Brian Darrell Hattabaugh v. State of Arkansas

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ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

ar05-296

DIVISION I

BRIAN DARRELL HATTABAUGH

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CA CR 05-296

November 2, 2005

APPEAL FROM THE CIRCUIT COURT OF CRAWFORD COUNTY

[NO. CR -03-568]

HONORABLE GARY RAY COTTRELL,

JUDGE

AFFIRMED

Terry Crabtree, Judge

A jury in Crawford County found appellant, Brian Darrell Hattabaugh, guilty of robbery for which he was sentenced to twenty years in prison. Appellant contends on appeal that the evidence is not sufficient to support the guilty verdict and that the trial court erred when it refused to include theft as an instruction to the jury. We find no error and affirm.

When an appellant challenges the sufficiency of the evidence to support a conviction on appeal, this court's test is whether there is substantial evidence to support the verdict. Payne v. State, 86 Ark. App. 59, 159 S.W.3d 804 (2004). Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. Moore v. State, 355 Ark. 657, 144 S.W.3d 260 (2004). In determining whether evidence is substantial, the evidence is viewed in the light most favorable to the State, considering only the evidence that supports the verdict. Payne

v. State, supra.

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). "Physical force" meansany bodily impact, restraint, or confinement, or physical threat thereof. Ark. Code Ann. § 5-12-101 (Repl. 1997). Robbery is a class B felony. Ark. Code Ann. § 5-12-102(b).

At trial, Hazel Hattabaugh, appellant's grandmother, testified that she lives at 718 Locke Street in Alma with her husband and their nine-year-old son. On December 1, 2003, appellant appeared at her house with a bag of dirty clothes to do laundry. Ms. Hattabaugh said that she was nervous about appellant being in the house alone with her and her son because of appellant's past troubles with drugs and because she had been weakened by a recent surgery. She heard a vehicle, and thinking that her husband had gotten home, she asked appellant to come outside to help unload the car. It was not her husband, however, and appellant went back inside the house. When Ms. Hattabaugh went inside, appellant was standing near her purse, and she saw a bulge in the front of appellant's shirt. She said that she knew that the bulge was her wallet, which contained savings of $4,900 in cash, along with her driver's license, social security card, and phone cards. She begged him "not to do this to me," and she pulled up his shirt, revealing her wallet stuck in his pants. Appellant raised his fist to her, and her son ran up behind appellant, crying. She asked appellant again not to take her wallet, and he lowered his fist. He then shoved Ms. Hattabaugh in the stomach, pushing her against a door as he ran out of the house. Appellant stopped in the yard, and when Ms. Hattabaugh approached, he fled down the street.

Appellant was taken into custody four days later. He confessed to taking his grandmother's wallet while at her house to wash clothes. Appellant told the officers where the wallet could be located, and it was found with some cash remaining inside. Of the $4,900 that had been in the wallet, $3,645 was not recovered.

Appellant testified that he was using methamphetamine on the day in question, and he admitted taking his grandmother's wallet. He said that he pulled his shirt down when his grandmother grabbed it, but he did not recall raising his fist to her or shoving her in the stomach. He said that it was possible that he might have done those things and that his grandmother would not lie.

As his sufficiency-of-the-evidence argument, appellant contends that there is no evidence that he employed physical force when he stole the wallet. It is his argument that, at the time the alleged force was used, the theft had already been completed, so it cannot be said that he used force in taking the property. This issue has not been preserved for appeal. Rule 33.1(a) of the Arkansas Rules of Criminal Procedure requires a defendant in a jury trial to make a motion for a directed verdict at the close of the evidence offered by the prosecution and at the close of all of the evidence. Where a motion for a directed verdict is made, the motion must specifically state how the evidence is deficient. Newman v. State, 353 Ark. 258, 106 S.W.3d 438 (2003). A general motion will not suffice; a motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. Houston v. State, 82 Ark. App. 556, 120 S.W.3d 115 (2003).

Subsection (c) of Rule 33.1 further states that the failure of a defendant to challenge the sufficiency of the evidence in the manner required by the rule will constitute a waiver of any question pertaining to the sufficiency of the evidence. In his first motion for directed verdict, appellant stated that "[w]e move to dismiss on the basis that the State has failed to prove a robbery offense in this case. At most, I think there's a theft charge." When this motion was renewed at the close of all evidence, it was stated that "[w]e would renew the motion to dismiss on the basis that the defense feels confident that the State has failed to prove the elements of a robbery offense in this case, and that at best, we have a theft charge that is viable." Because appellant's motions for directed verdict lacked the necessary degree of specificity, we need not address the merits of appellant's argument. We note, however, that appellant's argument is without merit. The evidence, when viewed in the appropriate light, reveals that appellant both raised his fist at his grandmother and shoved her in the stomach and into a door while making his escape with the wallet. We conclude that substantial evidence supports the finding of guilt. See, e.g., Payne v. State, supra.

The trial court refused appellant's proffered jury instructions with regard to theft of property, ruling that theft was not a lesser-included offense of robbery. Appellant contends on appeal that thetrial court's ruling was in error because there was the "slightest evidence" that he committed the offense of theft instead of robbery in light of his own testimony that no force was used during the commission of the theft.

A person commits theft of property if he knowingly takes or exercises unauthorized control over the property of another person with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103(a)(1) (Supp. 2005). Theft of property is a class B felony if the value of the property is $2,500 or more. Ark. Code Ann. § 5-36-103 (b)(1)(A). This offense is also a class B felony if the property is obtained by the threat of serious physical injury to any person or the destruction of the occupiable structure of another person. Ark. Code Ann. § 5-36-103(b)(1)(B).

No right has been more zealously protected than the right of an accused to have the jury instructed on lesser-included offenses. Brown v. State, 347 Ark. 44, 60 S.W.3d 422 (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 the 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.

Although appellant argues that there was the slightest evidence to support giving the theft instruction, appellant makes no argument challenging the trial court's threshold ruling that theft of property is not a lesser-included offense of robbery. In his brief, appellant merely assumes, without presenting any argument, that theft of property is a lesser-included offense of robbery. We note that appellant's proffered instruction included the interrogatory, "Do you the Jury, find beyond a reasonable doubt that the value of the property was obtained by threat of serious physical injury?" There was no evidence in this case of a threat of serious physical injury, and thus there was no rational basis for giving that part of the instruction. An appellant may not complain of the refusal of the court to give an instruction that is only partially correct, as it is his duty to submit a wholly correct instruction. Ghoston v. State, 84 Ark. App. 387, 141 S.W.3d 907 (2004); Merritt v. State, 82 Ark. App. 351, 107 S.W.3d 894 (2003).

Affirmed.

Glover, J., agrees.

Hart, J., concurs.