Arizona Supreme Court Holds That A Defendant Has A Right To A Lesser-Included Offense Instruction If Sufficient Evidence Supports The Instruction, Even If The Defendant Has Presented An “All-Or-Nothing” Defense.

According to the evidence at trial, Defendant Emmet Wall, along with two accomplices, attempted to steal money from a convenience store through either force or ruse. The first possibility would have constituted robbery, or attempted robbery, while the second would have constituted theft or attempted theft. Wall’s sole defense was that he knew nothing of the robbery or theft of the store until after the fact. In response to the State’s successful request for an attempted robbery jury instruction, Wall requested that the trial judge give an instruction on the lesser-included offense of attempted theft. The trial judge denied Wall’s request because he reasoned that the State’s theory of accomplice liability rendered Wall criminally liable for his accomplices’ reasonably foreseeable attempted robbery. The jury convicted Wall of attempted robbery.

Division Two of the Arizona Court of Appeals affirmed, but on a different ground. The Court of Appeals concluded that State v. Van Adams, 194 Ariz. 408, 984 P.2d 16 (1999), precluded a lesser-included offense instruction when the defendant presented an all-or-nothing defense.

The Supreme Court reversed, rejecting both grounds. After concluding that attempted theft was a lesser-included offense of attempted robbery, the Court noted that a lesser-included offense instruction was warranted whenever a jury could conclude that (1) the State failed to prove an element of the greater offense, and (2) the evidence was sufficient to support a conviction on the lesser offense. Both parts were satisfied because, in the words of the trial judge, the “‘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 Supreme Court disapproved the State’s accomplice liability theory. The Court concluded that Wall was not liable for any reasonably foreseeable crimes of his accomplices. The proper test for accomplice liability under the facts was whether Wall intended to aid his accomplices in committing a robbery or committing a theft.

The Supreme Court also disagreed that Van Adams barred a lesser-included offense instruction whenever a defendant presented an all-or-nothing defense. The rule, rather, was that a lesser-included offense instruction was warranted when sufficient evidence supported the instruction. In Van Adams, it did not; here, it did.

Justice Berch authored the unanimous opinion.