*1 рart report, as of presentence view of records, adequate). court's argument court's subse
Polen's grant pauper counsel indi
quent decision to indigent status makes the statute
cates her must important to her situation
particularly reject fail. The same contention was
also court as it stated
ed the Mitchell ability to
Both determinations of [that eligibility indigent
pay restitution and sound discretion are within the
counsel] different; very the trial court and are
of appointment indigent counsel is to right representation
secure the for the compared
defendant and should not be punishment finding guilty. after a
Imposition a form of of restitution is
punishment although may cause hardship,
some the trial court has discre- the hard-
tion to determine the extent of
ship the defendant can still and whether payments.... after the
subsist
Id., Thus, the trial court's decision at 815. hearing ability on Polen's
not to conduct did error. pay not constitute
Reversed and remanded for modification with this
of the restitution order consistent
opinion.
MILLER, concurs. J.
CHEZEM, J., in result. concurs ASCHLIMAN, Appellant, A.
Rex
Defendant, Indiana, Appellee-Plaintiff.
STATE
No. 90A04-9006-CR-276. Indiana, Appeals
Court
Fourth District.
Sept. 1991. *2 Wayne, ap- for Wagoner, M. Fort
Linda peliant-defendant. Gen., Pearson, Atty. Geoff
Linley E. Gen., Davis, Indianapolis, Deputy Atty. appellee-plaintiff.
CONOVER, Judge. Defendant-Appellant Rex A. Aschliman (Aschliman) appeals his conviction Theft, felony D and his habitual a class 85- IND.CODE offender determination. 48-4-2; 85-50-2-8. affirm.
We following re- presents the for our review: stated issues exists sufficient evidence 1. whether the crime of every element of prove doubt; beyond a reasonable theft erred in the trial court 2. whether instruction on the refusing Aschliman's con- of criminal included offense lesser version; necessary pro- the trial court erred in Additional facts as 3. whether will be change motion for vided below. denying Aschliman's appointment motion for prosecutor; Aschliman first contends insufficient evi prosecutor, and special supports dence his conviction. He main *3 no regarding tains evidence exists his in in 4. the trial court erred whether tent, an element of the offense of theft. admitting State's Exhibit 5 over Aschli- although Asсhliman asserts intent is com objection. man's monly established circumstantial evi June, 1989, Mary Truman Lou and dence, determining intent, "the trier of Barger pull watched Aschliman into the fact must resort to reasonable inferences driveway. Barger Fiechters' Mr. watched surrounding based examination of the through as Aschliman binoculars walked Brief, Appellant's circumstances." at 8. - home, first to the door of the Fiechters' He further claims substantial evidence of garage then to the locked door which he probative value does not establish the ele unsuccessfully attempted open. to Aschli- thus, ment of intent and no reasоnable porch, man next entered the screened-in justified. inference as to his intent is Addi left, and to the went tool shed where the tionally, argues jury was confused pry Fiechters stored their bar. Aschliman intent, over the issue of as demonstrated then returned and re-entered the sereened- by question judge during their to the delibe porch pry and used the Fiechters' bar in rations.1 he contends his conviction attempt pry open to the doors from the disagree. must be reversed. We porch living area of the house. Mr. presented When a claim with of Barger description then wrote down a evidence, reweigh insufficient we nеither number, car and Aschliman's his license judge credibility the evidence nor home, telephoned the Fiechters' to (1980), Loyd witnesses. v. State 272 Ind. frighten Aschliman. Aschliman left 404, 1260, 1265, denied, 398 N.E.2d reh. porch, pry sereened-in threw the bar under 881, denied, 231, cert. 449 U.S. 101 66 S.Ct. tree, away. Barger and drove Mr. found Instead, only L.Ed.2d 105. we consider bar, doors, pry damage saw the to evidence most favorable to the State. Mer police. and then called the (1987), Ind., edith v. State 503 N.E.2d 882. If there is substantial evidence originally charged Aschliman was with verdict, support the affirm the we will con Burglary, felony, a class B amended an True, viction. Id. State has the bur charge Habitual Offender count. The introducing den of sufficient evidence from Attempted Burglary, later amended to in- jury can which the find the existence of Burglary. subsequent stead of Via a each beyond element the offense a rea amendment, (of bar), pry Theft a class (1987), Montego sonable doubt. v. State felony charges. D was added to the The Ind., However, 517 N.E.2d 75. because trial court directed a verdict Aschliman's state, intent is a mental finder fact regarding Attempted Burglary. favor generally must resort to reasonable infer jury then found guilty of Theft surrounding ences from the circumstances and determined him to be an Habitual Of- requisite to determine whethеr intent years fender. He was sentenced to two on Ind., Id.; Anglin exists. v. State charge year the theft awith 30 enhance- 490 N.E.2d 723. being adjudged ment an of- habitual suspended years fender. The court then 5 The statute under which Aschliman was appeals. provides sentence. Aschliman crime of theft deliberations, (on During following property), person 1. written ex- another the same is that change jury occurred between the and the trial guilty of theft? court: rely your Court: You must on written instruc- reads, Jury: person As the law of Theft if a again. tions. Read them I am not allowed to person's property enters onto another without questions specifically. your answer permission merely object moves an be- (R. 267-268). longing person to that from one location to 1151. The 567 N.E.2d (a) knowingly or intention- person A who control over ally exerts unauthorized give instructions decision as what court. Id. within the discretion trial person, intent of another with property person any part deprive the other theft, recently, Most use, D Holder commits a Class its value or (1991), Ind., 1250, 1256, N.E.2d our felony.... two-step test supreme court reiterated the Here, the tool Aschliman entered use to determine whether the trial we must bar, kept shed Mr. Fiechter where given court should have an instruction on screened-in returned and re-entered the First, deter lesser included offense. we in his porch, and used Fiechters' the claimed lesser offense is mine whether *4 gain entry to the attempt to unsuccessful inherently factually included in either or his at then abandoned house. Aschliman charg language of the statute and the tempt gain entry, left the screened-in to Next, examine ing document. Id. at 9. we porch, and bar into weeded threw hurriedly leaving. to determine it war area under a tree before the evidence whether inference yields evidence on the lesser offense. Sufficient ranted an instruction deprive the Fiecht- intended to An оn the lesser offense was instruction the use or of their ers of value evidentiary dispute if a serious warranted control. his unauthorized respecting the element that distin existed guishes greater from the lesser of Next, the trial court Aschliman contends fense. Id. refusing his tendered instruction erred included offense of conver- on the lesser step easily The first of the two is He conversion is a sion. maintains because answered in Aschliman's favor. There is theft a "seri- lesser included offense of question no conversion is a lesser included dispute" regarding exists whether ous distinguish offense of theft. The element distinguishing the element committed ing аnd criminal is the theft conversion greater, from the the trial lesser crime required deprive, intent to which refusing his instruction. court erred (1988), Ind.App., theft. v. State Thus, he his should be contends conviction Moncrief All 525 N.E.2d 1288. other elements granted. trial We dis- reversed and new is a are the same. conversion lesser agree. However, a included offense of theft. Id. Initially, we address the issue of automatically not entitled to defendant is The presented by as the State. waiver an on a lesser included offense. instruction State contends Aschliman waived the issue included Id. The fact a lesser offense is 8.3(A)(7), Ind.Appellate pursuant to Rule iрso does not within the crime failing to set out the instruction verba the defen entitle either the State or facto argument tim in the section of his brief. includ dant to an instruction on the lesser may in this issue be Accordingly, error Wojtowicz ed offense. v. State appellate deemed waived under our rule. Ind., 562, 563. It is well estab 545 N.E.2d 470 N.E.2d Collier v. State may properly lished a trial court refuse to However, 1343. Aschliman cites the regarding in give a tendered instruction in specific pages in the record where the supported by the cluded offenses when not appears, so consider this struction we will present at trial. Id. is the evidence Such аllegation of error. Id. situation. determining in whether an When subject discussion on this bellwether refused, properly struction we consid was (1979), 182 Ind. Roddy is found in v. State the