Wallace v. State

2017 Ark. App. 659, 537 S.W.3d 269
CourtCourt of Appeals of Arkansas
DecidedDecember 6, 2017
DocketNo. CR-17-88
StatusPublished
Cited by3 cases

This text of 2017 Ark. App. 659 (Wallace v. State) is published on Counsel Stack Legal Research, covering Court of Appeals of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Wallace v. State, 2017 Ark. App. 659, 537 S.W.3d 269 (Ark. Ct. App. 2017).

Opinion

ROBERT J. GLADWIN, Judge

| Appellant Brandon Wallace appeals his September 21, 2016 convictions by a Pulaski County jury on charges of kidnapping and aggravated assault on a family or household member. He was sentenced to concurrent terms of five years’ imprisonment for kidnapping and three years’ imprisonment for aggravated assault. He was given enhanced, consecutive sentences of one year imprisonment because the jury found that he used a firearm during the commission of the kidnapping and that the aggravated assault occurred in the presence of a child. He now challenges the trial court’s denial of his proffered jury instruction that second-degree false imprisonment is a lesser-included offense of kidnapping. We affirm.

I. Facts

|gOn March 11, 2016, the State filed an amended felony information against appellant alleging in relevant part that on or about November 10-11, 2014, appellant committed two felony offenses against Becky Mitchell: (1) the Class Y felony of kidnapping, as defined in Arkansas Code Annotated section 5-ll~102(a)(6) (Repl.’ 2013); and (2) the Class D felony of aggravated assault on a family member, as defined in section 5-26-306(a)(2) (Repl. 2013). In the amended information, the State also alleged that two sentence enhancements were applicable: (1) the “employment of a firearm” enhancement set forth in section 16-90-120(a)-(b) (Supp. 2015); and (2) the “in the presence of a child” enhancement set forth in section 5-4-702(a)-(d) (Repl. 2013). On September 20, 2016, at the beginning of appellant’s trial, the State again amended the information to reduce the kidnapping charge from a Class Y felony to a Class B felony. Aso, at that time, the trial court granted the State’s motion to dismiss a third felony charge that had been set forth in the March 11, 2016 amended felony information.

At the conclusion of his jury trial held on September 20-21, 2016, appellant was found guilty of having committed Class B felony kidnapping and aggravated assault on a family or household member. The jury also found that appellant had employed a firearm to commit kidnapping and that appellant had committed aggravated assault on a family or household member in the presence of a child. He was sentenced pursuant to a sentencing order'filed on October 12,. 2016, and an amended sentencing order filed on November 10, 2016. He filed a timely notice of appeal on November 10, 2016.

II. Standard, of Review and . Applicable Law

RA trial court’s ruling on whether to submit a lesser-included-offense instruction will not be-reversed absent an abuse of discretion. See Johnson v. State, 2017 Ark. App. 373, 523 S.W.3d 908; Webb v. State, 2012 Ark. 64, 2012 WL 503885. While an abuse of discretion may be manifested by an erroneous interpretation of the law, see State v. Gray, 2016 Ark. 411, 505 S.W.3d 160, in the absence of a showing that the trial court erred in its interpretation of a statute, its interpretation will be accepted as correct on appeal. Solis v. State, 371 Ark. 590, 269 S.W.3d 352 (2007).

The determination of whether an offense is a lesser-ineluded offense of another is governed by Arkansas Code Annotated section 5—1—110(b) (Repl. 2013):

(1)It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(2) It .consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(3) It differs from the offense charged only in the respect that a less serious injury or risk of injury, to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.

See, e.g., Davis v. State, 365 Ark. 634, 232 S.W.3d 476 (2006). An offense must meet one of the three statutory tests to be considered a lesser-ineluded offense. Davis, supra. Even if an offense meets- the re*-quirements, an appellate court will affirm a trial court’s decision to exclude an' instruction on a lesser-ineluded offense if there is no rational basis for giving the instruction. Id.

III. Discussion

Appellant’s sole argument on appeal is that the trial court erred in denying his counsel’s request that the jury be instructed in the guilt phase of the trial that second-1¿degree false imprisonment is a lesser-ineluded. offense of kidnapping. Appellant’s counsel preserved this, issue for our review by requesting that the trial court so instruct the jury. Appellant proffered proposed jury instructions on second-degree false imprisonment as a lesser-ineluded offense of kidnapping, including appropriate transitional jury instructions. The trial court denied appellant’s counsel’s request based on our supreme court’s holding in Davis,- supra, that second-degree false imprisonment is not, a lesser-ineluded offense of kidnapping.

In Davis, the court applied Arkansas’s three statutory definitions of a lesser-included offense and held that under each of these definitions, second-degree false imprisonment is not a lesser-ineluded offense of kidnapping. At trial, appellant’s counsel argued that,, specifically pursuant to section 5-l-110(b)(3), second-degree false imprisonment is a lesser-included offense of kidnapping because it requires proof of a less culpable mental state.

Appellant submits that in Davis, and in other cases, our supreme court has interpreted section 5—1—110(b)(3) to require that the elements of a greater offense and a lesser offense be identical except that the lesser offense require proof of a less culpable mental state or proof of a less serious injury or risk of injury. Appellant submits that this strict “same elements” interpretation of section 5—1—110(b)(3) is incorrect. He claims that when section 5-1—110(b)(3) is properly applied, second-degree false imprisonment becomes a lesser-included offense of kidnapping. He claims that the greater-lesser relationship is established because each offense is in the same generic class and because second-degree false imprisonment requires proof of a less culpable mental state.

RWe disagree. Appellant was charged with kidnapping the victim with the purpose of terrorizing her. This definition is set forth in section 5—11—102(a)(6) and states, “A person commits the offense of kidnapping if, without consent, the person restrains another person so as to interfere substantially with the other person’s liberty with the' purpose of: terrorizing the other person or another person.” Appellant claims that in this definition of kidnapping, the culpable-mental-state element of “purpose” does not directly modify the conduct element of “restrains.” But pursuant to section 5-2-203(a) (Repl. 2013), the “purpose” culpable-mental-state element modifies the conduct element of “restrains.”

Second-degree false imprisonment and kidnapping are both codified in Chapter 11 of Title 5 of Arkansas Code Annotated under the heading “Kidnapping and Related Offenses.” Second-degree false imprisonment is defined in section 5-11-104(a) (Repl.

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Bluebook (online)
2017 Ark. App. 659, 537 S.W.3d 269, Counsel Stack Legal Research, https://law.counselstack.com/opinion/wallace-v-state-arkctapp-2017.