State v. Oseguera-Lopez

2020 UT App 115
THE UTAH COURT OF APPEALS
S TATE OF U TAH ,
Appellee,
v.
R OGELIO O SEGUERA -LOPEZ ,
Appellant.
Opinion
No. 20190176-CA
Filed August 13, 2020
Third District Court, Salt Lake Department
The Honorable Adam T. Mow
No. 181904038
Andrea J. Garland and Elise C. Lockwood, Attorneys
for Appellant
Sean D. Reyes and William M. Hains, Attorneys
for Appellee
JUDGE DIANA H AGEN authored this Opinion, in which
JUDGES M ICHELE M. C HRISTIANSEN F ORSTER and R YAN M. HARRIS
concurred.
HAGEN, Judge:
¶1 	On Christmas Eve, Rogelio Oseguera-Lopez entered a
department store, grabbed $1,000 worth of merchandise, and
attempted to leave without paying. When stopped by store
employees, Oseguera-Lopez displayed a knife and then made
his way toward a different exit. He was thereafter arrested and
convicted of aggravated robbery. On appeal, Oseguera-Lopez
contends that the district court committed reversible error by
declining to instruct the jury on the uncharged crime of retail
theft and by denying his motion for a directed verdict. We reject
his arguments and affirm.

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BACKGROUND1
¶2 	One 	Christmas 	Eve, 	Oseguera-Lopez 	entered 	a
department store with a flashlight, an unsheathed hunting knife,
a folding knife, and a pair of wire cutters. He also had $20 in his
pocket but carried no other means of paying for merchandise.
¶3 	Oseguera-Lopez went to the luggage department, took a
duffel bag out of its box, and placed the unsheathed knife and
flashlight inside it. He then carried the duffel bag to the handbag
department, selected a handbag, and placed the handbag on the
floor next to the open duffel bag.
¶4 	By this point, Oseguera-Lopez had attracted the attention
of the store’s loss prevention team, who had been observing his
behavior 	via 	security 	cameras. 	A 	loss 	prevention 	employee
followed Oseguera-Lopez around the sales floor to keep an eye
on 	him. 	Then, 	while 	Oseguera-Lopez 	was 	distracted, 	the
employee grabbed the duffel bag and handbag, hid them behind
a 	register, 	and 	continued 	observing 	Oseguera-Lopez 	as 	he
selected more handbags.
¶5 	At the request of the loss prevention staff, a merchandise
manager approached Oseguera-Lopez to ask if he needed help.
He declined the offer of assistance and continued looking at
handbags for another ten to twenty minutes, but he seemed to
become increasingly agitated. Oseguera-Lopez asked another
store employee if she knew where the duffel bag was. When the
employee 	claimed 	that 	she 	did 	not 	know, 	Oseguera-Lopez
grabbed four handbags at once and headed toward the store’s
1. “On appeal, we review the record facts in a light most
favorable to the jury’s verdict and recite the facts accordingly.
We present conflicting evidence only as necessary to understand
issues raised on appeal.” State v. Jones, 2020 UT App 31, n.1, 462
P.3d 372 (cleaned up).

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20190176-CA 	3 	2020 UT App 115
south exit. Walking quickly, he passed several cash registers,
including the final point of sale before the exit, but made no
attempt to pay for the handbags he was carrying.
¶6 	As he approached the south exit, Oseguera-Lopez was
intercepted by the merchandise manager. As he approached her,
he asked, “Where’s my duffel bag?” The merchandise manager
responded, “I don’t know what you’re talking about.” Oseguera-
Lopez inquired if the store had any security cameras, and the
merchandise manager informed him that security cameras were
handled by a different department but that she could look into it
for him if he handed her the handbags he was carrying.
¶7 	Oseguera-Lopez handed the merchandise manager one
handbag. Then, as he handed over a second handbag, he used
his other hand to reach into his pocket and pulled out the
folding 	knife. 	Although 	he 	never 	unfolded 	the 	knife, 	he
displayed it in his open palm in a manner the merchandise
manager described as “very aggressive.”
¶8 	The loss prevention manager, who had been watching the
situation unfold, saw the knife and immediately told someone to
call the police. At that point, Oseguera-Lopez flipped off the
store employees, swore at them, and quickly walked away. He
made his way toward the north exit, pausing briefly to ask other
store employees if they knew where the duffel bag was. When
he was three to four feet away from the north exit, but still inside
the store, Oseguera-Lopez was stopped by a responding police
officer.
¶9 	The officer and loss prevention staff took Oseguera-Lopez
to the store’s loss prevention office for questioning. They asked
him his name, where he lived, his address, how he had traveled
to the store that day, and if there was anyone waiting for him. In
response, Oseguera-Lopez told them that his name was “Javier”
and provided several false birth dates. When asked to explain
his actions at the store, Oseguera-Lopez said that “his friend told