instruction was a correct er whether App. 394 N.E.2d reh. denied. law, whether there was statement analysis, ex noteworthy J. Staton support giving the record the second plained in detail the use of instruction, and whether the substance test, relating prong of the to the evidence the tendered instruction was covered presented at trial. given. other instructions Avance v. State Step designed probative to insure that value raises two ... a "serious dis- given final instructions which arе pute" regarding whether the defendant jury conform to the issues and evi- in fact the distinguishing committed ele- guard against a dence before it. To vio- ment(s), an instruction form of ver- long standing principle, of this lation dict on the lesser included offenses examines that evidence which trial court given jury. (Emphasis should be prove disprove tends to commis- added). presents be "included" within the lesser included offense ... The test the defendant require By portion composed *5 above-quoted test would in most cases is not so sion of those elements which constitute court should not fense will quently, that evidence which the State included offense there is "evidence of cluded offense." on lesser offenses which were found to from which the jury should Based on its greater sion We note that a literal definition, of the elements which instruct of the trial courts to instruct the and lesser of elements which usually simple, support examination, a lesser included guilty greater only give indicate the commis- however. A trial jury of the could included when it finds that of such lesser in- charged application offense. Conse- probative an instruction the trial court on the properly compose charged comprise offense offenses. offenses. lesser value jury find of- is from, jury should be instructed on a lesser mit the intrude nal). tendered instruction ue, or a reasonable explicit serves as a expression that the standard for offense is an subjective appraisal of the dispute" court was lesser Court's use there is We jury dispute, jury % offense.... test utilized emphasize upon distinguishing any to determine the facts. The should be instructed on the permitted [*] "serious of the expression it would be catchphrase evidence the exclusive arbitrary defendant "k intended to (Emphasis determining the courts: When accept dispute" merely of inference [*] element(s), one. the basis of its probative еmpowered seriousness for the more did not com- province or refuse a [*] If Supreme "serious suggest when a a trial there- Origi- then val- [*] of employed step test two ... and verdict on a lesser includ- form of significant purposes. First, serves two simply ed because the evidence offense possibility compromise indicates that the lessens the of ver- committed defendant process jurors the lesser in the dicts between those who believe offense of guilty the defendant of the offense charged. acts which he or she was charged and those who believe him not added). (Emphasis guilty. dispute It is axiomatic that if no sure, To be evidence must establish regard exists to the elements with which the commission of the elements which distinguish greater offense from the comprise the included lesser offense lesser, guilty is defendant either order for an instruction and form of ver- charged guilty the offense or not go jury. dict on that offense to to the Second, offense. the test However, major focus of the eviden- effectuates application long-standing strict tiary on the test not elements of the principle that an instruction an offense, lesser rather on the ele- but given jury issue should not be to the ment(s) distinguish(es) which the offense support unless thеre is evidence to it. charged from the lesser included offense. words, dispute In other unless a serious the evidence which indicates that the If regarding is raised whether the defen- did in commit the dis- defendant fact distinguishing uncontroverted, dant committed the ele- tinguishing element is then the instruction on the lesser in- ment(s), there is no indication that all, culpability, if at is limited given cluded should not be defendant's offense If, however, juryA jury. ... evidence of to the lesser offense. verdict
764 in such guilty and was of the statutes defendant to the form that the effect 85- simply provided, to wit: 1.C. would made and offense cases lesser only of the digni- 43-4-2, peace and аgainst the the evidence-and with inconsistent
be (Emphasis of Indiana. the State (Citation ty of instruction. hence, improper an added). added). (Emphasis omitted). drafting factual 158). of the (R. By careful 110-112.
