Allen v. State
| Decision Date | 08 May 1996 |
| Docket Number | No. CACR,CACR |
| Parties | Shannon ALLEN, Appellant, v. STATE of Arkansas, Appellee. 95-440. |
| Court | Arkansas Court of Appeals |
Daniel D. Becker, Public Defender, Michael E. Harmon, Deputy Public Defender, Hot Springs, for appellant.
J. Brent Standridge, Asst. Attorney General, Little Rock, for appellee.
Shannon Allen appeals his conviction in the Garland County Circuit Court following a jury verdict of guilty on the charge of burglary, and contends that the trial court erred by refusing his requested and proffered jury instruction for the lesser included offense of criminal trespass. We reverse and remand this case for a new trial, because we agree with appellant that a rational basis was established for charging the jury regarding the lesser included offense.
Appellant was charged with burglary in connection with his entry into a residence in Hot Springs, and his eventual departure (accompanied by his ex-wife) with a Super Nintendo game that belonged to the resident of the house. The prosecution presented its proof during the morning session of the one-day trial. At the noon recess, the trial judge and counsel for the parties considered the jury instructions to be given, and appellant's counsel requested that the jury be instructed regarding the lesser included offense of criminal trespass. Counsel informed the trial judge that he expected the appellant to testify that appellant accompanied his ex-wife into the residence with the permission of the inhabitant, and that appellant did not know that she had the article that was allegedly stolen. However, the trial court denied appellant's requested instruction. During the afternoon session, appellant testified as his counsel had predicted. Appellant contends that his proffered testimony warranted the requested instruction. The State argues that appellant should have renewed his objection to the jury instruction after his case-in-chief ended, and that the trial court's denial of the instruction was not improper because the ruling was made based on the testimony heard to that point (when the jury instructions were discussed at the end of the prosecution's case-in-chief during the noon recess). The State also urges that we affirm based upon its objection to appellant's supplemental abstract.
Arkansas Code Annotated § 5-1-110(c) (Repl.1993) provides that the court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense. It is well settled that criminal trespass is a lesser included offense in the crime of burglary. Grays v. State, 264 Ark. 564, 572 S.W.2d 847 (1978). It is not error for a court to refuse or fail to instruct on a lesser included offense where the evidence clearly shows only one of two possible results--the defendant is either guilty of the greater offense or is innocent. Brown v. State, 321 Ark. 413, 903 S.W.2d 160 (1995). But error occurs when the trial court refuses to give a lesser included offense instruction where there is even the slightest evidence to warrant it. State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995). A defendant is entitled to a particular jury instruction if a timely request is made, the evidence supports the proffered instruction, and the instruction correctly states the law. U.S. v. Hood, 748 F.2d 439 (8th Cir.1984).
Based upon these principles, we hold that it was error to refuse the lesser included offense instruction. Although there was no evidence to support the lesser included offense instruction at the time of the noon recess when the instructions were discussed, the trial court had been alerted by appellant's counsel that such evidence was forthcoming. That prediction, standing alone, would not have warranted the instruction because it was not evidence. However, the trial judge would have been prudent to withhold a ruling on the lesser included offense instruction pending presentation of the defense case. Because the subsequent testimony by appellant supported the proffered instruction and correctly stated the law, the trial court should have reversed its earlier ruling denying the lesser included offense instruction and included it in the charge to the jury.
The State's contention that appellant should have renewed his objection to the jury instructions after he presented his case appears to be based upon the view that an objection to jury instruction is in the same procedural realm as a motion for directed verdict. There is a clear line of precedent holding that the motion for directed verdict must be renewed at the close of all the evidence in order for a party to preserve its challenge to the sufficiency of the evidence for appellate review. See, e.g., Clay v. State, 318 Ark. 550, 886 S.W.2d 608 (1994); Henry v. State, 309 Ark. 1, 828 S.W.2d 346 (1992). It is equally clear that objections to jury instructions must be made either before or at the time that instructions are given. Zinger v. State, 313 Ark. 70, 852 S.W.2d 320 (1993). Appellant made a timely objection to the trial court's refusal to include an instruction on the lesser included offense during the noon recess when the instructions were discussed. His counsel proffered an instruction on that offense when the instructions were discussed, and before they were given to the jury. Those actions were sufficient to inform the trial court regarding the appellant's objection to the instructions that were to be given.
Although appellant's supplemental abstract is objectionable to the State, it does contain those material parts of the record necessary to understand the issue presented for our review. Newton v. Chambliss, 316 Ark. 334, 871 S.W.2d 587 (1994). The sole point on appeal is whether there was a rational basis for a conviction of criminal trespass. Appellant's abstracted testimony clearly demonstrates that he claimed to have no intent to borrow or steal the Super Nintendo game. That testimony was enough to permit the issue presented for our review to be understood.
Reversed and remanded.
The appellant in this case was found guilty by a jury of residential burglary. In reversing that conviction, the majority holds that appellant was entitled to an instruction on the lesser included offense of criminal trespass. I dissent primarily because there was no rational basis for the giving of such an instruction, but also because the issue was not properly preserved for appellate review.
To place the issue in perspective, I feel that it is necessary to briefly set out the evidence presented by the State, even though appellant failed to include such testimony in his abstract. The record reflects that Darrell Heller, age twenty-seven, who is mentally disabled, lived at home with his mother and father. According to Heller, on the evening of July 3, 1994, he took a bath while his parents were out of the house. He said that he had locked the front door before bathing. After finishing his bath, he discovered appellant looking through a dresser in his parents' bedroom. He also saw appellant's wife standing in the kitchen. Darrell testified that he had not previously known either appellant or his wife and that he asked them why they were in the house. He also asked them to leave and, when they paid no attention to him, he asked them to leave again. Heller said that he "escorted" them out and that he later discovered that his Super Nintendo and five games were missing, along with his radio. His father, Vernon Heller, testified that the storm door had been yanked open and that the metal frame had been bent.
A person commits residential burglary if he enters or remains unlawfully in a residential occupiable structure of another person with the purpose of committing therein any offense punishable by imprisonment. Ark.Code Ann. § 5-39-201(a) (Repl.1993). A...
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Allen v. State, CR
...in refusing to give the lesser-included instruction of criminal trespass. The court of appeals reversed and remanded. Allen v. State, 53 Ark.App. 225, 920 S.W.2d 860 (1996). The State filed a petition for review, which this court granted. Upon the grant of a petition for review following a ......