State v. Oseguera-Lopez
20190176-CA 	4 	2020 UT App 115
him to come and get [the handbags], and that his friend was
going to take them back to Mexico.” The officer searched a law
enforcement 	database 	using 	the 	information 	that 	Oseguera-
Lopez had provided. When the officer could not find any match
in his database, he took Oseguera-Lopez’s fingerprints. The
fingerprints later revealed Oseguera-Lopez’s identity.
¶10 	The officer reported the case as a “retail theft,” but did not
arrest 	Oseguera-Lopez 	because 	nobody 	was 	available 	to
transport him to jail. Instead, the officer escorted Oseguera-
Lopez off the store’s property. The total value of the items
Oseguera-Lopez attempted to take from the store totaled just
over $1,000.
¶11 	The 	State 	charged 	Oseguera-Lopez 	with 	aggravated
robbery and providing false personal information to a peace
officer. 	At 	the 	close 	of 	the 	State’s 	case 	at 	trial, 	Oseguera-
Lopez 	moved 	for 	a 	directed 	verdict, 	which 	the 	district
court 	denied. 	The 	defense 	then 	rested 	without 	presenting
evidence.
¶12 	In a discussion with the district court after the close of
evidence, Oseguera-Lopez’s counsel revealed that she intended
to argue at closing that Oseguera-Lopez committed retail theft—
not aggravated robbery—and that the State had overcharged
him. In accordance with this theory, Oseguera-Lopez requested
two jury instructions on the subject of retail theft. The court
denied the requested instructions.
¶13 	Oseguera-Lopez 	also 	requested 	the 	following 	jury
instruction on the elements of “attempt” as a crime:
A person is guilty of an attempt to commit a crime
if he:
(a) Engages in conduct constituting a substantial
step toward commission of the crime; and

State v. Oseguera-Lopez
20190176-CA 	5 	2020 UT App 115
(b)(i) intends to commit the crime; or
(b)(ii) 	when 	causing 	a 	particular 	result 	is 	an
element of the crime, he acts with an awareness
that his conduct is reasonably certain to cause the
result.
Conduct 	constitutes 	“a 	substantial 	step” 	if 	it
strongly corroborates the actor’s mental state as
described above.
Pointing to the references to “attempt” in Utah’s robbery statute,
see 	Utah 	Code 	Ann. 	§ 	76-6-301(2)(a)–(c) 	(LexisNexis 	2017),
Oseguera-Lopez argued that the jury needed to be given the
“specific legal 	definition” 	of 	attempt. 	But 	the 	district 	court
disagreed and denied the instruction.
¶14 	The jury convicted Oseguera-Lopez as charged. He now
appeals from his aggravated robbery conviction.
ISSUES AND STANDARDS OF REVIEW
¶15 	Oseguera-Lopez contends that the district court abused its
discretion by denying his request for the two jury instructions
relating 	to 	retail 	theft 	and 	his 	request 	for 	an 	instruction
providing the elements of attempt. “We review a district court’s
refusal to give a jury instruction for abuse of discretion.” Miller v.
Utah Dep’t of Transp., 2012 UT 54, ¶ 13, 285 P.3d 1208.
¶16 	Oseguera-Lopez also argues that the district court erred
by denying his motion for a directed verdict because “the State
presented insufficient evidence that [he] took personal property
from the immediate presence of another person with a purpose
to deprive the person of the property.” “We review the district
court’s denial of a motion for directed verdict for correctness.”
State v. Barner, 2020 UT App 68, ¶ 9, 464 P.3d 190 (cleaned up).