Roddy, at
information, the State
allegations
the evidence
examination
our
a lesser-
availability of
may foreclose
on two
focus
step,
must
we
the second
Avance, su-
offense instruction.
included
probative
1)
there
whether
questions:
Here,
charging informa-
at 1152.
pra,
offense was
included
the lesser
evidence
rather than
contemplates theft
clearly
tion
defendant;
2)
and wheth
by the
committed
conversion.
criminal
charged
evidence
er either affirmative
lack of
or a
examination
committed
turn to an
We now
offense was
it war
whether
to determine
the evidence
charged offense was
probative evidence
offense.
on the lesser
instruction
jury.
ranted an
Wo
presented
committed was
offense is war
on the lesser
Further,
if
An instruction
this
at 563.
supra,
jtowicz,
dispute ex
evidentiary
if a serious
support
ranted
both
reveals
examination
that distin
respecting the element
ists
conviction
offense
included
ing the lesser
conversion, the intent to
from
guishes theft
the commission
questioning
in
as the formation
deprive. Just
оn the less
offense, an instruction
killing may be as instan
kill and the
tent to
proper.
Id.
included offense
er
thoughts, Castella
as successive
taneous
statutes,
IC 85-
the relevant
A review of
N.E.2d
nos
35-48-4-8,
dis-
reveals the
and IC
43-4-2
232 Ind.
281; May v. State
*6
is
two crimes
of the
element
tinguishing
440,
439,
formation
so too with
N.E.2d
required for
is
deprive, which
intent to
the
in
deprivation
the
deprive and
the intent to
refused instruc-
The tendered but
theft.
instant case.
the
states
tion
Fiechters' tool
into the
Aschliman went
CONVERSION
kept
pry
his
bar.
Mr. Fiechter
where
shed
knowingly
intention-
or
person
"A
who
house, en-
the
returned to
then
Aschliman
over
control
unauthorized
ally exerts
and used the
porch,
the scrеened-in
tered
person commits
of another
property
living
gain entry into the
try and
pry
bar
conversion,
A misde-
a Class
criminal
Barger tele-
Mr.
the house. When
area of
-
meanor."
did
away, he
frighten Aschliman
phoned to
are that the
of this crime
The elements
Instead, he
pry
and flee.
drop the
bar
not
must:
defendant
pry
porch area with
left the screened-in
intentionally
knowingly or
1.
grassy
hand,
it into a
threw
in
then
bar
property
over
control
2. exert
tree. The
hanging pine
a low
area under
person
of another
3.
not return
Aschliman did
shows
record
is unauthorized.
the control
4. where
not leave it
keeping plaсe, did
to its
pry bar
254).
or in
other
(R.
porch,
in the sereened-in
Any of these actions
place.
conspicuous
provides
charging information
The
evidentiary
a serious
might have created
II
COUNT
Instead,
out of the
he walked
dispute.
June,
day of
the 4th
about
That on or
in his
bar
porch with
screened-in
1989,
County of Wells
in the
at and
throwing it beneath
possession before
defendant did
Indiana said
in the State
gives rise
Such
evergreen tree.
knowingly exert unautho-
and there
then
intend-
inference Aschliman
to a reasonable
of another
property
over
rized control
use and
deprive the Fiechters
toed
by Ken
prya
bar оwned
person, to wit:
pry bar.
of their
benefit
Fiechter,
with intent
S.
