Hubert Corbin v. State of Arkansas

ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION I

CACR03-804

April 21, 2004

HUBERT CORBIN AN APPEAL FROM JEFFERSON COUNTY

APPELLANT CIRCUIT COURT [CR96-95-1]

V. HON. BERLIN C. JONES, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

Hubert Corbin was convicted of rape in violation of Ark. Code Ann. § 5-14-103 (a)(4) (Repl. 1997), upon evidence that he engaged in sexual intercourse or deviant sexual activity with someone less than fourteen years of age. Corbin was sentenced to ten years in the Arkansas Department of Correction. Corbin contends that the trial court erred because the trial judge refused to give the jury an instruction that sexual abuse in the first degree is a lesser-included offense of rape. We hold that sexual abuse in the first degree is not a lesser-included offense of rape; therefore, the trial court did not err in refusing to give the jury the instruction.

On January 12, 2001, the victim and her sister spent the night at the home of the appellant. The appellant returned home late in the night, changed clothes, and went out again. Upon returning home on the morning of January 13, 2001, the appellant, who was above the age of twenty-one, engaged in sexual intercourse with the victim who was a thirteen-year-old female. Whether the act was consensual was disputed at trial. According to appellant, the victim went to check on the other children in the house, and when she returned she laid down and had consensual sex with him. The victim alleges that appellant asked her to have sexual intercourse with him and, despite her refusal, he took off her clothes and had sexual intercourse with her. The victim reported the incident the next day, and the appellant was charged and later convicted of rape.

It is reversible error for a court 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, 105 (2003). We will affirm the 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. A defendant is entitled to an instruction on a lesser-included offense when there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense and when the proffered instruction truly covers a lesser-included offense. Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996). We need not address whether there was a rational basis to include the instruction, because sexual abuse in the first degree is not a lesser-included offense of rape.

Appellant contends that the Arkansas Supreme Court in Langley v. State, 315 Ark. 472, 868 S.W.2d 181 (1994), held that sexual abuse is a lesser-included offense of rape. The appellee argues that appellant's reliance on Langley is misplaced because it was decided prior to the court's clarification in McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002), that lesser-included offenses are determined by the plain language of Ark. Code Ann. § 5-1-110 (b) (Repl. 1997). The appellee is correct; whether one offense is a lesser-included offense of another is determined solely by statute in Arkansas. Gaines v. State, ___Ark. ___, 118 S.W.3d 102 (2003). Therefore, appellant's reliance on Langley is not proper.

In McCoy, the Arkansas Supreme Court made it clear that whether an offense is a lesser-included offense of another is determined by the three-part test set forth in Ark. Code Ann. § 5-1-110 (b)(Repl. 1997). Ark. Code Ann. § 5-1-110 (b) provides:

(b) 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 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.

Appellant contends that the court erred in not giving the jury instruction because under Ark. Code Ann. § 5-1-110 (b)(1), rape and sexual abuse in the first degree have the same proof requirements. According to Ark. Code Ann. § 5-1-110 (b)(1), an offense is a lesser included offense of another when it is established by proof of the same or less than all the elements required to prove the commission of the offense charged. The State charged appellant with rape under Ark. Code Ann. § 5-14-103 (a)(4), which provides that a person commits rape if he engages in sexual intercourse or deviate sexual activity with another person, and the victim is under the age of fourteen and the offender is more than two years older than the victim. The sexual abuse statute has additional requirements. According to Ark. Code Ann. § 5-14-108 (a)(4) (Repl. 1997), sexual abuse occurs when a person eighteen or older engages in sexual contact with a person, not his spouse, who is less than fourteen years old. To prove sexual abuse the State has to prove that the offender was older than eighteen, the victim was not his spouse, and there was sexual contact.

Sexual abuse in the first degree is not a lesser-included offense of rape under Ark. Code Ann. § 5-1-110 (b)(1) because the sexual abuse statute contains elements that are not required under the rape statute. The rape statute does not require proof of the offender's age, the existence of sexual contact, or that the victim was not the spouse of the offender. The court did not err in refusing the requested instruction.

    Affirmed.

    Stroud, C.J., and Pittman, J., agree.