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20190176-CA 	6 	2020 UT App 115
But because Oseguera-Lopez “challenges the denial of a motion
for directed verdict based on the sufficiency of the evidence, the
applicable standard of review is highly deferential.” See id.
(cleaned up). “We will uphold the district court’s denial if, when
viewed in the light most favorable to the State, some evidence
exists from which a reasonable jury could find that the elements
of the crime have been proven beyond a reasonable doubt.” Id.
(cleaned up).
ANALYSIS
¶17 	On appeal, Oseguera-Lopez challenges his conviction for
aggravated robbery. As applicable to this case, a person commits
aggravated robbery if he “uses or threatens to use a dangerous
weapon” “while in the course of committing robbery.” Utah
Code 	Ann. 	§ 	76-6-302(1)(a) 	(LexisNexis 	2017). 	A 	person 	is
“committing robbery” when he “intentionally or knowingly uses
force or fear of immediate force against another in the course of
committing 	a 	theft 	or 	wrongful 	appropriation.” 	Id. 	§ 	76-6-
301(1)(b). And an act is “in the course of” committing a robbery
“if it occurs in an attempt to commit, during the commission of,
or in the immediate flight after the attempt or commission of a
robbery.” Id. § 76-6-302(3). With these statutory definitions in
mind, we address each of Oseguera-Lopez’s claims of error.
I. The Retail Theft Instructions
¶18 	Oseguera-Lopez asserts that the district court abused its
discretion by denying his request for two jury instructions on the
subject of retail theft. The first of those instructions defined the
crime of retail theft according to statute. See Utah Code Ann.
§ 76-6-602 (LexisNexis 2017). The second sought to instruct the
jury that “retail theft” was a distinct crime from both “theft” and
“wrongful appropriation” and that only the latter two crimes
could serve as the basis of a robbery conviction. See id. § 76-6-
301(1)(b) (“A person commits robbery if the person intentionally

State v. Oseguera-Lopez
20190176-CA 	7 	2020 UT App 115
or knowingly uses force or fear of immediate force against
another 	in 	the 	course 	of 	committing 	a 	theft 	or 	wrongful
appropriation.” (emphasis added)).
¶19 	According 	to 	Oseguera-Lopez, 	the 	instructions 	were
necessary because “the facts showed a retail theft had taken
place [and] the State could have charged the case appropriately
but elected to charge aggravated robbery” instead. Essentially,
the defense’s theory was that Oseguera-Lopez committed a
crime but not the crime that was actually charged. Further, he
wanted the jury instructed that retail theft was not a lesser
included offense of robbery and so could not serve as the basis of
a robbery conviction—unlike the crimes of theft or wrongful
appropriation. 	See 	id. 	In 	short, 	Oseguera-Lopez 	aimed 	to
convince the jury that he had committed retail theft, which, in
his view, could not serve as the basis for a robbery conviction.
¶20 	A defendant may certainly argue that his actions, while
criminal, did not rise to the level of the crime charged. But he is
not entitled to a jury instruction defining a crime that is not at
issue, so long as the remaining instructions adequately allow the
defense to argue its theory to the jury. This court previously
considered whether a defendant is entitled to a jury instruction
on “a lesser, uncharged, unincluded offense” and determined
that 	such 	a 	position 	was 	“wholly 	without 	merit.” 	State 	v.
Tennyson, 850 P.2d 461, 470 (Utah Ct. App. 1993). In Tennyson,
we reasoned that such an instruction was “entirely independent
from [the] defendant’s ability to present his . . . defense to the
jury” and that “[t]he jury instructions as a whole clearly afforded
the jury an opportunity to accept [the] defendant’s theory of the
case and find him innocent if the jurors determined that the facts
bore 	his 	theory 	out.” 	Id. 	at 	471. 	Similarly, 	here, 	the 	jury
instructions as a whole allowed Oseguera-Lopez to argue his
theory that, although his actions were criminal, they did not rise
to the level of aggravated robbery—the charged crime, on which
the jury was properly instructed. Accordingly, the district court
acted well within its discretion in declining to instruct the jury

