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People v. Mortenson.

2023 COA 92. No. 21CA1364. Aggravated Robbery—Theft—Entry of Conviction on Remand—Lesser Included Offenses.

October 5, 2023

Mortenson put about $90 worth of Target merchandise into her purse and tried to exit the store without paying. She was confronted by Williams, an undercover Target asset protection specialist, as she stepped through the first of two sets of sliding glass exit doors. When Williams stepped toward her, Mortenson reached inside her shirt and pulled out a gun. Williams wrestled Mortenson to the ground, and a uniformed security guard arrived to assist. After a two-minute struggle, the two Target employees disarmed Mortenson, handcuffed her, and recovered the Target items from her purse, and the police were called. Mortenson was charged with (1) aggravated robbery, (2) felony menacing, (3) false reporting to authorities, and (4) theft from Target. As to the aggravated robbery charge, Mortenson’s counsel asked for a judgment of acquittal based on insufficient evidence. He then sought an instruction on attempted aggravated robbery when the judgment of acquittal request was denied but withdrew the attempt instruction before the case was submitted to the jury. Mortenson was convicted as charged. 

On appeal, Mortenson contended that there was insufficient evidence to support her aggravated robbery conviction because no evidence showed that a robbery taking occurred. The robbery statute, CRS § 18-4-301(1), requires proof that there was a taking from the person or presence of another by force. Here, Mortenson failed to take anything from Williams’s person or presence, so the prosecution failed to meet its burden of proof with respect to the taking element of the robbery statute. Accordingly, Mortenson’s conviction was not supported by sufficient evidence.  

As to the remedy, the court of appeals considered that it is an accepted strategy in Colorado for parties to not submit a lesser included offense instruction to the jury and thus give the jury a simple choice between guilty or not guilty. Further, parties should receive the benefits or consequences of their strategic choices. The court thus determined that it is an appropriate exercise of a division’s discretion to not direct the district court, on remand from a vacated aggravated robbery conviction, to enter a judgment of conviction for the lesser included offense of attempted aggravated robbery. Here, the record demonstrates that the defense strategically opted not to submit an attempt instruction to the jury, and the jury was not instructed on the lesser included offense, so to allow entry of judgment on attempted aggravated robbery would deprive Mortenson of the benefit of her chosen trial strategy. In addition, allowing entry of judgment on attempted aggravated robbery would unfairly give the state an advantage because the prosecution did not present sufficient evidence to support the charged conviction, and it was alerted to this evidentiary deficiency during trial and before the case was submitted to the jury. Accordingly, a conviction on the lesser included offense should not be entered against Mortenson. 

The judgment of conviction for aggravated robbery was vacated and the case was remanded with instructions. 

Official Colorado Court of Appeals proceedings can be found at the Colorado Court of Appeals website.

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