"Where the evidence may support a conviction either for theft or the lesser-included offense of attempted theft, did the trial court err in denying Appellant's request for an instruction on the lesser-included offense?"
Bullock entered a parked delivery truck, started it, and depressed the accelerator several times but could not drive away because the airbrake was engaged. At his trial for theft of the truck, Bullock claimed he didn't know how to drive a truck and wasn't trying to steal it. Instead, he claimed he only wanted to steal items inside the truck. Nevertheless, he requested submission of the lesser-included offense of attempted theft of the truck, which was denied.
The court of appeals held that because theft does not require proof of asportation and the evidence showed that he possessed the truck by being behind the wheel and operating the controls, there was no evidence that if guilty, he was guilty only of attempting to steal the truck.
Bullock points out that the jury could have disbelieved his testimony that he only wanted to steal the truck's contents and instead believed that he was trying to steal the truck itself. But it also could have believed that he did not successfully take possession of the truck, and therefore, was guilty only of attempt.