## Facts

- John Preston entered a convenience store in Fairfield, Connecticut, and concealed multiple packs of cigarettes under his shirt; he was also observed hiding bottles of liquor.
- As Preston attempted to leave without paying, the cashier, Karem Shaham, jumped over the counter to detain him.
- A struggle followed, during which Preston’s shirt was ripped and some merchandise fell to the floor while other items remained in his possession.
- The confrontation continued into the parking lot, where Preston grabbed back a liquor bottle and held it over Shaham’s head in a threat to strike him, then fled in a waiting car.
- Preston was charged with first-degree robbery; the jury convicted him of the lesser included offense of third-degree robbery.
- The trial court refused Preston’s request to instruct the jury on sixth-degree larceny as a lesser included offense.

## Issues

1. Whether, under the evidence, the third and fourth prongs of the Whistnant test required an instruction on sixth-degree larceny as a lesser included offense of robbery.
2. Whether the distinguishing element of robbery (use or threat of force) was “sufficiently in dispute” such that the jury could acquit on robbery yet convict on larceny.

## Decision

- The Connecticut Supreme Court reversed the Appellate Court.
- The court held that the force or threatened force was not sufficiently in dispute to warrant a lesser-included instruction on sixth-degree larceny.
- The case was remanded with direction to affirm the trial court’s judgment of conviction for third-degree robbery.

## Legal Principles

- A defendant is entitled to a lesser-included-offense instruction only if the Whistnant requirements are met, including: (1) some evidence supports conviction of the lesser offense, and (2) the distinguishing element(s) between the offenses are sufficiently in dispute to permit a rational acquittal on the greater and conviction on the lesser.
- Robbery is a larceny accompanied by the use or threatened use of force; force used to retain property or effect escape may satisfy the robbery element when part of a continuous transaction with the taking.
- A lesser-included instruction is not required where the evidentiary record provides no reasonable basis for finding the absence of the distinguishing element, because such an instruction would invite an inconsistent verdict.

## Conclusion

Because the struggle and threatened strike occurred as part of a continuous effort to retain and remove the stolen merchandise, the evidence did not reasonably permit a finding of larceny without robbery; therefore, the trial court properly declined to instruct on sixth-degree larceny, and the robbery conviction stood.


State v. Preston, 728 A.2d 1087 (Conn. 1999)