State v. Oseguera-Lopez
20190176-CA 	8 	2020 UT App 115
on the elements of the lesser, uncharged, unincluded offense of
retail theft.
¶21 	As for the second instruction, the district court acted
within its discretion in refusing to instruct the jury that retail
theft 	could 	not 	serve 	as 	a 	basis 	for 	robbery 	because 	that
proposition is not supported by any legal authority. At trial, the
State 	argued 	that 	Oseguera-Lopez 	was 	guilty 	of 	a 	specific
variant of robbery—“intentionally or knowingly us[ing] force or
fear 	of 	immediate 	force 	against 	another 	in 	the 	course 	of
committing a theft or wrongful appropriation.” See Utah Code
Ann. 	§ 	76-6-301(1)(b). 	Oseguera-Lopez 	views 	the 	language
concerning “a theft or wrongful appropriation” as requiring that
a conviction on that variant of robbery be based on either the
crimes of “theft,” as defined in Utah Code section 76-6-404, or
“wrongful appropriation,” as defined in Utah Code section 76-6-
404.5, and precluding a conviction based on all other types of
theft, including retail theft as defined in Utah Code section 76-6-
602. But there is no basis in the wording of the statute or in Utah
caselaw to support that proposition; instead, legal authorities
support the opposite conclusion.
¶22 	The robbery statute does not specifically refer to the
singular crime of “theft” as defined in Utah Code section 76-6-
404. Rather it refers to “a theft.” See id. § 76-6-301(1)(b) (emphasis
added). “Most courts have construed ‘a’ or ‘an’ as meaning ‘any’
and as not restricted to just one.” Evans v. State, 914 A.2d 25, 75
(2006). 	Indeed, 	“[i]t 	is 	well-established 	that 	the 	use 	of 	the
indefinite article ‘a’ or ‘an’ signals a generic reference.” State v.
Culver, 	941 	N.W.2d 134, 	140 	(Minn. 	2020) 	(citing 	Bryan 	A.
Garner, The Redbook: A Manual on Legal Style § 10.38 (2d ed.
2006)); see also United States v. Martinez-Candejas, 347 F.3d 853,
856 (10th Cir. 2003) (“The use of the indefinite article ‘an’ and the
addition of ‘offense’ at the phrase’s end indicates that the phrase
‘an alien smuggling offense’ is meant to refer not just to alien
smuggling per se but to a family of offenses that are in some
sense related to alien smuggling.”). Thus, the plain language of

State v. Oseguera-Lopez
20190176-CA 	9 	2020 UT App 115
the statute suggests that the robbery statute includes generic
theft offenses and is not limited to the singular crime of theft as
defined in Utah Code section 76-6-404. See id.; see also State v.
Campbell, 2012 UT App 75, ¶ 7, 274 P.3d 1021 (concluding that a
reference to “theft” in another statute “may also apply to retail
theft” (cleaned up)).
¶23 	Further, Oseguera-Lopez’s argument seems to assume
that, because his attempted theft was perpetrated against a
retail 	establishment, 	“retail 	theft” 	was 	the 	only 	underlying
crime he could have committed. But we see no reason why his
conduct 	would 	not 	have 	satisfied 	the 	elements 	of 	“theft”
as defined in Utah Code section 76-6-404. One need only look
to Utah caselaw to find examples where taking merchandise
from 	a 	retail 	store 	has 	been 	prosecuted 	under 	the 	theft
statute. See generally, e.g., State v. Bender, 581 P.2d 1019 (Utah
1978) (affirming a theft conviction based on the defendant’s
theft of a coat from a clothing store); State v. Harris, 2015
UT App 282, 363 P.3d 555 (affirming a theft conviction based
on 	the 	defendant’s 	theft 	from 	a 	ski 	specialty 	store). 	And
even 	under 	Oseguera-Lopez’s 	suggested 	interpretation 	of
the robbery statute, actions constituting “theft” as defined in
Utah Code section 76-6-404 can serve as the basis for a robbery
conviction.
¶24 	In sum, the district court properly exercised its discretion
in refusing to instruct the jury on the elements of a crime for
which the jury was not asked to render a verdict. A defendant is
not entitled to jury instructions regarding lesser, uncharged,
unincluded 	offenses 	so 	long 	as 	the 	remaining 	instructions
adequately allow the defense to argue its theory to the jury, as
the instructions here did. In addition, the court properly rejected
Oseguera-Lopez’s 	request 	to 	instruct 	the 	jury 	on 	the
unsupported proposition that theft of merchandise from a retail
establishment cannot constitute “a theft” within the meaning of
the robbery statute.

