State v. Reynolds

2013 UT App 112
_________________________________________________________

THE UTAH COURT OF APPEALS

STATE OF UTAH,
Plaintiff and Appellee,
v.
DALE EDWARD REYNOLDS,
Defendant and Appellant.

Memorandum Decision
No. 20110880‐CA
Filed May 2, 2013

Fourth District, Provo Department
The Honorable Fred D. Howard
No. 111400112

Margaret P. Lindsay and Douglas J. Thompson,
Attorneys for Appellant
John E. Swallow and Jeanne B. Inouye, Attorneys
for Appellee

JUDGE STEPHEN L. ROTH authored this Memorandum Decision, in
which JUDGES JAMES Z. DAVIS and J. FREDERIC VOROS JR.
concurred.

ROTH, Judge:

¶1 Defendant Dale Edward Reynolds appeals his conviction for
aggravated robbery, see Utah Code Ann. § 76‐6‐302(1)(a)
(LexisNexis 2012), challenging the trial court’s decision not to
instruct the jury on the lesser included offenses of retail theft, see id.
State v. Reynolds

§ 76‐6‐602(1), and aggravated assault, see id. § 76‐5‐103(1)(a).1 We
affirm.

¶2 After observing Reynolds acting suspiciously, the loss
prevention manager of a Kmart in Orem saw Reynolds run out of
an emergency exit without paying for the merchandise he was
carrying. The employee followed Reynolds out of the store and
called out to him to stop. The employee then chased Reynolds as
he ran across a small parking and loading area then off the store’s
property and across an adjacent street. As he crossed the street,
Reynolds was approximately one hundred feet away from where
he had exited the store, and the employee was about twenty feet
behind him. At that point, the pursuit had lasted less than ten
seconds. Reynolds then pulled out a gun, pointed it at the
employee, and said, “I’ll fucking kill you.” The employee stopped
his pursuit, and Reynolds fled.

¶3 Reynolds was later detained and charged with aggravated
robbery, among other things. At trial, Reynolds requested that the
court instruct the jury on the lesser included offenses of retail theft
and aggravated assault. The trial court declined to do so on the
basis that the evidence did not support the lesser included offenses.
The jury convicted Reynolds of aggravated robbery. On appeal,
Reynolds claims that the trial court abused its discretion in refusing
to instruct the jury on the lesser included offenses. See generally
State v. Berriel, 2013 UT 19, ¶¶ 8–9 (explaining that a district court’s
refusal to give a jury instruction is reviewed for an abuse of
discretion, though the precise amount of deference afforded on
review depends on the type of issue presented, and a factual
determination, such as whether the evidence supports a
defendant’s theory of the case and entitles him to a particular
instruction, is given more deference than a determination that is
more legal in nature).

1. Because the relevant statutory provisions are substantively
unchanged, we cite the current version of the Utah Code.

20110880‐CA 2 2013 UT App 112
State v. Reynolds

¶4 To be entitled to a jury instruction for a lesser included
offense, “a defendant must show (1) that the charged offense and
the lesser included offense have overlapping statutory elements
and (2) that the evidence ‘provides a rational basis for a verdict
acquitting [him] of the offense charged and convicting him of the
included offense.’” State v. Powell, 2007 UT 9, ¶ 24, 154 P.3d 788
(quoting State v. Baker, 671 P.2d 152, 159 (Utah 1983)); accord Utah
Code Ann. § 76‐1‐402(4). The State does not dispute that retail theft
and aggravated assault are lesser included offenses of aggravated
robbery in this case. Therefore, the issue presented for review is
whether the evidence provides a rational basis for acquitting
Reynolds of aggravated robbery but convicting him of the lesser
included offenses of retail theft and aggravated assault. In making
this determination, the evidence presented at trial must be viewed
“in the light most favorable to” Reynolds, see Powell, 2007 UT 9,
¶ 27, in order to determine if “there is a sufficient quantum of
evidence presented to justify charging the jury with [the] . . .
requested instruction[s].” See State v. Velarde, 734 P.2d 449, 451
(Utah 1986).

