Criminal law -- Criminal trespass is lesser-included offense in crime of burglary; error to refuse instruction on lesser-included offense. [ASCII, WP5.1]

Shannon ALLEN v. STATE of Arkansas

CACR 95-440                                        ___ S.W.2d ___

                  Court of Appeals of Arkansas
                             En Banc
                  Opinion delivered May 8, 1996


1.   Criminal law -- criminal trespass is lesser-included offense
     in crime of burglary. -- Criminal trespass is a lesser-
     included offense in the crime of burglary.

2.   Criminal law -- lesser-included offense -- when error occurs
     in refusal to instruct on. -- It is not error for a court to
     refuse or fail to instruct on a lesser-included offense where
     the evidence clearly shows only one of two possible results:
     that the defendant is either guilty of the greater offense or
     is innocent; but error occurs when the trial court refuses to
     give a lesser-included offense instruction where there is even
     the slightest evidence to warrant it.

3.   Jury -- instructions -- when defendant is entitled to
     particular instruction. -- A defendant is entitled to a
     particular jury instruction if a timely request is made, the
     evidence supports the proffered instruction, and the
     instruction correctly states the law.

4.   Jury -- instructions -- error to refuse instruction on lesser-
     included offense. -- The appellate court held that it was
     error for the trial court to refuse appellant's requested jury
     instruction on the lesser-included offense of criminal
     trespass where, although no evidence supported the lesser-
     included-offense instruction at the time instructions were
     discussed during a noon recess, subsequent testimony by
     appellant supported the proffered instruction and correctly
     stated the law; the trial court should have reversed its
     earlier ruling denying the lesser-included offense instruction
     and included it in the charge to the jury. 

5.   Jury -- instructions -- objections must be timely -- appellant
     made timely objection. -- Objections to jury instructions must
     be made either before or at the time that instructions are
     given; appellant made a timely objection to the trial courtþs
     refusal to include an instruction on the lesser-included
     offense during a noon recess when the instructions were
     discussed, and his counsel proffered an instruction on that
     offense when the instructions were discussed and before they
     were given to the jury; those actions were sufficient to
     inform the trial court regarding the appellantþs objection to
     the instructions that were to be given.

6.   Appeal & error -- abstracting requirements satisfied. -- Where
     the sole point on appeal was whether there was a rational
     basis for a convicition of criminal trespass, and where
     appellant abstracted his testimony that he claimed to have no
     intent to borrow or steal property belonging to the owner of
     a residence, appellant's abstract contained those material
     parts of the record necessary to understand the issue
     presented for the appellate court's review; the matter was
     reversed and remanded.


     Appeal from Garland Circuit Court; Tom Smitherman, Judge;
reversed and remanded.
     Daniel D. Becker and Michael E. Harmon, for appellant.
     Winston Bryant, Att'y Gen., by:  J. Brent Standridge, Asst.
Att'y Gen., for appellee.

     Wendell L. Griffen, Judge.*ADVREP*CA8*                 EN BANC





                                   CACR 95-440

                                                May 8, 1996


SHANNON ALLEN                      AN APPEAL FROM GARLAND         
           APPELLANT               COUNTY CIRCUIT COURT

V.                                 HON. TOM SMITHERMAN, JUDGE


STATE OF ARKANSAS                         
                APPELLEE           REVERSED AND REMANDED





                   Wendell L. Griffen, Judge.