E. and Debra
any part of
Further,
discarded
fact Aschliman
person
other
deprive the
His
cause.
not aid his
does
contrary
use,
is
of which
or
all
its value
necessary to avoid an actual conflict
"loot",
his
coupled with
retention
probable
or there is
cause
for a
of interest
possession,
albeit
flight with it
his
prosecutor
has com-
while,
enough
for
"one
to believe
time
short
another," i.e.,
crime;
to form the
follow
thought to
mitted a
dep-
deprive and consummate
intent to
Here,
file a
Aschliman's decision to
not abuse its
The trial court did
rivation.
complaint
Disciplinary
Commis
with
was no serious
because there
discretion
against the
as
as a federal lawsuit
sion well
his
dispute
subject
evidentiary
on
ac
prosecutor
merely
were
his unilateral
proba-
There is no
or lack thereof.
intent
by any
supported
These were not
tions.
acted without the
evidence Aschliman
tive
independent con
judicial determination or
prong
second
deprive.
Roddy
intent to
firmation.
there was not "clear
of-
no lesser included
test demonstrates
appointment
convincing evidence that the
given.
have been
fense instruction should
conflict
necessary to avoid an actual
[was]
not, there
of interest." The trial court did
refusing
did not
The trial court
err
fore,
denying
request
err in
Aschliman's
instruction.
Aschliman's
tendered
special prosecutor.
for a
the trial court erred
Aschliman contends
Furthermore, prosecutorial vin
change
for
denying
his verified motion
prose
if
may be
dictiveness
established
appointment
motion for
prosecutor;
charging decision was motivated
cutor's
Aschliman maintains
special prosecutor.
doing
punish person
what
a desire to
prosecutor filed the information
plainly allows him to do. Jones v.
the law
knowing
facts and case law
burglary,
1228,
(1989), Ind., 540 N.E.2d
1229.
State
Next,
charge.
Aschli-
support
did
prosecute
It is well settled
decision
Discipli
argues
complaint
his
man
prosecu
prosecute
not to
lies within the
filing
of a federal
nary Commission and
long
prosecutor
as the
tor's discretion so
upon the conduct of
law suit based
probable cause to believe the accused
has
prior
against
case
prosecutor in a
same
Neeley v.
committed an offense.
prosecutorial
vindic
Aschliman resulted
(1983), Ind., 457 N.E.2d
534.
Further,
cites
tiveness.
(1983), App., 444 N.E.2d
Ind.
State v. Selva
(1982), 457
v. Goodwin
United States
denied,
the infor
reh.
and maintains
2485, 73 L.Ed.2d
U.S.
102 S.Ct.
*7
pursuant to this vin
mation was amended
stated
Suprеme Court
Thus,
the
Aschliman contends
dictiveness.
preparing a case for
In the course of
denying
request
erred in
for
trial court
trial,
addi-
prosecutor may uncover
the
disagree.
special prosecutor. We
a
suggests a basis
information that
tional
simply may
prosecution or he
appointment of
for further
governs
33-14-1-6
the
IC
pos-
realize that
information
come to
special prosecutors. Kindred v. State
signifi-
a
prose
by the State has broader
327. A
sessed
521 N.E.2d
proceedings,
stage of the
against
cance. At this
apparent prejudice
a defen
cutor's
satisfy
requirements
prop-
the
dant dоes not
assessment of the
prosecutor's
may
prosecution
not have
er extent of
special prosecutor.
a
Id.
appointment of
should re-
prosecutor
A
disqualified
erystallized....
prosecutors to be
To allow
to exercise
main free before trial
action of defen
merely upon the unilateral
to him to de-
lawsuits,
entrusted
dants,
lead to
discretion
e.g., filing
would
broad
interest
of the societal
termine the extent
consequences.
Id.
absurd
An initial decision should
prosecution.
part
provides
33-14-1-6
relevant
IC
the initial
future conduct....
not freeze
(b)
judge:
superior
A circuit or
court
may
prosecutor
charges
by
filed
a
if:
(2) may appoint
special prosecutor
a
an individual
extent to which
reflect the
(A)
person
petition
files a verified
a
subject
prosecution.
legitimately
to
spe-
requesting
appointment of a
at 2492-2493.