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20190176-CA 	10 	2020 UT App 115
II. The Attempt Instruction
¶25 	Oseguera-Lopez next argues that the district court abused
its discretion by denying his request to instruct the jury on the
elements 	of 	“attempt.” 	See 	Utah 	Code 	Ann. 	§ 	76-4-101
(LexisNexis 2017) (providing that a person “is guilty of an
attempt 	to 	commit 	a 	crime 	if 	he 	. 	. 	. 	engages in 	conduct
constituting a substantial step toward commission of the crime”
and 	has 	the 	requisite 	mental 	state). 	Given 	that 	aggravated
robbery includes the use or threatened use of a dangerous
weapon during “an attempt to commit” robbery, Oseguera-
Lopez 	believes 	that 	an 	instruction 	defining 	“attempt” 	was
necessary.
¶26 	The State responds that Oseguera-Lopez was not entitled
to his proposed instruction because Utah Code section 76-4-101
does not define the word “attempt,” but sets forth the elements
of attempt as a separate crime. If Oseguera-Lopez had been
charged with attempted aggravated robbery, such an instruction
would be proper. See State v. Harmon, 712 P.2d 291, 292 (Utah
1986) (holding that failure to instruct on the elements of attempt
was error where the defendant was charged with attempted
robbery). 	But 	because 	Oseguera-Lopez 	was 	charged 	with 	a
completed aggravated robbery offense, not an attempted offense,
the State argues that the proposed instruction is inapplicable.
¶27 	Because Oseguera-Lopez has not demonstrated that he
was harmed by the instruction’s omission, we need not decide
whether the word “attempt” as it appears in the aggravated
robbery statute requires proof of the elements set forth in the
statute defining attempt as a separate crime. See State v. Garcia,
2017 UT 53, ¶ 40, 424 P.3d 171 (“[E]rrors in jury instructions—
even instructions going to the elements of a charged crime—
require 	harmless-error 	analysis.”). 	Even 	assuming, 	without
deciding, that such an instruction would be proper in this
context, the proposed instruction would have simply required

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the jury to find that Oseguera-Lopez took a “substantial step”
toward committing robbery with the intent to commit the crime.
¶28 	There is no reasonable likelihood that the jury would have
reached a different verdict had it been required to find that
Oseguera-Lopez 	took 	at 	least 	a 	substantial 	step 	toward
committing robbery with the intent to commit the crime. The
evidence at trial established that he entered the store carrying
two weapons: an unsheathed hunting knife and a folding knife.
He took four handbags and headed toward the store’s exit,
passing several cash registers without stopping to pay, and
stopped 	only 	when 	he 	was 	intercepted 	by 	the 	store’s
merchandise 	manager. 	After 	being 	confronted 	by 	the
merchandise manager, he pulled out a knife and displayed it in a
“very 	aggressive” 	and 	threatening 	manner 	before 	quickly
making his way toward a different exit. He later admitted that
he had intended to give the handbags to a friend to take to
Mexico.
¶29 	By returning a guilty verdict, the jury necessarily found
that Oseguera-Lopez acted with the mental state required to
commit 	the 	offense 	of 	robbery, 	that 	is, 	he 	intentionally 	or
knowingly 	used 	“force 	or 	fear 	of 	immediate 	force 	against
another in the course of committing a theft.” See Utah Code Ann.
§ 76-6-301(1)(b). Having reached that conclusion, there is no
reasonable likelihood that the jury would have found that none
of Oseguera-Lopez’s actions constituted a “substantial step”
toward committing that crime. The act of bringing weapons to a
store where he intended to steal merchandise might, by itself,
qualify as a substantial step toward committing robbery. Cf.
United States v. Stallworth, 543 F.2d 1038, 1041 (2d Cir. 1976)
(affirming an attempted bank robbery conviction where the
defendants, 	among 	other 	things, 	“armed 	themselves” 	and
“moved ominously toward the bank”). Similarly, taking the
duffel bag out of its box, placing his wire cutters and unsheathed
knife in the open bag, and carrying it to the handbag department
might have constituted a substantial step. But here, Oseguera-

