Defendant appeals his conviction for robbery in the first degree. ORS 164.415. He contends that his motion for judgment of acquittal should have been granted, because there was insufficient evidence to support a conviction. He also assigns as error the refusal of the court to instruct on the lesser included offense of theft in the first degree and to give an instruction regarding the basis of his criminal responsibility. We reverse and remand.
Tracy Elliott entered a Kentucky Fried Chicken restaurant alone, and he robbed the restaurant at gun point of $250 in currency, loose coins and rolls of coins. An employe of the restaurant observed Elliott run to the back of a business a short distance away and saw a black over yellow car leaving the area behind the building where Elliott had gone. Later, a police officer investigating the robbery stopped a vehicle matching the description of the car given by the employe. Defendant was the driver and Elliott the only passenger. The officer searched defendant and found $231 in currency, loose coins, a broken roll of nickels and Elliott’s wallet. When asked by the officer about the coins, defendant said they were his.
Defendant testified that he had been called by Elliott to pick him up at the location near the restaurant. He stated that he knew nothing about the robbery until Elliott got in the car after the robbery. When told about the robbery by Elliott, he testified that he responded that that “is the most stupid, dumb, absurd thing I’ve ever seen anybody do.” He said he took the money from Elliott and was on his way to the restaurant to return it when he was stopped by the officer.
Elliott testified on behalf of defendant and corroborated defendant’s testimony regarding his lack of involvement in the robbery and his intent to return the money.
In his first assignment of error defendant contends that the evidence, including that presented for the defense, was insufficient to establish guilt of robbery beyond a reasonable doubt. The evidence viewed in a light most favorable to the state is sufficient to support the jury’s verdict.
State v. Krummacher,
In his second assignment, defendant contends that the court erred in rejecting his request to instruct the jury on the lesser included offense of theft in the first degree by receiving stolen property. ORS 164.095. He argues that the jury could find that he possessed the stolen money with the intent to permamently deprive the owner of it. The state agrees that theft in the first degree is a lesser included offense of robbery,
State v. Boucher,
In
State v. Naylor,
“* * * A defendant is entitled to an instruction on lesser included offenses if there is a disputed issue of fact enabling the jury to find that all the elements of the greater offense have not been proven, but that all the elements of one or more of the lesser offenses have been proven.” (Footnote omitted.)
See also State v. Williams,
There was a disputed issue of fact whether defendant was involved in the robbery, and the jury could have rationally found that all the elements of robbery were not proven. It was undisputed that defendant had money stolen in the robbery in his possession. The intent with which he possessed it was disputed. The jury could rationally find that he intended permanently to deprive the owner of the money. It is not necessary, as the state appears to argue, that the jury accept or reject defendant’s evidence in its entirety. It is not irrational for a jury to accept only part of the evidence a defendant presents. The requirements for instructing the jury on the lesser included offense of theft in the first degree were met, and it was error to deny defendant’s request.
*671 The jury’s finding of guilty of robbery may appear to be a rejection of defendant’s testimony in its entirety, thereby removing any basis for concluding the error was prejudicial. In State v. Naylor, supra, the court rejected such an argument:
“* * * One of the apparent reasons for the grant to the jury of this power [to consider lesser included offenses] is to avoid placing the jury in the position of making an all-or-nothing choice as between guilt and innocence where there is evidence which would justify a verdict of guilty of a lesser offense. The difficulty with presenting the jury with the all-or-nothing choice is that the jury may believe a defendant to be guilty of some apparent violation of the criminal code but not of the crime charged. The jury is then confronted with the choice of finding innocent a defendant it believes has been guilty of wrongdoing or finding a defendant guilty of a crime greater than that which the jury believes he has committed. * * *”291 Or at 198 . (Footnote omitted.)
The error was not harmless and requires reversal.
In his final assignment defendant contends that the court erred in failing to instruct the jury as follows:
“You are hereby instructed that mere presence at or near the scene of a crime is insufficient evidence upon which to base a conviction.”
Although the instruction recites a correct statement of a legal principle, it was properly rejected. The principle has most often been utilized in determining if there is sufficient evidence to submit the case to the jury.
See, e.g, State v. Allison,
Reversed and remanded for a new trial.