Thomas v. State

422 S.W.3d 217, 2012 Ark. App. 466, 2012 WL 4009589, 2012 Ark. App. LEXIS 590
Court of Appeals of Arkansas·Decided September 12, 2012·No. No. CA CR 11-1119·Published·Cited by 6 cases

Opinion

LARRY D. VAUGHT, Chief Judge.

| TEugene Thomas III was convicted by an Ashley County Circuit Court jury of aggravated robbery and commercial burglary. He was sentenced to twenty years’ imprisonment for the aggravated-robbery conviction and five years’ imprisonment for the commercial-burglary conviction, to be served concurrently. On appeal, he challenges the trial court’s (1) refusal to give a jury instruction on the lesser-included offense of attempt to commit aggravated robbery; (2) admission of evidence at sentencing of his participation in a prior robbery; and (8) denial of his motion for mistrial. We affirm.

On September 24, 2010, a man entered the Dollar General Store in Crossett, Arkansas, just before closing and hid in an employee-only storage room. Two Dollar General employees — Whitney Bridges and Nicole Wattman — testified that they saw the man enter the store. Because they did not see him exit, they walked around the store looking for him but did not find him. They began closing procedures, which included locking the front door and counting the money in the registers. When Watt-man was locking the front door, she saw a dark | PDodge Caravan parked outside the store. She testified that the driver of the van told her that he was waiting for someone who was not inside Dollar General. Minutes later, Bridges saw the man who had entered the store earlier suddenly run out of the storeroom. He was wearing a red baseball cap on his head, a bandana over his face, and was carrying a gun. She screamed and ran toward the front door, falling on the way. Bridges testified that she saw the man point his gun at her and heard him yell to Wattman to stop. Hearing Bridges scream, Wattman unlocked the front door and ran outside. She testified that she heard the man yell to her, “Stop or I’m going to shoot.” The man ran out of the store and into the Dodge van that was parked outside.1 The suspect was later arrested and identified as Thomas. During his police interrogation, Thomas was shown surveillance video from the store. He admitted that he was in the video and gave a detailed confession.

Thomas argues three points on appeal. The first point is that the trial court erred in refusing to give the lesser-included-offense jury instruction of attempted aggravated robbery. We have stated that it is reversible error to refuse to instruct on a lesser-included offense when there is the slightest evidence to support the instruction. Taylor v. State, 2009 Ark. App. 627, at 3, 331 S.W.3d 597, 598. We have further made it clear that we will affirm a trial court’s decision not to give an instruction on a lesser-included offense if there is no rational basis for giving the instruction. Id., 331 S.W.3d at 598. Where there is no evidence that calls into doubt an element of the greater offense, a trial court is not required to give an instruction on a lesser-included offense. Davis v. State, 97 Ark.App. 6, 10, 242 S.W.3d 630, 634 (2006). An appellate court will |snot reverse a trial court’s decision regarding the submission of such an instruction absent an abuse of discretion. Taylor, 2009 Ark. App. 627, at 3, 331 S.W.3d at 598.

A person commits the offense of aggravated robbery if he commits robbery, and the person is armed with a deadly weapon, represents by word or conduct that he or she is armed with a deadly weapon, or inflicts or attempts to inflict death or serious physical injury upon another person. Ark.Code Ann. § 5-12-103 (Repl.2006). A person commits the offense of robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately after committing a felony or misdemeanor theft, the person employs or threatens to immediately employ physical force upon another person. Ark.Code Ann. § 5-12-102(a) (Repl.2006).

An offense is a lesser-included offense if it consists of an attempt to commit the offense charged. Ark. Code Ann. § 5-1-110(b)(2) (Supp.2011). Arkansas Code Annotated section 5-3-201 (a)(2) (Repl.2006) provides that a person attempts to commit an offense if he or she purposely engages in conduct that constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as the person believes them to be. The comments to section 5-3-201 state that subsection (a)(2) is primarily directed at situations where substantial steps not amounting to completed courses of conduct have been taken, but have not culminated in the commission of the object offense. Original Commentary to Ark. Code Ann. § 5-3-201 (Repl.2006).

In the case at bar, Thomas claims that the trial court abused its discretion by refusing to give the lesser-included-offense jury instruction of attempted aggravated robbery because there was a factual question for the jury as to whether he employed or threatened to immediately | ¿employ physical force. He argues that there was disputed testimony about whether he yelled to one of the employees “stop or I’ll shoot” or just “stop.” He further contends that the evidence did not demonstrate that he chased the employees, but that he was frightened, was merely trying to get out of the store, and ran in the opposite direction of the employee who exited the store. According to Thomas, this evidence provided the trial court a rational basis to give the lesser-included instruction on attempted aggravated robbery. We disagree.

Contrary to Thomas’s argument, the evidence he relies on simply does not support attempted aggravated robbery. Assuming Thomas did only yell “stop” to Waltman and that he ran away from her as he exited the store, this is not evidence of the offense of attempt, i.e., evidence that constitutes a substantial step in a course of conduct intended to culminate in the offense of aggravated robbery. Also, there was no factual question as to whether he employed or threatened to immediately employ physical force. The evidence was undisputed that Thomas stormed out of the back stockroom brandishing a gun and pointed it at the Dollar Store employees. This was more than a substantial step intended to culminate in aggravated robbery; this was conduct that actually completed the commission of that greater offense.

Because all the evidence in this case supports Thomas’s completion of the greater offense of aggravated robbery, there was no rational basis for giving the lesser-included-offense instruction of attempt to commit aggravated robbery. Therefore, the trial court did not abuse its discretion when it refused to give that instruction, and we affirm on this point.

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Thomas v. State, 422 S.W.3d 217, 2012 Ark. App. 466, 2012 WL 4009589, 2012 Ark. App. LEXIS 590 (Ark. Ct. App. 2012).

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