Melvin C. Hobbs v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

SAM BIRD, JUDGE

DIVISION I

MELVIN C. HOBBS,

APPELLANT

v.

STATE OF ARKANSAS,

APPELLEE

CACR02-334

NOVEMBER 13, 2002

APPEAL FROM THE DESHA COUNTY CIRCUIT COURT,

NO. CR2001-1-2,

HON. SAMUEL B. POPE, JUDGE

AFFIRMED

The appellant, Melvin C. Hobbs, was found guilty in a jury trial of first-degree battery in connection with the shooting of Robert Moore. Appellant was sentenced as an habitual offender to a term of thirty years in prison. His sole issue on appeal is that the trial court erred in failing to instruct the jury on second and third-degree battery as lesser-included offenses. We find no error and affirm.

The victim, Robert Moore, testified that he was staying at a friend's residence on the night of August 3, 2000. Moore said that he heard a knock at the door at around 10:00 p.m., while he was playing the piano and his friend was showering. Moore opened the door to find appellant, whom Moore had met at a party the previous evening. Appellant told Moore that he had left his beer there the night before, and he asked if he could come inside to look for it. Moore then saw that appellant was carrying a shotgun. Moore testified that appellant said that he would shoot Moore in the foot if Moore did not let him inside. As Moore was

slamming the door closed, a gun blast came through the lower portion of it. Moore, who was barefoot, was struck in the left foot. He was taken to the hospital where x-rays showed what Moore estimated to be ten to fifteen pellets in his foot. The pellets were not removed, and Moore said that his foot still ached from time to time.

On his part, appellant testified that he did not shoot Mr. Moore. He said that at the time Moore was shot, he was elsewhere with a man named "June."

The trial court declined to give appellant's proffered jury instructions on second and third-degree battery. Appellant contends that the trial court's ruling was in error.

A trial court's ruling on whether to submit jury instructions will not be reversed absent an abuse of discretion. Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001). A trial court's decision to exclude instructions on lesser-included offenses will be affirmed only if there is no rational basis for giving the instructions. Taylor v. State, 77 Ark. App. 144, 72 S.W.3d 882 (2002). Where the defendant relies on the defense of complete denial, there is no rational basis for giving instructions on lesser-included offenses, and the trial court is correct to refuse such instructions. See Atkinson v. State, 347 Ark. 336, 64 S.W.3d 259 (2002). In light of appellant's testimony that he was not present when Moore was shot, we find no abuse of discretion in the trial court's refusal to give the proffered instructions.

Affirmed.

Jennings and Crabtree, JJ., agree.