In making this determination, the evidence presented at trial must be viewed “in the light most favorable to” Reynolds, see Powell, 2007 UT 9, ¶ 27, 154 P.3d 788, in order to determine if “there is a sufficient quantum of evidence presented to justify charging the jury with [the] ... requested instruction[s].” See State v. Velarde, 734 P.2d 449, 451 (Utah 1986). ¶ 5 Under the circumstances of this case, in order to have committed aggravated robbery, Reynolds must have used a dangerous weapon—the gun—“in the course of committing robbery,” Utah Code Ann. § 76–6–302(1)(a) (LexisNexis 2012); and to have committed robbery, Reynolds must have used “force or fear of immediate force against another in the course of committing a theft,” see id.§ 76–6–301(1)(b).
If the offense "is established by proof of the same or less than all the facts required to establish the commission of the offense charged[,]" then the offense is a lesser included offense. Utah Code Ann. § 76-1-402(3)(a) (1990); accord State v. Velarde, 734 P.2d 449, 451 (Utah 1986). Second, the court must instruct on the lesser included offense if the evidence "provides a 'rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.
The trial court must give a lesser included offense instruction if "the evidence is ambiguous and susceptible to alternative explanations . . . [and] if any one of the alternative interpretations provides both a rational basis for the verdict acquitting the defendant of the offense charged and convicting him of the included offense." State v. Velarde, 734 P.2d 449, 451 (Utah 1986). If the trial court's refusal to instruct the jury on the lesser included offense of negligent homicide constituted error, we conclude the error was harmless.
It is within the province of a properly instructed jury to consider all evidence admitted at trial and then decide whether the defendant acted recklessly. See State v. Velarde, 734 P.2d 449, 454 (Utah 1986) ("it remains within the prerogative of the jury to make the determination whether the defendant lacked the intent"); State v. Howard, 597 P.2d 878, 881 (Utah 1979) (distinction between requisite intent for manslaughter and negligent homicide is "a question of fact to be decided by the jury"). Singer claims the evidence does not establish that he was aware of a risk to human life when he fired the rifle at the police service dogs.
Rivera-Hernandez's aggravated assault conviction required the intent to cause serious bodily injury. See State v. Hutchings, 285 P.3d 1183, 1187 (Utah 2012); State v. Velarde, 734 P.2d 449, 453 (Utah 1986). When considering whether an offense is a crime of violence under § 16(b), we determine whether "in the ordinary case . . . the perpetrator uses or risks the use of physical force in committing the offense."
Indeed, a number of our sister jurisdictions have recognized these principles and require that, in determining whether a rational basis exists to submit a lesser-included offense instruction to the jury, trial courts must look at the evidence in the light most favorable to the party requesting the instruction. See, e.g., State v. Wilburn, 249 Kan. 678, 822 P.2d 609, 612 (1991); People v. Henderson, 41 N.Y.2d 233, 391 N.Y.S.2d 563, 359 N.E.2d 1357, 1360 (1976); State v. Davis, 6 Ohio St.3d 91, 451 N.E.2d 772, 776 (1983); State v. Velarde, 734 P.2d 449, 451 (Utah 1986); State v. Fernandez-Medina, 141 Wash.2d 448, 6 P.3d 1150, 1154 (2000); Warren v. State, 835 P.2d 304, 330-31 (Wyo. 1992). The requirement that trial courts look at the evidence in the light most favorable to the party requesting the instruction protects the defendant's right to the presumption of innocence, maintains the state's burden of proving the defendant's guilt, and reserves the responsibility of evaluating the weight and credibility of the evidence for the jury — where it belongs.
Even if the direct cause of Carter's death had been negligent medical care, the gunshot wound that necessitated the medical care was a substantial factor in bringing about Carter's death. A defendant will not be relieved of criminal liability for murder when his action was a substantial factor in bringing about the death of the victim. See, e.g., Kusmider v. State, 688 P.2d 957, 959-60 (Alaska Ct. App. 1984); People v. Roberts, 6 Cal.Rptr.2d 276 (Cal. 1992); State v. Velarde, 734 P.2d 449 (Utah 1986). Therefore, Lay was not entitled to the requested instruction on the theory that he did not proximately cause Carter's death.
Application of these principles to the prosecutor's comments convinces us that reversal is not warranted. See State v. Knight, 734 P.2d 913, 919 (Utah 1987); State v. Tucker, 727 P.2d 185, 187-88 (Utah 1986) (per curiam); State v. Banner, 717 P.2d 1325, 1335 n. 47 (Utah 1986); State v. Fontana, 680 P.2d 1042, 1048 (Utah 1984); State v. Hutchison, 655 P.2d 635, 637 (Utah 1982); accord State v. Jerry Velarde, 734 P.2d 449, 456 (Utah 1986); State v. Tarafa, 720 P.2d 1368, 1372 (Utah 1986). Although the comment above exaggerated the facts, it concerned a point peripheral to the issue of defendant's guilt, and it would be impossible to identify it as unfairly prejudicing the jury with respect to the issue of defendant's guilt.
In State v. Jerry Velarde, we held that for purposes of a requested instruction by an accused, aggravated assault is a lesser included offense of second degree murder, as defined in subsections 76-5-203(1)(a) and (b). 734 P.2d 449 (Utah, 1986). The State, however, claims that defendant cannot satisfy the second part of the Baker test. The State's position is this: except for the element of death (it is clear that McIntyre died as the result of the injuries he sustained), the elements of aggravated assault and murder in the second degree, as charged in this case, are the same.
We therefore conclude that negligent homicide and reckless child abuse homicide have overlapping statutory elements and negligent homicide can be a lesser included offense of child abuse homicide under the narrow circumstance where the evidence reasonably supports a conclusion that a caregiver's criminally negligent omission or failure to act caused the child's death. See State v. Velarde, 734 P.2d 449, 451 (Utah 1986) (noting that the statutory elements of the crime charged and a requested lesser included offense overlap where the lesser included “offense is established by proof of the same or less than all of the facts required to establish the commission of the offense charged”). B. Rational Basis