Vickers v. State
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NOT DESIGNATED FOR PUBLICATION
ARKANSAS COURT OF APPEALS
DIVISION II
No. CACR08-915
Opinion Delivered
April 8, 2009
APPEAL FROM THE GARLAND
COUNTY CIRCUIT COURT
[NO. CR2007-461]
LONNIE DEAN VICKERS
APPELLANT
V.
HONORABLE JOHN HOMER
WRIGHT, JUDGE
STATE OF ARKANSAS
APPELLEE
AFFIRMED
LARRY D. VAUGHT, Chief Judge
Appellant Lonnie Vickers was convicted of robbery and sentenced to thirty years’
imprisonment. He appeals arguing that the trial court erred in denying his proffered jury
instruction on the lesser-included offense of attempted robbery. We affirm.
Vickers was charged by felony information with committing robbery on August 5,
2007, upon an employee of E-Z Mart located in Hot Springs, Arkansas. At trial, Merle Ursery
testified that she was working the graveyard shift when Vickers entered the store and began
screaming at her. Ursery was tending to a customer at the time and when she opened the cash
register, Vickers ran at her, struck her with his elbow, knocked her back against the counter,
and started taking money out of the register. When Vickers tried to flee the store, a customer
stopped him and a scuffle ensued. The customer subdued Vickers until police arrived.
During jury-instruction arguments, Vickers’s counsel proffered an instruction on the
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lesser-included offense of attempted robbery. Counsel contended that there was an issue for
the jury as to whether the robbery was completed because Vickers never left the premises of
E-Z Mart with the money. The trial court refused to give the attempted-robbery instruction,
and Vickers was convicted of robbery.
Our supreme court has held that a party is entitled to a jury instruction when it is a
correct statement of the law, and there is some basis in the evidence to support giving the
instruction. Barnes v. Everett, 351 Ark. 479, 95 S.W.3d 740 (2003). We will not reverse a trial
court’s decision to give an instruction unless the court abused its discretion. Id.
On appeal, Vickers argues that the trial court abused its discretion when it failed to give
the jury the attempted-robbery instruction. He contends that whether his conduct constituted
an attempted robbery or the full commission of robbery was an issue for the jury to
determine; therefore, the jury should have been instructed on both robbery and attempted
robbery.
In order for a defendant to be entitled to an instruction on a lesser-included offense,
two conditions must be satisfied. Weber v. State, 326 Ark. 564, 933 S.W.2d 370 (1996). First,
the proffered instruction must truly cover a lesser-included offense. Id. Second, there must be
a rational basis for a verdict acquitting the defendant of the offense charged and convicting
him of the included offense. Id.; Ark. Code Ann. § 5-1-110(c) (Repl. 2006).
As for the first condition, according to statute, attempt is a lesser-included offense. Ark.
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Code Ann. § 5-1-110(b)(2) (Repl. 2006).1 As for the second condition, there was no rational
basis for a verdict acquitting Vickers of robbery and convicting him of attempted robbery. All
of the evidence presented demonstrated that Vickers completed the offense of robbery.
A person commits robbery if, with the purpose of committing a felony or
misdemeanor theft or resisting apprehension immediately after committing a felony or
misdemeanor theft, the person employs or threatens to immediately employ physical force
upon another person. Ark. Code Ann. § 5-12-102(a) (Repl. 2006). A person commits theft
of property if he knowingly takes or exercises unauthorized control over, or makes an
unauthorized transfer of an interest in, the property of another person, with the purpose of
depriving the owner of the property. Ark. Code Ann. § 5-36-103(a)(1) (Repl. 2006).
“Physical force” means any bodily impact, restraint, or confinement. Ark. Code Ann. §
5-12-101(1) (Repl. 2006).
The evidence presented at trial established that Vickers entered the E-Z Mart, struck
an E-Z Mart employee with his elbow, knocked the employee against the counter, and
removed money from the cash register. This evidence supports each of the elements of the
crime of robbery. Despite Vickers’s arguments to the contrary, it is of no significance that
Vickers never made it out of the convenience store with the money. The robbery was
completed while Vickers was still inside the store, before he tried to make his escape. We will
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Section 5-1-110(b)(2) provides: “A defendant many be convicted of one (1)
offense included in another offense with which he or she is charged. An offense is included
in an offense charged if the offense: . . . [c]onsists of an attempt to commit the offense
charged or to commit an offense otherwise included within the offense charged . . . .”
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affirm a trial court’s decision to refuse instructions on a lesser-included offense if there is no
rational basis for giving the instruction. Harshaw v. State, 71 Ark. App. 42, 25 S.W.3d 440
(2000). In the case at bar, there was no rational basis for giving the lesser-included instruction
for attempted robbery. As such, we hold that the trial court did not abuse its discretion in
denying the proffered instruction.
Affirmed.
H ART and B ROWN, JJ., agree.
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