Reed v. State

James Edward REED v. STATE of Arkansas

CR 96-310                                          ___ S.W.2d ___

                    Supreme Court of Arkansas
              Opinion delivered September 23, 1996


1.   Jury -- instructions to jury were proper -- AMCI instructions
     should be used if they accurately state the law. -- If an AMCI
     is available on the subject, a non-AMCI instruction should not
     be used unless the AMCI does not state the law; here, AMCI 401
     was a proper statement of the law because it accurately
     tracked the language of the accomplice statute at Ark. Code
     Ann.  5-2-403(a).

2.   Criminal law -- accomplice liability properly imposed -- State
     was not required to show it was appellant's conscious object
     to commit arson. -- The State, to sustain its arson count, was
     not required to prove that it was appellant's "conscious
     object" to commit arson; section 403(a) permits the jury to
     impose accomplice liability on appellant if the State merely
     showed that he aided his co-defendant "with the purpose of ...
     facilitating the commission of" arson; the instruction given
     by the trial court said exactly that. 


     Appeal from Greene Circuit Court; David Goodson, Judge;
affirmed.
     Jon A. Williams, for appellant.
     Winston Bryant, Att'y Gen., by:  Vada Berger, Asst. Att'y
Gen., for appellee.

     David Newbern, Justice.
     James Edward Reed was convicted of two counts of burglary, two
counts of theft, and one count of arson.  All of the offenses
alleged occurred on a day when Mr. Reed, Eric Thul, and Scotty
Lewis skipped school, did not have enough money to spend their
holiday as they wished, and decided to burglarize houses as they
rode about in an automobile.  Mr. Reed was tried jointly with Eric
Thul.  Mr. Reed's sole point of appeal concerns the Trial Court's
refusal to give a non-AMCI instruction to the jury concerning
accomplice responsibility.  The refused instruction was proffered
by Mr. Thul, and the proffer was joined by Mr. Reed who asked that
the instruction apply to him as well.  We hold that the Trial Court
properly declined the proffered instruction in favor of AMCI 2d
401.
     The evidence showed that the three young men burglarized
several homes including that of Mr. and Mrs. Orin Tritch.  The
Tritch home was set afire.  Mr. Thul testified he saw Mr. Reed set
fire to curtains and a sofa cushion there.  He also testified that
Mr. Reed asked him if they should burn the house and Mr. Reed later
indicated regret for having done so.  Mr. Reed testified he only
stood on the Tritch porch and served as a "lookout."  Scotty Lewis
corroborated Mr. Reed's testimony that Reed remained on the porch,
and he further testified that when Mr. Thul emerged from the Tritch
home he said, "Let's go, it's getting hot."  Testimony from others
indicated that Mr. Thul admitted to setting the fire without Reed
or Lewis knowing about it.
     The instruction proffered by Mr. Thul and joined by Mr. Reed
stated as follows:

     An accomplice is criminally responsible for the acts of others
     only to the extent he has a shared criminal purpose with the
     others.  If you ultimately find that Eric Thul [James Edward
     Reed] was an accomplice, you may find him guilty only of a
     crime you determine he had a conscious object to engage in, or
     a conscious object to cause such a result.

In proffering the instruction, Mr. Thul's counsel stated it was
based upon this Court's decision in Fight v. State, 314 Ark. 438,
863 S.W.2d 800 (1993).  
     In the Fight case, Louis Fight was convicted of manslaughter,
leaving the scene of an accident, and aggravated assault resulting
from his having been a passenger in an automobile driven by another
person in such a manner as to have committed those offenses.  The
evidence against Mr. Fight was that he was present at the scene
when the crimes were committed and that he had supplied the errant
driver with a marijuana cigarette sometime prior to the tragic
events.  We held the evidence insufficient to prove that Mr. Fight
was an accomplice to the driver as the term "accomplice" is defined
in Ark. Code Ann.  5-2-403(a) or (b) (Repl. 1993).  
     Section 5-2-403 is as follows:

     (a) A person is an accomplice of another person in the
     commission of an offense if, with the purpose of promoting or
     facilitating the commission of an offense, he:
          (1) Solicits, advises, encourages, or coerces the other
          person to commit it; or
          (2) Aids, agrees to aid, or attempts to aid the other
          person in planning or committing it; or
          (3) Having a legal duty to prevent the commission of the
          offense, fails to make proper effort to do so.
     (b) When causing a particular result is an element of an
     offense, a person is an accomplice in the commission of that
     offense if, acting with respect to that result with the kind
     of culpability sufficient for the commission of the offense,
     he:
          (1) Solicits, advises, encourages, or coerces the other
          person to engage in the conduct causing the result; or
          (2) Aids, agrees to aid, or attempts to aid the other
          person in planning or engaging in the conduct causing the
          result; or
          (3) Having a legal duty to prevent the conduct causing
          the result, fails to make proper effort to do so.

     The instruction on accomplice responsibility given by the
Trial Court was AMCI 2d 401, which, as adapted to the facts of this
case, stated as follows:

     In this case the State does not contend that Eric Paul Thul

     and James Edward Reed acted alone in the commission of the
     offenses of two counts of burglary, two counts of theft, and
     one count of arson.  A person is criminally responsible for
     the conduct of another person when he is an accomplice in the
     commission of an offense.  An accomplice is one who with the
     purpose of promoting or facilitating the commission of an
     offense solicits, advises, encourages or coerces the other
     person to commit the offense, or aids, agrees to aid, or
     attempts to aid the other person in planning or committing the
     offense.
          Purpose is defined as a person acts with purpose with
     respect to his conduct or a result thereof when it is his
     conscious object to engage in conduct of that nature, or to
     cause such a result.

     Arson is defined, in relevant part, in Ark. Code Ann.  5-38-
301 (Repl. 1993) as follows:  "(a) A person commits arson if he
starts a fire ... with the purpose of destroying or otherwise
damaging: (1) An occupiable structure ...."  
     Mr. Reed's argument is that the proffered instruction should
have been given because the State, in order to convict Mr. Reed as
an accomplice to arson, was required to show that it was Mr. Reed's
"conscious object" to commit arson.  We considered, and rejected,
a similar proffered instruction in Misskelley v. State, 323 Ark.
449, 915 S.W.2d 702 (1996).  Mr. Misskelley asked the Trial Court
to instruct the jury that it could not convict him as an accomplice
to murder unless it determined that it was his "conscious object"
to commit murder.  Mr. Misskelley, as Mr. Reed in the case at bar,
claimed this instruction was based on our decision in Fight v.
State, supra.  Over Mr. Misskelley's objection, the Trial Court
gave an accomplice instruction based on AMCI 401, and we affirmed.
     As we stated in the Misskelley case, "[i]f an AMCI is
available on the subject, a non-AMCI instruction should not be used
unless the AMCI does not state the law."  323 Ark. at 477, 915 S.W.2d  at 717.  We concluded that AMCI 401 is a proper statement of
the law because it accurately tracks the language of our accomplice
statute at  5-2-403(a).
     In the Misskelley case, we rejected the argument that the
State, to sustain its accomplice liability count, was required to
prove that it was Mr. Misskelley's "conscious object" to commit
murder.  Likewise, we reject today Mr. Reed's argument that the
State had to show that it was his "conscious object" to commit
arson.  Section 403(a) permitted the jury to impose accomplice
liability on Mr. Reed if the State merely showed that he aided Mr.
Thul "with the purpose of ... facilitating the commission of"
arson.  The instruction given by the Trial Court said exactly that. 

     Affirmed.