State of Utah v. L.C.

----ooOoo----

State of Utah,
Plaintiff and Appellee,

v.

L.C.,

Defendant and Appellant.

MEMORANDUM DECISION
(Not For Official Publication)

Case No. 990593-CA

F I L E D
March 9, 2000
  2000 UT App 68 -----

Seventh District Juvenile, Blanding Department
The Honorable S. Don LeBaron

Attorneys:
William L. Schultz, Moab, for Appellant
Jan Graham and Marian Decker, Salt Lake City, for Appellee

-----

Before Judges Bench, Davis, and Orme.

PER CURIAM:

L.C. appeals her delinquency adjudication based upon Criminal Mischief, a class B misdemeanor.

The petition alleged L.C. committed burglary of a non-dwelling. Following a bench trial, the juvenile court found there was reasonable doubt whether L.C. entered the building; however, the court ruled that L.C. had committed the offense of criminal mischief by breaking a window. Over L.C.'s objection, the court ruled from the bench that criminal mischief is a lesser included offense of burglary.

Burglary is committed when a person "enters or remains unlawfully in a building . . . with intent to commit a felony or theft." Utah Code Ann. § 76-6-202 (1999). Criminal mischief is committed when a person "intentionally damages, defaces, or destroys the property of another." Utah Code Ann. § 76-6-106(c) (1999). A lesser included offense must be "established by proof of the same or less than all the facts required to establish the commission of the offense charged." Utah Code Ann. § 76-1-402(3)(a) (1999); see also State v. Carruth, 1999 UT 107, 384 Utah Adv. Rep. 22 (reaffirming that lesser included offense is one whose statutory elements are necessarily included within statutory elements of charged offense). The State concedes that criminal mischief is not a necessarily included offense of burglary and that the adjudication for criminal mischief must be overturned. See In re L.G.W., 641 P.2d 127, 130 (Utah 1982) (concluding that if proof fails on any element, the court may find juvenile has violated lesser included offense consisting entirely of some remaining elements of offense charged).

We therefore reverse the judgment of the juvenile court.
 
 
 

______________________________
Russell W. Bench, Judge
 
 
 

______________________________
James Z. Davis, Judge
 
 
 

______________________________
Gregory K. Orme, Judge