S.Ct.
prosecutor; and
cial
charg
Here,
initial information
(B)
by clear and con-
the court
finds
-
probable cause.
ing burglary
filed with
was
vincing
appointment
that
evidence
witness,
a
not listed on
(R. 62).
determination
called rebuttal alibi
The court's eventual
list,
prima
testified the
present
to
the State's witness
who
prosecutor failed
testimony
of sufficient
The State
of lack
alibi
was fabricated.
facie case because
of intent does not
on the issue
pri-
the witness five months
had contacted
Secondly,
its
the initial determination.
or to trial but did not list the witness on
affect
charge
remanding
not filed
reversing
offender
was
the habitual
witness list.
prosecutor
decision,
filed this
vindictively. The
district court's
the Seventh
-
prior
Aschliman's
charge
months
to
two
Circuit stated
change
prosecutor,
request
based
Thus,
plainly prejudicial
effect of the
probable cause
prosecutor's
belief
prosecution's
decision to omit
deliberate
prior
had
un
existed to show Aschliman
McDonald frоm its
the name of Sharon
Finally,
felony
al
related
convictions.
requires
more
witness
list
that we do
though
prosecutor
amended the infor
simply conclude that Mauricio
than
count of theft on
mation to include the
procedural
should have resorted to the
28, 1989, subsequent
Aschli-
August
to
remedy
seeking
a continuance what
20, 1989,
ap
September
request for
man's
attempt,
desperate
have been a
would
change
or
pointment
special prosecutor
mitigate
apparent
jury,
the dam-
has shown no
prosecutor,
Aschliman
devastating
age
by
inflicted
rebuttal
by
prosecutor in
statutory violations
testimony
surрrise
witness.
State's
filing,
a causal con
this
nor has he shown
existence Where, however, the lesser offense is if he felt it produce prior it to trial gan to greater, pros- inherently included in the pretrial preparation. necessary for was charging ecutor cannot avoid it the infor- Furthermore, request a did not unnecessarily belaboring mation. Without continuance, a like would have been which case, what is a nonissuе this seems to Long measure. ly remedial clearly me that this distinction should be Thus, 875, 877. Ind.App., 431 N.E.2d step analysis. regarding drawn the first admitting err in State's trial court did not prosecutor To includ- hold that because the 5 into evidence. Exhibit allegation ed in the of the information an distinguishes greater element which Affirmed. inherently from the included lesser offense he excluded the lesser offense from consid- CHEZEM, J. concurs. eration, is to hold that the defendant will GARRARD, separate dissents with J. be entitled to an instruction on never opinion. inherently included lesser offense. Of GARRARD, dissenting. Judge, course, charge prosecutor intends to disposition greater purpоse offense. That is the I in the While concur issues, charge the information: to the most seri- I dissent to the determination other ous offense to which the state believes the not committed that reversible error was to answer. But give refused to Aschliman's defendant should be held when the court so, the state does it has definition when instruction on criminal conversion tendered inherently charged also all included lesser as a lesser included offense. Thus, then shift offenses. our review must out, majority points As the the distinc- step analysis because to the second and the crime of tion that offense between conclusively step thе first answered. Aschliman was theft with which step second we are to deter- deprive is the intent to Under the and convicted whether, under the evidence adduced property or use of the mine owner of value trial, jury might reasonably deter- by the theft statute. 35- at required See 1.0. committed mine that the lesser offense was 48-4-2 and 8. pur- greater one not. The while the was analysis majority step In the first compromise pose this review is to deter concludes, agree, I that conversion is a concern then focuses verdicts. necessarily included offense because one greater distinguishes that the element of theft cannot commit the crime without If that element from the lesser offenses. necessarily committing all the elements of indisputably the evi- established that, Having ap conversion. said it then dence, should lesser offense instruction majority's later refer pears to me be refused. language prosecutor's choice of ence question next drafting superfluous It seems to me that the the information