Tyrell Benson v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION III

TYRELL BENSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR03-477

March 31, 2004

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT

[CR-02-2345]

HON. CHRISTOPHER C. PIAZZA,

CIRCUIT JUDGE

AFFIRMED

Larry D. Vaught, Judge

Appellant Tyrell Benson challenges the circuit court's denial of his request for a theft-by-receiving jury instruction as a lesser-included offense of the aggravated-robbery charges against him. We affirm.

On March 22, 2002, appellant and three of his friends were involved in an altercation with some students from Monticello High School who were staying at the Marriott Courtyard Hotel in Little Rock while in town for a convention. The exact circumstances surrounding the altercation were disputed, but appellant and one of his friends were eventually charged with three counts of aggravated robbery and three counts of misdemeanor theft of property for taking four necklaces and a twenty-dollar bill at gunpoint from three male students from the high school. The proceedings were severed, and appellant stood trial on January 27, 2003.

After the close of the evidence, a jury instruction conference was held. Appellant requested a jury instruction for theft-by-receiving as a lesser-included offense of aggravated robbery. Appellant based the request on his testimony that two of his friends were responsible for the robbery and that the extent of his involvement was merely divvying up the four necklaces after the incident. He argued that the evidence presented at trial supported a theft-by-receiving conviction. His request for the instruction was denied by the circuit judge who found, (1) that theft by receiving was not a lesser-included offense of aggravated robbery, and (2) that even if it was, appellant's defense was that he did not commit the offense, and thus there was no rational factual basis for giving the lesser-included instruction. The jury convicted appellant of aggravated robbery and theft of property and he was sentenced to a total of thirty years in the Arkansas Department of Correction. The judgment and commitment order was entered on January 30, 2003, and appellant filed a timely notice of appeal on February 6, 2003. This appeal followed.

Our supreme court recently repeated that it is reversible error to refuse to instruct on a lesser-included offense when there is the slightest evidence to support the instruction. Gaines v. State, __ Ark. __ ,118 S.W.3d 102 (2003). However, we will affirm a trial court's decision not to give an instruction on a lesser-included offense if there is no rational basis for giving the instruction. Id. Appellant argues that the circuit court erred by denying his request for a theft-by-receiving jury instruction because it is a lesser-included offense of the aggravated-robbery charges and there was a rational basis for giving it. We need not reach the merits of appellant's argument, however, as his claim is barred because he did not proffer such an instruction at trial. It is well established that one requesting a jury instruction must prepare and submit to the court a correct instruction, and where he fails to do so, he is in no position to argue on appeal that the request should have been granted. Merritt v. State, 82 Ark. App. 351, 107 S.W.3d 894 (2003). Thus, we affirm on this basis.

Affirmed.

Neal and Roaf, JJ., agree.