State v. Oseguera-Lopez
20190176-CA 	12 	2020 UT App 115
Lopez took the additional steps of carrying the handbags past
the last point of sale and toward the exit and then displaying a
knife to the merchandise manager when confronted. Given these
facts, there is no reasonable likelihood that the jury would have
found 	that 	Oseguera-Lopez 	did 	not 	take a 	substantial 	step
toward committing “a theft” by means of “force or fear of
immediate 	force.” 	See 	Utah 	Code 	Ann. 	§ 	76-6-301(1)(b).
Accordingly, there is no reasonable likelihood that the outcome
of 	the 	trial 	would 	have 	been 	different 	had 	the 	jury 	been
instructed 	on 	the 	elements 	of 	attempt 	as 	Oseguera-Lopez
requested.
III. Motion for a Directed Verdict
¶30 	Lastly, 	Oseguera-Lopez 	argues 	that 	the 	district 	court
erred by denying his motion for a directed verdict because there
was insufficient evidence presented at trial to demonstrate that
he used force or fear of immediate force in the course of
committing a theft or wrongful appropriation.2 Specifically, he
2. 	Oseguera-Lopez 	also 	asserts 	that 	“the 	evidence 	was
insufficient to prove that [he] used force or fear to take handbags
from another person with the intent to deprive the person of the
handbags,” 	which 	constitutes a 	sufficiency 	challenge 	to 	the
evidence supporting the variant of robbery laid out in Utah
Code section 76-6-301(1)(a). The State responds that, although
the jury was instructed on that variant, the State explicitly
disavowed any reliance on it at trial, telling the jury to “mark
out” the portion of instructions relating to it and to instead focus
on whether Oseguera-Lopez was guilty of the second variant of
robbery laid out in Utah Code section 76-6-301(1)(b). Therefore,
according to the State, whether there was sufficient evidence to
sustain a conviction on that robbery variant is “irrelevant.”
(Citing State v. Johnson, 821 P.2d 1150, 1159 (Utah 1991) (“[A]
general verdict of guilty cannot stand if the State’s case was
premised on more than one factual or legal theory of the elements of
(continued…)

State v. Oseguera-Lopez
20190176-CA 	13 	2020 UT App 115
contends that “showing the knife was not in the course of
attempting theft or wrongful appropriation because [he] was in
the course of handing [the employee] the bags rather than taking
or keeping them.” (Cleaned up.) Nor, according to Oseguera-
Lopez, “was the knife displayed in the course of immediate
flight because [he] did not flee.”3 (Cleaned up.)
(…continued)
the crime and any one of those theories is flawed or lacks
the 	requisite 	evidentiary 	foundation.” 	(emphasis 	added)).)
Oseguera-Lopez 	does 	not 	argue 	otherwise. 	Because 	we
determine that sufficient evidence supported Oseguera-Lopez’s
conviction under the second variant of robbery on which the
State 	relied 	at 	trial, 	we 	do 	not 	address 	Oseguera-Lopez’s
challenge to the first.
3. The State argues that Oseguera-Lopez did not preserve this
specific sufficiency challenge because his motion for a directed
verdict 	went 	to 	whether 	there 	was sufficient 	evidence 	that
displaying 	the 	closed 	folding 	knife 	rose 	to 	the 	level 	of
“knowingly and intentionally . . . promot[ing] fear of immediate
force.” 	Now, 	on 	appeal, 	Oseguera-Lopez 	contends 	that 	the
evidence did not support the finding that he used fear of force in
the course of committing a theft. Therefore, according to the
State, the district court was not given an opportunity to address
the issue now raised on appeal and we are limited to reviewing
only for plain error. See State v. Dean, 2004 UT 63, ¶ 14, 95 P.3d
276 (limiting itself to plain error review where the appellant
“failed to put the trial court on notice of the alleged error”).
Oseguera-Lopez responds that either his motion for a directed
verdict 	or the 	court’s ruling 	on 	that 	motion 	was sufficient
to preserve the issue for our review. We do not resolve the
question of whether Oseguera-Lopez’s sufficiency challenge was
preserved 	for 	appeal 	because 	there 	was 	no 	error, 	plain 	or
(continued…)

