State v. Harper

To be reviewable, any challenge to a jury instruction must be preserved at trial. When there is a single victim for the two events, convictions for stealing property and then selling that property must be merged as a single conviction.

Defendant appealed his multiple convictions from two cases (08CR0663 and 09CR0693) tried concurrently to a jury. Among the evidence at trial was Defendant’s admissions that he aided and abetted an accomplice in committing several violent crimes against the victim, including first-degree robbery, first-degree burglary, first-degree theft, and second-degree assault. Defendant argued that (1) the trial court committed plain error in instructing the jury that they could find him guilty of not only the intended crime, but any “natural or probable consequence,” and (2) the trial court erred in not merging his two convictions for first-degree theft – one for taking the victim’s copper and the other for selling it – because he argued that the crime was committed against the same victim. The Court of Appeals held that (1) Defendant’s challenge to the jury instruction is unreviewable because it was not preserved, and (2) the trial court did err in failing to merge the two theft counts into a single conviction.
Affirmed as to 08CR0663; Reversed and Remanded as to 09CR0693 for merger of convictions, otherwise Affirmed.