     Shannon Allen appeals his conviction in the Garland County
Circuit Court following a jury verdict of guilty on the charge of
burglary, and contends that the trial court erred by refusing his
requested and proffered jury instruction for the lesser-included
offense of criminal trespass.  We reverse and remand this case for
a new trial, because we agree with appellant that a rational basis
was established for charging the jury regarding the lesser-included
offense.
     Appellant was charged with burglary in connection with his
entry into a residence in Hot Springs, and his eventual departure
(accompanied by his ex-wife) with a Super Nintendo game that
belonged to the resident of the house.  The prosecution presented
its proof during the morning session of the one-day trial.  At the
noon recess, the trial judge and counsel for the parties considered
the jury instructions to be given, and appellantþs counsel
requested that the jury be instructed regarding the lesser-included
offense of criminal trespass.  Counsel informed the trial judge
that he expected the appellant to testify that appellant
accompanied his ex-wife into the residence with the permission of
the inhabitant, and that appellant did not know that she had the
article that was allegedly stolen.  However, the trial court denied
appellantþs requested instruction.  During the afternoon session,
appellant testified as his counsel had predicted.   Appellant
contends that his proffered testimony warranted the requested
instruction.  The State argues that appellant should have renewed
his objection to the jury instruction after his case-in-chief
ended, and that the trial courtþs denial of the instruction was not
improper because the ruling was made based on the testimony heard
to that point (when the jury instructions were discussed at the end
of the prosecution's case-in-chief during the noon recess).  The
State also urges that we affirm based upon its objection to
appellantþs supplemental abstract.
     Arkansas Code Annotated  5-1-110(c) (Repl. 1993) provides
that the court shall not be obligated to charge the jury with
respect to an included offense unless there is a rational basis for
a verdict acquitting the defendant of the offense charged and
convicting him of the included offense.  It is well settled that
criminal trespass is a lesser-included offense in the crime of
burglary.  Graves v. State, 264 Ark. 564, 572 S.W.2d 847 (1978). 
It is not error for a court to refuse or fail to instruct on a
lesser-included offense where the evidence clearly shows only one
of two possible results -- the defendant is either guilty of the
greater offense or is innocent.  Brown v. State, 321 Ark. 413, 903 S.W.2d 160 (1995).  But error occurs when the trial court refuses
to give a lesser-included-offense instruction where there is even
the slightest evidence to warrant it.  State v. Jones, 321 Ark.
451, 903 S.W.2d 160 (1995).  A defendant is entitled to a
particular jury instruction if a timely request is made, the
evidence supports the proffered instruction, and the instruction
correctly states the law.  U.S. v. Hood, 748 F.2d 439 ( 8th Cir.
1984).
     Based upon these principles, we hold that it was error to
refuse the lesser-included-offense instruction.  Although there was
no evidence to support the lesser-included-offense instruction at
the time of the noon recess when the instructions were discussed,
the trial court had been alerted by appellantþs counsel that such
evidence was forthcoming.  That prediction, standing alone, would
not have warranted the instruction because it was not evidence. 
However, the trial judge would have been prudent to withhold a
ruling on the lesser-included-offense instruction pending
presentation of the defense case.  Because the subsequent testimony
by appellant supported the proffered instruction and correctly
stated the law, the trial court should have reversed its earlier
ruling denying the lesser-included-offense instruction and included
it in the charge to the jury. 
     The Stateþs contention that appellant should have renewed his
objection to the jury instructions after he presented his case
appears to be based upon the view that an objection to jury
instruction is in the same procedural realm as a motion for
directed verdict.  There is a clear line of precedent holding that
the motion for directed verdict must be renewed at the close of all
the evidence in order for a party to preserve its challenge to the
sufficiency of the evidence for appellate review.  See, e.g., Clay
v. State, 318 Ark. 550 S.W.2d 608 (1994); Henry v. State, 309 Ark.
1, 928 S.W.2d 346 (1992).  It is equally clear that objections to
jury instructions must be made either before or at the time that
instructions are given.  Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993).  Appellant made a timely objection to the trial courtþs
refusal to include an instruction on the lesser-included offense
during the noon recess when the instructions were discussed.  His
counsel proffered an instruction on that offense when the
instructions were discussed, and before they were given to the
jury.  Those actions were sufficient to inform the trial court
regarding the appellantþs objection to the instructions that were
to be given. 
     Although appellantþs supplemental abstract is objectionable to
the State, it does contain those material parts of the record
necessary to understand the issue presented for our review.  Newton
v. Chambliss, 316 Ark. 334, 871 S.W.2d 587 (1994).  The sole point
on appeal is whether there was a rational basis for a conviction of
criminal trespass.  Appellantþs abstracted testimony clearly
demonstrates that he claimed to have no intent to borrow or steal
the Super Nintendo game.  That testimony was enough to permit the
issue presented for our review to be understood.
     Reversed and remanded.
     Jennings, C.J., Mayfield, and Neal, JJ., agree.
     Pittman and Rogers, JJ., dissent.  
*ADVREP*CA8-A*
                            EN BANC 



                                   CACR 95-440

                                                 May 8, 1996


SHANNON ALLEN                      AN APPEAL FROM GARLAND
          APPELLANT                COUNTY CIRCUIT COURT
                                   [NO. CR 94-436]

VS.
                                   HONORABLE TOM SMITHERMAN,
                                   JUDGE

STATE OF ARKANSAS                  DISSENT
          APPELLEE




                   John Mauzy Pittman, Judge.


