from the window.

During the trial the attorney for the defense made oral request for instructions for lesser included offenses of trespass and attempted burglary, which the court refused.

The defense should have made its request in writing in conformity with Rule 51, Utah Rules of Civil Procedure. This court may however in its discretion and in the interest of justice review the giving or failure to give needed instructions.

After a review of the record this conviction is supported by ample evidence and there is no “substantial” or “reasonable” evidence to base the orally requested instruction.¹

The evidence of breaking of the glass window made it a question for the jury to determine if an entry had been made with an intent to steal. The defendant testified he was not even there, basing his defense on mistaken identity. Consequently, it was either burglary or nothing.

This court in State v. Dougherty2 discussed the situation in which the problem of included offenses is encountered. The trial court should give the instructions for lesser included offenses whenever, by any reasonable view of the evidence, the defendant would be guilty of the lesser included offense. The instructions for included offenses may be properly refused if the prosecution has met its burden of proof on the greater offense and there is no evidence tending to reduce the greater offense.

Whenever this court believes beyond a reasonable doubt that the error in not giving the instruction would not have affected the verdict the case should not be reversed.³ That is the situation and the conviction is affirmed. '

ELLETT, C. J., and CROCKETT, J:, concur.

Footnotes

1

. State v. Gillian, 23 Utah 2d 372, 463 P.2d 811 (1970).

2

. State v. Dougherty, Utah, 550 P.2d 175 (1976).

3

. State v. Kazda, Utah, 540 P.2d 949 (1975); State v. Scandrett, 24 Utah 2d 202, 468 P.2d 639.