Edward Mayberry v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

ANDREE LAYTON ROAF, JUDGE

DIVISION IV

EDWARD MAYBERRY

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR01-900

August 28, 2002

AN APPEAL FROM HOT SPRING COUNTy CIRCUIT COURT

CR2000-209-2

HONORABLE PHILLIP H. SHIRRON

AFFIRMED

Edward Mayberry was convicted by a jury of aggravated robbery and kidnapping and was sentenced to five years for kidnapping and fifteen years for aggravated robbery. On appeal, Mayberry argues that the trial court erred in 1) failing to give his requested instruction on robbery as a lesser-included offense of aggravated robbery, and 2) denying his motion for directed verdict. We disagree and affirm.

At trial, C.A. Haley, the victim, testified that Mayberry, whom he had known for about twelve years, came to his home in Malvern on the evening of September 4, 2000. After a time, Mayberry asked for a band-aid, and when Haley went to retrieve one from the bedroom, Mayberry followed. Haley stated that Mayberry had a kitchen knife in his hand and told him to get on the floor. Haley further stated that Mayberry "leaned over [him] with the knife" and said that he needed to "have $3500 by [the next day] to pay [his] probation officer." Mayberry then used a coat hanger to bind Haley's hands together and used some shoestring to tie his feet. Haley produced his checkbook, and Mayberry released his hands and instructed him to write a check to Mayberry for $2000 and another check to "Tammy" for $1500.1 After Mayberry left, Haley was able to free himself, but he did not call the police until the next morning, claiming he was afraid that Mayberry was watching his home. The officers who responded retrieved the coat hanger and shoe laces used to restrain Haley and noted bruising on his wrists. The next morning, Mayberry went to Haley's bank to cash the check. The bank had been alerted and contacted police to inform them that Mayberry had attempted to cash the check. Mayberry was arrested as he left the bank. During the search incident to arrest, the police found one of the victim's checks, made out for $2500, on Mayberry.

For his directed-verdict motions, Mayberry argued that, on the charge of kidnapping, there was no proof that the victim was transported, and on the charge of aggravated robbery, there was no proof that anything was taken. The trial court denied the motions after the State's case and after Mayberry renewed his directed-verdict motions at the close of all the evidence.

On appeal, Mayberry argues that the trial court erred in denying his motions for directed verdict. Specifically, he claims there was no significant transportation of the victim necessary to support a kidnapping verdict, and there was no evidence presented that anything was taken to constitute robbery. The State counters, arguing that there need not be removal of the victim to constitute kidnapping and that the victim's restraint by Mayberry is substantial evidence to support his kidnapping conviction. The State also argues that no transfer of property need take place because an aggravated robbery is complete when physical force is threatened with a deadly weapon, in this case, a knife. The State's contentions are correct.

Motions for directed verdict are treated as challenges to the sufficiency of the evidence. McFarland v. State, 337 Ark. 386, 989 S.W.2d 899 (1999). When reviewing the sufficiency of the evidence on appeal, the appellate court does not reweigh the evidence but determines instead whether there is substantial evidence supporting the verdict. Id. Substantial evidence is evidence, direct or circumstantial, forceful enough to compel a conclusion one way or the other and goes beyond mere speculation or conjecture. Id. In determining whether there is substantial evidence, the appellate court views the evidence in the light most favorable to the State and considers only the evidence supporting the verdict. Id.

Arkansas Code Annotated section 5-11-102 (Repl. 1997) states that a person commits kidnapping if, without consent, he restrains another person so as to substantially interfere with his liberty with the purpose of holding him for any act to be performed or not performed for his release or facilitating the commission of any felony or flight therefrom. The supreme court has held that this statute "speaks in terms of restraint and not removal." McFarland, 337 Ark. at 395, 989 S.W.2d at 904; see Smith v. State, 318 Ark. 142, 883 S.W.2d 837 (1994). Arkansas Code Annotated section 5-11-102 reaches "a greater variety of conduct because restraint can be accomplished without removal." Id. Consequently, Mayberry's contention that there could not have been a kidnapping without significant transportation of the victim is simply not correct. Moreover, the victim's testimony is substantial evidence supporting Mayberry's conviction for kidnapping.

Mayberry also argues that robbery is a lesser-included offense of aggravated robbery and that there is a rational basis for the lesser-included instruction because no weapon was recovered. The State contends that there was no rational basis for giving an instruction on robbery as a lesser-included offense because there was proof that Mayberry had a weapon and that the victim so testified.

The trial court does not err in failing to instruct the jury on a lesser offense where the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent. Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000). When the facts are susceptible to more than one interpretation, a lesser-included instruction should be given. Id. However, the facts of a particular case may develop so clearly that there would be no rational basis for giving a lesser-included instruction. Id. Robbery is a lesser-included offense of aggravated robbery; however, a trial judge is obliged to give the instruction only if there is a rational basis for acquitting the defendant of aggravated robbery and convicting him of the lesser offense of robbery. Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983).

A person commits robbery, if with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another. Ark. Code Ann. § 5-12-102(a) (Repl. 1997). A person commits aggravated robbery if he commits robbery and he 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(a) (Repl. 1997). No transfer of property need take place to constitute a robbery because the offense is completed when the defendant threatens physical force. Robinson v. State, 317 Ark. 17, 875 S.W.2d 837 (1994). Consequently, no transfer of property need take place to constitute an aggravated robbery so long as the defendant is armed with a deadly weapon or attempts or inflicts death or serious physical injury.

At trial, the victim testified that Mayberry had a "knife in his hand" and told him to get on the floor, after which he proceeded to bind the victim's hands and feet. The victim also testified that Mayberry "leaned over [him] with the knife" and stated that he needed $3500 to pay his probation officer. Mayberry then untied the victim long enough for him to write two checks. The victimstated that there were no verbal threats to kill him but that Mayberry did threaten him by "holding a knife next to [his] throat." There was no rational basis for the instruction, and it was not error for the trial court to refuse the instruction on the lesser-included offense of robbery. See Tarkington v. State, 313 Ark. 399, 855 S.W.2d 306 (1993).

Affirmed.

Hart and Vaught, JJ., agree.

1 There was some discrepancy in the victim's testimony with regard to the $2000 check. The check, which was confiscated from Mayberry at the bank, was made out in the amount of $2500, but it did note on the subject line that the check was for a truck, as the victim had previously testified.