     The appellant in this case was found guilty by a jury of
residential burglary.  In reversing that conviction, the majority
holds that appellant was entitled to an instruction on the lesser
included offense of criminal trespass.  I dissent primarily because
there was no rational basis for the giving of such an instruction,
but also because the issue was not properly preserved for appellate
review.  
     To place the issue in perspective, I feel that it is necessary
to briefly set out the evidence presented by the State, even though
appellant failed to include such testimony in his abstract.  The
record reflects that Darrell Heller, age twenty-seven, who is
mentally disabled, lived at home with his mother and father.
According to Heller, on the evening of July 3, 1994, he took a bath
while his parents were out of the house.  He said that he had
locked the front door before bathing.  After finishing his bath, he
discovered appellant looking through a dresser in his parents'
bedroom.  He also saw appellant's wife standing in the kitchen. 
Darrell testified that he had not previously known either appellant
or his wife and that he asked them why they were in the house.  He
also asked them to leave and, when they paid no attention to him,
he asked them to leave again.  Heller said that he "escorted" them
out and that he later discovered that his Super Nintendo and five
games were missing, along with his radio.  His father, Vernon
Heller, testified that the storm door had been yanked open and that
the metal frame had been bent.
     A person commits residential burglary if he enters or remains
unlawfully in a residential occupiable structure of another person
with the purpose of committing therein any offense punishable by
imprisonment.  Ark. Code Ann.  5-39-201(a) (Repl. 1993).  A person
commits criminal trespass if he purposely enters or remains
unlawfully in or upon a vehicle or the premises of another person. 
Ark. Code Ann.  5-39-203(a) (Repl. 1993).  Criminal trespass is
complete upon the making of an unlawful entry.  No intent to engage
in further unlawful conduct is necessary.  Brown v. State, 12 Ark.
App. 132, 671 S.W.2d 228 (1984).
     The majority is correct in its assertion that criminal
trespass is a lesser included offense of burglary.  Grays v. State,
264 Ark. 564, 572 S.W.2d 847 (1978).  The majority is also on firm
ground in stating that it is error to refuse a lesser included
offense instruction where there is even the slightest evidence to
warrant it.  If there is any rational basis upon which the jury
could have found the accused guilty of a lesser crime, it is
reversible error to refuse to give a correct instruction on that
lesser crime.  Martin v. State, 46 Ark. App. 276, 879 S.W.2d 470
(1994).  The majority's ruling in this case is based on the
testimony of the appellant.  However, the appellant's testimony
provides no rational basis for the giving of an instruction on
criminal trespass.  
     Appellant testified that he and his wife were invited inside
the home by Darrell and that Darrell offered them both a coke and
gave his wife a piece of cake to eat.  Appellant said that he went
onto the porch to wait while Darrell fixed his wife's hair.  He
testified that about ten minutes later Darrell and his wife came to
the door and that Darrell handed her a sack before showing her out. 
Appellant said that he did not know what was in the sack until his
wife told him while they were walking down the street that she was
borrowing Darrell's Super Nintendo.  
     As indicated above, the crime of criminal trespass is founded
upon an unlawful entry.  However, appellant denied that his entry
to the home was unlawful.  It was his testimony that he entered the
home with the permission of the occupant.  It was also his
testimony that he entered the home without the intent to commit any
crime, and in fact he denied any involvement in the theft of the
Super Nintendo.  Consequently, if appellant's testimony were to be
believed, it would completely exonerate him of committing not only the offense of burglary, but also that of criminal trespass.  In a
long line of cases, it has been held that it is not error for the
trial court to refuse or fail to instruct on the lower offense
where the evidence clearly shows that defendant is either guilty of
the greater offense charged, or innocent.  Brown v. State, 321 Ark.
413, 903 S.W.2d 160 (1995).  It has also been uniformly held that
there is no rational basis for the giving of a lesser included
offense instruction where the theory of defense is premised upon a
complete denial of the defendant's participation in the act
charged.  State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995).  In
sum, appellant's testimony was inconsistent with a charge of
criminal trespass.  And, since his defense was that of a complete
denial of any criminal conduct, I cannot say that the trial court
erred in refusing the lesser included offense instruction.  There
simply was no rational basis to instruct the jury on criminal
trespass.
     With regard to the procedural aspect of this case, the
majority misunderstands the State's argument.  Contrary to the
majority's conclusion, the State does not liken the situation to
the requirement for renewing a motion for a directed verdict.  
     The record reflects that the question of jury instructions was
discussed at a noon recess just after the State had rested its
case.  The only "proffer" of testimony offered by appellant at that
time in support of his request for an instruction on criminal
trespass was the statement, "I anticipate the testimony of my
client to be that he did not have any intent of going to that house
with the purpose of committing a theft or any crime punishable by
law."  The trial judge stated that there was no evidence in the
record to support that instruction and ruled that "I'm just going
to instruct at this time on residential burglary."
     It is the State's position that this issue was not properly
preserved for appeal since appellant did not renew his request for
the instruction.  The State points out that appellant's argument
rests entirely on his own testimony and reasons that a trial court
cannot be held in error based on evidence adduced after its ruling
is made.  The majority holds, however, that it was incumbent on the
trial court to reverse its ruling in light of appellant's
testimony.  I cannot agree.  First, as discussed above, appellant's
testimony did not provide a rational basis for the giving of the
instruction.  Secondly, it is clear from the record that the trial
judge's ruling was conditional and based on the record made thus
far in the trial.  If appellant felt that his testimony added
something to the earlier proffer, or provided further justification
for his request for the instruction, it was for appellant to urge
the court to reconsider its ruling.  I know of no authority, and
the majority cites none, placing the onus on the trial court.  See
Thomas v. Allstate Ins. Co., 27 Ark. App. 27, 766 S.W.2d 31 (1989).
     Moreover, appellant failed to abstract any of the State's
evidence that had been presented prior to the court's ruling. 
Without a review of the evidence before the court when it ruled, we
cannot discern any error.  Therefore, the appellant has failed to
produce a record that demonstrates error.  Young v. Young, 316 Ark.
456, 872 S.W.2d 856 (1994).
     I would affirm.
     Rogers, J., joins in this dissent.