ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN MAUZY PITTMAN, JUDGE

DIVISION III

LAMONT ANTHONY WASHINGTON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR00-1206

June 6, 2001

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION

[NO. CR 1999-4455]

HON. JOHN B. PLEGGE,

CIRCUIT JUDGE

AFFIRMED

The appellant in this criminal case was charged with aggravated robbery, a violation of Ark. Code Ann. § 5-12-103 (Repl. 1997). After a jury trial, he was convicted of that offense and sentenced to eighteen years' imprisonment. From that decision, comes this appeal.

For reversal, appellant contends that the trial court erred in refusing to submit to the jury his proffered instruction on the lesser-included offense of robbery. We find no error, and we affirm.

The victim testified that he had known appellant since childhood. The victim stated that he was walking down the street talking with appellant when appellant jumped behind him, put his arm around the victim's neck, and demanded the victim's jewelry and money.

Although the victim was not facing appellant at the time and did not actually see a weapon, the victim stated positively that he felt a gun pressed into his side during the robbery. Appellant testified and denied having any connection with the robbery. Appellant proffered a jury instruction on the lesser-included offense of robbery, but this was denied by the trial court.

If there is any rational basis upon which the jury could have found the accused guilty of a lesser crime, it is reversible error to refuse to give a correct instruction on that lesser crime. Martin v. State, 46 Ark. App. 276, 879 S.W.2d 470 (1994). However, the instruction proffered by appellant was not correct. The applicable model instruction, AMCI 2d 1202, states that, to sustain a charge of robbery, the State must prove beyond a reasonable doubt that with the purpose of committing a theft or hindering apprehension immediately thereafter, the defendant either employed or threatened to immediately employ physical force on another. The instruction proffered by appellant omitted the word "employed" and stated only that the State was required to prove that appellant "threatened to immediately employ physical force upon another." This was an incorrect instruction, especially in light of the evidence in the present case, where there was evidence that appellant actually employed physical force during the robbery, but no evidence that he first made any threat to immediately employ physical force upon the victim. It is not error for the trial court to refuse to give an incorrect instruction. See Orsini v. State, 281 Ark. 348, 665 S.W.2d 245 (1984); Davis v. Arkansas State Highway Commission, 290 Ark. 358, 719 S.W.2d 694 (1986).

Furthermore, we would find no error even had a proper instruction been proffered. Appellant argues that, because the victim conceded that he never saw a gun, the jury reasonably could have found him to be guilty of simple robbery. We do not agree. The victim testified positively that he felt a gun being thrust into his side, and we think that there was no rational basis for the jury to find that appellant did not, at least, represent by his conduct that he was so armed. See Ark. Code Ann. § 5-12-103 (Repl. 1997) (a person commits aggravated robbery if he commits robbery as defined in § 5-12-102, and he is armed with a deadly weapon or represents by word or conduct that he is so armed).

Affirmed.

Bird and Neal, JJ., agree.