¶5 Under the circumstances of this case, in order to have
committed aggravated robbery, Reynolds must have used a
dangerous weapon—the gun—“in the course of committing
robbery,” Utah Code Ann. § 76‐6‐302(1)(a) (LexisNexis 2012); and
to have committed robbery, Reynolds must have used “force or
fear of immediate force against another in the course of committing
a theft,” see id. § 76‐6‐301(1)(b). In the context of the offenses of both
robbery and aggravated robbery, an act is considered to be “‘in the
course of committing’” a theft or robbery if it occurs “in the
immediate flight” from the commission of the underlying crime.
See id. §§ 76‐6‐301(2)(c), ‐302(3). Until he drew the gun, the only
crime Reynolds had committed was retail theft. See generally id.
§ 76‐6‐602(1) (defining the offense of retail theft). But once he used
the gun, the character of the crime became more complicated: the
general threat to use force itself potentially elevated the theft to
robbery, see id. § 76‐6‐301(1)(b), and the use of a dangerous
weapon—the gun—potentially elevated the robbery to aggravated
robbery, see id. § 76‐6‐302(1)(a). However, if the gun was not used
in the commission of the theft, its use to convey a threat would

20110880‐CA 3 2013 UT App 112
State v. Reynolds

amount to aggravated assault, see id. §§ 76‐5‐102(1)(b), ‐103(1)(a)
(defining the offenses of assault and aggravated assault). So for the
jury to convict Reynolds of aggravated robbery, it must have found
that he used the gun to threaten the employee in the course of
committing the retail theft, which includes the immediate flight
from the commission of that crime.

¶6 Reynolds asserts that the jury could have found that the gun
was not used “in the immediate flight” from a theft because the
evidence presented at trial shows that he did not use the gun in the
store or on store property but only when he was out of the store, off
store property, and across an adjacent street. He therefore contends
that there is a rational basis in the evidence for the jury to have
acquitted him of aggravated robbery and, instead, to have
convicted him of retail theft for taking the merchandise from the
store without paying, see id. § 76‐6‐602(1), and aggravated assault,
for threatening the employee with a gun, see id. § 76‐5‐103(1)(a). We
conclude, however, that the trial court acted within its discretion in
determining that there is no rational basis in the evidence for the
jury to have found that Reynolds did not use the gun in the
immediate flight from the commission of the theft.

¶7 When Reynolds threatened the employee with the gun, he
had barely left the business premises and was only a little over one
hundred feet from the store, a distance he had covered in less than
ten seconds. The employee had pursued Reynolds from the time he
exited the store, and his pursuit was interrupted only when
Reynolds drew a gun and uttered his threat to kill. Reynolds has
provided no authority for his proposition that the line between
“immediate flight” from the crime and some other event after the
commission of the crime that is no longer “in the course of” a retail
theft is drawn at the point where the thief crosses the retail store’s
property line, and we see no logical basis for such a distinction.
Because Reynolds’s use of the gun came at the end of an
uninterrupted, seconds‐long foot pursuit that ended only a stone’s
throw from the site of the theft, there is no rational basis for
instructing the jury on the lesser included offenses Reynolds

20110880‐CA 4 2013 UT App 112
State v. Reynolds

requested.2 These facts are simply not “ambiguous or susceptible
to alternative interpretations which would make it possible for the
jury to acquit” Reynolds of aggravated robbery and convict him
instead of retail theft and aggravated assault. See Velarde, 734 P.2d
at 453. We therefore conclude that the trial court did not abuse its
discretion in denying Reynolds’s request to instruct the jury on
lesser included offenses.

¶8 We affirm.

2. The parties have not presented any Utah case addressing the
meaning of “immediate flight” in this statutory context. But in the
context of felony murder, one commentator has noted that flight is
considered “sufficiently immediate” if there has “been no break in
the chain of events, as to which the most important consideration
is whether the fleeing [person] has reached a place of temporary
safety.” 2 Wayne R. LaFave, Substantive Criminal Law § 14.5 (2d ed.
2012 ) (footnote citations and internal quotation marks omitted); see
also State v. Archuleta, 850 P.2d 1232, 1244–45 (Utah 1993) (reasoning
that, in the context of felony murder, the phrase “in the commission
of,” like the phrase “while committing,” “denotes a continuing
chain of events” that indicates a “close proximity in terms of time
and distance” with “no break in the chain of events” (citation and
internal quotation marks omitted)).
Although we do not decide whether such a standard ought
to be adopted in determining whether a particular event takes
place in the course of “immediate flight” after the commission of
a crime, it is clear that when Reynolds threatened the employee
with the gun, there had been no break in the chain of events and
Reynolds had not reached a place of temporary safety. See, e.g.,
State v. Phillips, 2006 UT App 211U, para. 4 (per curiam)
(concluding that there was sufficient evidence to support a
conviction for aggravated robbery where the defendant had used
fear or force in the immediate flight after a retail theft when he had
displayed a knife during an attempt to escape the commission of
the crime).

20110880‐CA 5 2013 UT App 112