State v. Oseguera-Lopez
20190176-CA 	14 	2020 UT App 115
¶31 	Although Oseguera-Lopez displayed the knife as he was
returning some of the handbags to the merchandise manager, an
act is considered “in the course of committing a theft” if it occurs
“in the immediate flight after the attempt or commission” of a
theft. See Utah Code Ann. § 76-6-301(2)(c) (LexisNexis 2017).
Immediately after Oseguera-Lopez displayed his knife to the
merchandise manager, he quickly walked away and made his
way toward a different store exit. That he quickly walked away
rather than sprinted does not mean that he was not fleeing from
his attempted theft. See West Valley City v. Hoskins, 2002 UT App
223, ¶¶ 10–11, 51 P.3d 52 (affirming a conviction for fleeing a
police officer where the defendant walked toward his home after
being told to stop by an officer). And the jury could have
reasonably inferred that he displayed his knife in an attempt to
aid his escape by dissuading any individuals from trying to stop
him as he walked toward the other exit. See State v. Phillips, 2006
UT App 211U, para. 4 (per curiam) (affirming conviction for
aggravated 	robbery 	where 	the 	defendant, 	in 	attempting 	to
escape from security personnel, said, “I have a knife,” and
displayed the knife).
¶32 	Oseguera-Lopez 	asserts 	that 	the 	above-cited 	evidence
could also give rise to innocent inferences. And, relying on State
v. Cristobal, 2010 UT App 228, 238 P.3d 1096, abrogated by State v.
Law, 2020 UT App 74, 464 P.3d 1192, he contends that we must
reverse his conviction because “the evidence supports more than
one 	possible 	conclusion, 	none 	more 	likely 	than 	the 	other,”
meaning that the jury’s conclusion of guilt was based on “no
more than speculation.” See id. ¶ 16. “But as our supreme court
has . . . clarified, ‘the fact that we can identify an equally
plausible alternative inference is not nearly enough to set a
(…continued)
otherwise, in the court’s denial of his motion for a directed
verdict.

State v. Oseguera-Lopez
20190176-CA 	15 	2020 UT App 115
verdict aside.’” State v. Wall, 2020 UT App 36, ¶ 54, 460 P.3d 1058
(quoting 	State 	v. 	Ashcraft, 	2015 	UT 	5, 	¶ 	25, 	349 	P.3d 	664)
(otherwise cleaned up); see also State v. Law, 2020 UT App 74,
¶ 22, 464 P.3d 1192, petition for cert. filed, July 6, 2020 (No.
20200509). Rather, “the question presented is not whether some
other 	(innocent) 	inference 	might 	have 	been 	reasonable, 	but
simply 	whether 	the 	inference 	adopted 	by 	the 	jury 	was
sustainable.” Wall, 2020 UT App 36, ¶ 54 (cleaned up). And as
explained above, the jury’s inferences were reasonable based on
the evidence.
¶33 	In sum, the evidence supporting the jury’s verdict was
sufficient to support Oseguera-Lopez’s conviction. Therefore, we
affirm the district court’s denial of Oseguera-Lopez’s motion for
a directed verdict.
CONCLUSION
¶34 	The district court did not abuse its discretion by denying
Oseguera-Lopez’s request for the two jury instructions relating
to retail theft. Additionally, the court’s refusal to provide an
instruction 	on 	the 	elements of 	attempt was harmless, 	even
assuming that such an instruction would be appropriate where,
as here, the defendant is charged with a completed crime.
Finally, the evidence that Oseguera-Lopez used force or fear of
immediate force in the course of committing a robbery was
sufficient to support the verdict.
¶35 	Affirmed.