Terrell Wimberly v. State of Arkansas

NOT DESIGNATED FOR PUBLICATION

ARKANSAS COURT OF APPEALS

JUDGE KAREN R. BAKER

DIVISION I

TERRELL WIMBERLY

APPELLANT

v.

STATE OF ARKANSAS

APPELLEE

CACR02-883

MARCH 19, 2003

APPEAL FROM THE ASHLEY COUNTY CIRCUIT COURT

[CR2000-229-2]

HONORABLE SAM POPE, CIRCUIT JUDGE

AFFIRMED

Appellant, Terrell Wimberly, was convicted of aggravated robbery by a jury in Ashley County Circuit Court. Pursuant to a plea agreement, he was sentenced to ten years' imprisonment in the Arkansas Department of Correction.1 Appellant has two arguments on appeal. First, appellant argues that the State failed to prove that the victim sustained a "serious physical injury;" thus, there was no substantial evidence to support a conviction for aggravated robbery. Second, appellant argues that the trial court erred in refusing to instruct the jury on the lesser-included offense of third-degree battery. We affirm.

On September 19, 2000, appellant called Mazzio's Pizza in Crossett, Arkansas and ordered a pizza. Appellant testified at trial that he knew that he did not have the money to pay for the pizza

when he ordered it. Justin Tippen, the victim, delivered the pizza. When appellant did not answer the door immediately, Tippen began walking back to his car. According to appellant's own testimony, he then ran behind Tippen, picked up a metal bar and hit him on the leg with it with the intent of getting both the pizza and the money Tippen was carrying. After the altercation, Tippen was able to get into his truck and leave. Tippen then met friends at a gas station down the road, and they took him to the hospital.

Kala Marks, an LPN at the Ashley County Medical Center, testified that she recalled seeing Mr. Tippen in the emergency room on September 19, 2000. Tippen explained to Ms. Marks that he had been hit with a barbell. She testified that his right leg and ankle were injured. He had a laceration that did not require suturing, and the x-rays were negative. There was swelling in the shin area; however, after treatment for the laceration and bruising, he was sent home. She testified that someone with such an injury could possibly have difficulty walking for a period of approximately two weeks. Mr. Tippen testified that he had to have a friend drive him to school and he limped for a couple of weeks after the incident.

Despite defense counsel's request for an instruction on battery, the trial judge instructed the jury only as to aggravated robbery. At the conclusion of the trial, appellant was found guilty of aggravated robbery.

A motion for a directed verdict is treated as a challenge to the sufficiency of the evidence. Cook v. State, 77 Ark. App. 20, 73 S.W.3d 1 (2002). Rule 33.1(a) of the Rules of Criminal Procedure states that, "In a jury trial, if a motion for directed verdict is to be made, it shall be made at the close of the evidence offered by the prosecution and at the close of all of the evidence." Subsection (c) states that, "The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver ofany question pertaining to the sufficiency of the evidence to support the verdict or judgment." Penn v. State, 319 Ark. 739, 894 S.W.2d 597 (1995) (holding that to preserve the issue of the sufficiency of the evidence in a criminal case, the appellant must move for a directed verdict both at the close of the State's case and at the close of the entire case). The record is void of any evidence of appellant's counsel making a motion for a directed verdict. Simply put, appellant failed to preserve his challenge to the sufficiency of the evidence for appeal; and therefore, we do not reach the merits of his arguments. However, were we to reach the merits of appellant's argument, we would find on these facts that there was sufficient evidence to support appellant's conviction for aggravated robbery.

Second, appellant argues that the trial court erred in refusing to instruct the jury on the lesser-included offense of battery. A trial court's ruling on whether to submit jury instructions will not be reversed absent an abuse of discretion. Cook, supra (citing Hill v. State, 344 Ark. 216, 40 S.W.3d 751 (2001)). It is reversible error to refuse to give an instruction on a lesser-included offense when the instruction is supported by even the slightest evidence. Id. We will affirm a trial court's decision to exclude an instruction on a lesser-included offense only if there is no rational basis for giving the instruction. Id. Arkansas Code Annotated section 5-1-110(b) (Repl. 1997) states that:

A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if:

(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 McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002). In Bishop v. State, 294 Ark. 303, 307, 742 S.W.2d 911, 914 (1988), our supreme court stated:

In Trotter v. State, [290 Ark. 269, 719 S.W.2d 268 (1986)], we reduced the conviction of aggravated robbery to one for first degree battery. We recognized that battery is not in the same generic class as robbery, and that it thus was not a lesser included offense in the sense of our statement in Caton v. State, 252 Ark. 420, 479 S.W.2d 537 (1972). However, we noted that first degree battery "overlapped" with aggravated robbery in that a person charged simultaneously with both offenses arising from the same incident could not be convicted of both. Cf Williams v. State, 11 Ark. App. 11, 665 S.W.2d 299 (1984).

"A person commits aggravated robbery if he commits robbery as defined in § 5-12-102, and he: (1) Is armed with a deadly weapon or represents by word or conduct that he is so armed; or (2) Inflicts or attempts to inflict death or serious physical injury upon another person." Ark. Code Ann. § 5-12-103(a) (Repl. 1997). "A person commits battery in the third degree if: (1) With the purpose of causing physical injury to another person, he causes physical injury to any person; or (2) He recklessly causes physical injury to another person; or (3) He negligently causes physical injury to another person by means of a deadly weapon; or (4) He purposely causes stupor, unconsciousness, or physical or mental impairment or injury to another person by administering to him, without his consent, any drug or other substance." Ark. Code Ann. § 5-13-203 (a) (Repl. 1997). We find that third-degree battery is not a lesser-included offense of aggravated robbery. Specifically, aggravated robbery focuses on an intent to commit a theft and a threat of physical force. Third-degree battery, in contrast, focuses on an intent to cause physical injury, while in fact, causing such injury. Because third-degree battery is not a lesser-included offense of aggravated robbery, the trial court did not err in refusing to instruct the jury as to third-degree battery.

Moreover, the felony information charged appellant with both aggravated robbery and second-degree battery; however, he was tried and convicted only on the charge of aggravatedrobbery. Finding no error, we affirm.

Gladwin and Neal, JJ., agree.

1 Appellant agreed to plead guilty to charges of residential burglary, an unrelated, second case then pending, and the State recommended a five-year sentence to run consecutively to the ten-year sentence proposed in the present case.