Dunbrack was unable to explain how N.R.’s possessions ended up in the front passenger seat of her car or how he came to be completely undressed. She did not provide any insight into the circumstances of the theft or how the fire was started. Nothing in Dunbrack’s version of the events “jumps off the page” as indicative of theft. Neither Dunbrack nor Rodriguez requested an instruction on theft, and the trial court was not required to scour the record for a combination of facts to justify giving such a lesser-included jury charge.
The trial court did, however, instruct the jury on self-defense and use of force in the protection of others, as a result of Dunbrack’s testimony. If the jury believed Dunbrack’s version of events, they were armed with the ability to acquit her and Rodriguez of the most serious charges. The jury, however, declined to do so.
The jury determined that this was an armed robbery. If this case — in which a victim’s belongings were taken and he was found beaten, bloodied, and lying naked on the ground in the fetal position — is representative of one in which a lesser included theft charge “jumps off the page,” then it is hard to imagine any robbery case that would not require such a charge. In sum, we find no error in the trial court’s omission of a theft charge, let alone plain error.
The Court’s recitation of the serious nature of the assault does not logically mean that there was clearly not a robbery. The determining factor was whether the beating was motivated by the acquisition of property as opposed to the nature of the injuries. That is to say, the motive for a severe beating could just as easily be anger or revenge that is unconnected to the acquisition of property. Here, there was evidence of an attempted sexual assault that sparked the violent encounter.
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