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Espinoza v. State

Defendant who robbed a video store by using a replica of a handgun or intimidation was not entitled to a charge on the lesser included offense of theft by taking.

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In alternative counts of an indictment, Israel Espinoza was charged with taking money from Eric Harris either by use of a handgun or by use of a replica of a handgun. Espinoza appeals his conviction on the latter count and his sentence of life imprisonment. He challenges the sufficiency of the evidence, and he contends that the trial court erred in refusing to instruct the jury on the lesser included offense of theft by taking. We find sufficient evidence to support the verdict and no error by the trial court in refusing to charge on the lesser offense. Therefore, we affirm the judgment.

Espinoza operated a floor cleaning business. The manager of a video rental store where Eric Harris was employed hired Espinoza to clean the floors. The store manager testified that she was dissatisfied with Espinoza’s cleaning because he failed to remove stains from the floor, but that she nonetheless paid him in full and told him that he would get no repeat business. According to the manager, Espinoza later returned to the store and persuaded her to give him $20.00 so he could rent a steam cleaner and “make things right.” When Espinoza failed to return to the store, the manager left to find him.

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