is *9 potentially misleading. That line of By and appellate thus becomes: what review judge sufficiency the should we analysis, which emanates from Jones v. standard distinguish Ind., of that (1982), logi disputed 972 can nature 438 N.E.2d State supply ing Indiana decisions cally only application have to instances element? - inherently employed, where a lesser offense is not in the some variations words (i.e., necessarily) may included but never is not probably the choice of term because many the in of factually critical to the outcome theless become included because Ind., (1989) See, by e.g. in cases. v. State alleged of the facts the state the Owens (evidence distinguishing example An 1375 of charging information. 544 N.E.2d 768 they appropriate are to the facts in evi- and without serious "compelling
element (1986) dence. conflict"); 499 v. State Gordon (evidenсe distinguishing ele- N.E.2d 228 The drafters of the Model Penal Code "clear"); 270 ment State Wolfe provided that the court should not be obli- (whether 81, 317 there was Ind. 383 N.E.2d charge jury respect to an gated to with in- the included offense evidence to which "unless is a rational included offense there applicable); Roddy v. struction was acquitting the defendant basis for verdict 1098, Ind.App. 394 N.E.2d 182 charged convicting of the offense him (when proba- there is ALI, of the included offense." Model Pe- value, there- or a reasonable inference
tive
Code,
1.07(5).
appears
It
to me that
nal
§
the defendant did not commit
from that
terminology captures the essence of
this
element).
distinguishing
decisions,
in
our
with the caveat
that
close
jury
constitutionally
is the
em-
cases
(1980) 447 U.S.
In Beck v. Alabama
powered body to determine the facts and is
LEd.2d
Su
100 S.Ct.
beyond
so
doubt.
do
reasonable
preme
considered Alabama's
refusal
Court
did not
felony
on
murder which
instruct
Turning
appeal,
to Aschliman's
the facts
penalty
lesser included
carry the death
as a
pry
from
disclose that he took a
bar
penalty murder case.
offense in a death
attempt
pry
shed and then used it to
reversing,
quoted
approval
the Court
with
open the door
He
and enter the house.
in
from its earlier dеcision Keeble v. Unit
clearly exerted unauthorized control of the
205, 208,
(1978),412 U.S.
93 S.Ct.
ed States
permission.
since he used it
bar
without
1993, 1995,
Moreover, petition- to a it is no answer by throwing grass by into the an bar it on a jury er's demand for a instruction evergreen tree near the sidewalk. argue that a defendant lesser offense to in- may off without such an be better disagree majority's I do not with the True, prosecution if has struction. support conclusion this that evidence would beyond not a reasonable established not, however, a verdict of theft. It did so every elemеnt of the offense doubt clearly deprive his intent to as to establish charged, if offense instruc- no lesser jury leave no rational basis for the to deter- offered, must, jury a theo- tion is as merely mine that he intended the unautho- matter, acquit retical return a verdict they given use of had rized conversion been tal. But a defendant is entitled to a opportunity to do so. Had Aschliman instruction-in this con- lesser offense away carried the with him and discard- any other-precisely text or because he so that it ed it some manner would exposed owner, likely should not be substantial be found be as throw- diverge jury's practice ing leaving risk that the will in a ditch or it even theory. one of the elements from Where would, away, distance there I road some doubt, agree, saying rational of the offense remains be no basis deprive plainly guilty of he did not intend to the owner but defendant meaning offense, likely the bar theft jury to resolve within some statute, though even he did not wish to sell of conviction. its doubts favor us, keep the bar. On the facts before Thus, the determined that Beck Court however, I must conclude that the court option" providing jury with the "third by refusing error the instruc- committed convicting included offense on a lesser tion. jury ensures that the accord the defen- will and re- the reasonable I would reverse the conviction dant the full benefit of for a trial. mand new standard. doubt expressly limit While Beck the Court penalty
ed its decision to death determina-
tions, reasoning the con- its underscores
cern for included offense instructions when