STATE v. HASSELBLAD, 2003 UT App 426

State of Utah, Plaintiff and Appellee, v. John Michael Hasselblad, Defendant and Appellant.

Case No. 20020730-CA.Utah Court of Appeals.
Filed December 11, 2003. (Not For Official Publication)

[EDITOR’S NOTE: This case is unpublished as indicated by the issuing court.]

Appeal from the Third District, Salt Lake Department, The Honorable Anthony B. Quinn.

David V. Finlayson and Kent R. Hart, Salt Lake City, for Appellant.

Mark L. Shurtleff and Karen A. Klucznik, Salt Lake City, for Appellee.

Before Judges Jackson, Bench, and Orme.

MEMORANDUM DECISION
JACKSON, Presiding Judge:

Hasselblad appeals from a conviction for burglary. We affirm.

Hasselblad first argues that the trial court erred in determining that his request for a jury instruction was untimely. A trial court’s decision to refuse a jury instruction as untimely is reviewed for an abuse of discretion. See State v. Evans, 668 P.2d 566, 568 (Utah 1983). Under rule 19(a) of the Utah Rules of Criminal Procedure, parties are required to submit proposed jury instructions “[a]t the final pretrial conference or at such other time as the court directs.” Here, it is clear from the record that the trial judge specifically informed the parties that any proposed jury instructions needed to be submitted prior to the final pretrial conference. In spite of this, Hasselblad failed to submit a request for a lesser included offense instruction until late in the trial. Accordingly, we conclude that the trial court’s refusal to accept Hasselblad’s mid-trial request for a lesser included offense instruction was not an abuse of discretion.[1]

Hasselblad next argues that, despite an untimely request, the lesser included offense instruction should nevertheless have been given. We review a trial court’s refusal to give a requested jury instruction on a claimed lesser included offense for correctness. See State v. Payne, 964 P.2d 327, 332 (Utah Ct.App. 1998). Under Utah law, courts are required to give a lesser included offense instruction where (i) there is some overlap between the two offenses and (ii) the evidence at trial is susceptible to an alternative interpretation permitting acquittal of the greater offense and conviction of the lesser. See State v. Shabata, 678 P.2d 785, 790 (Utah 1984); State v. Baker, 671 P.2d 152, 158-59 (Utah 1983). At trial, Hasselblad’s defense was centered around his contention that he had no knowledge that the property was stolen when he received it. As such, the evidence that was presented at trial does not support the statutory elements for receipt of stolen property, which clearly state that conviction is only proper where the defendant has knowledge or belief that the property is stolen. See Utah Code Ann. § 76-6-408(1) (1999). Given the lack of a rational basis for a verdict acquitting Hasselblad of burglary and convicting him of receipt of stolen property, the trial court therefore did not err in refusing to give the lesser included offense instruction. See Shabata, 678 P.2d at 790.

Accordingly, we affirm.

Russell W. Bench, Judge, and Gregory K. Orme, Judge, concur.

[1] Even if we were to accept Hasselblad’s contention that the trial court had indicated to the parties that it would consider proposed instructions submitted after the final pretrial conference, it is plain from the record that, at trial, the court then clearly informed the parties that the final jury instructions would be compiled during the lunch recess. As such, counsel’s failure to notify the court that he wished to submit requested instructions knowing that the court would be preparing them during the recess, carries with it the same consequence [as] failing to submit them at all. Trial courts must be accorded reasonable latitude to move trials along and we find no abuse of discretion here in refusing to accept defendant’s requests under these facts.

State v. Evans, 668 P.2d 566, 568 (Utah 1983).