ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

JOHN F. STROUD, JR., CHIEF JUDGE

DIVISION I

SHELDON RADRICE LAMB

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR 00-1263

October 10, 2001

APPEAL FROM THE PULASKI

COUNTY CIRCUIT COURT,

FOURTH DIVISION [CR 99-2754]

HONORABLE JOHN W.

LANGSTON, CIRCUIT JUDGE

AFFIRMED

Appellant, Sheldon Radrice Lamb, was tried by a jury and found guilty of the offenses of aggravated robbery and theft of property. His sole point of appeal is that the trial court erred in refusing to instruct the jury on the lesser-included offense of robbery. We affirm.

Ms. Annette Juniel testified that on May 1, 1999, she drove alone to a liquor store near her grandfather's house. Her sister, Tashia Washington, and her cousin, Tamela Washington, were already inside the liquor store when she arrived at approximately 9:00 p.m. She parked in the parking lot, which is located at the side of the store by the drive-through window. There were lights in the parking lot. She parked one or two parking spots away from where her cousin had parked and entered the store. She was there less than five minutes, and she and her cousin and sister left the store together. She got in her car, and

they got in their car. Annette stated that she was looking toward her passenger side, trying to find her keys, and that when she turned she saw appellant "right next to me at my window with a gun." The gun was in his hand, and it was pointed at her head. She stated that he told her, "Give me all the money you got, or I'm going to shoot you." She stated that she gave him $140 to $160. She also stated that during her encounter with appellant, she was facing him and away from her sister and cousin's car, but that her sister and cousin were talking to her, asking "Girl, what he doing to you?" Annette stated that they "heard everything and seen everything." She stated that after she gave him the money, he ran back in the alley behind the liquor store. She saw another person back there, and they ran off together. She then told her sister and cousin that he had robbed her.

On cross-examination, she stated that appellant was not yelling, "but he was talking loud enough so that my sister and them can hear him . . . ." She did not yell or scream. She stated that she put her hands up. She stated that her sister and cousin never left their car; they were just sitting there looking.

Tamela Washington testified that she drove to the liquor store with her cousin, Tashia, on May 1, 1999; that they and Annette left the liquor store together to return to their cars to leave; that she saw somebody run over to Annette's car; and that she did not know what was going on because at first she and Tashia were just getting into their car and talking. When she looked over and saw a guy trying to get into Annette's car, she said to Tashia, "Well, it look like this boy trying to rob this girl." And she said Tashia replied, "It do, don't it." Tamela asked Annette what was going on three times, but Annette never said anything. She said she saw "his hand or something was pointing, but I never thought anything about it because I thought maybe it was somebody that she knew. I thought it might be a friend of hers chatting with her." She stated that she did not see him running to Annette's car; he was already there when she turned to the side to look; she said she was maybe ten or fifteen feet away; and that she got a good look at the man, who she identified as appellant. She stated that she did not "know if it was a gun or what it was, but I know his hand was shaped as if he had something in his hand." She could not see what was in his hand. Tamela stated that Annette drove off real fast and Tamela followed her to Tamela's house, where Annette was already telling Tamela's mother that she had been robbed.

On cross-examination, Tamela stated that she saw appellant leaning over Annette, but she did not know what he was doing. He was about eight to ten feet away. She saw his hand up there, "but I can't say it was a weapon." She could not hear what he was saying to Annette.

On redirect examination, she stated that she told Tashia, "Something's going on over there, maybe she's being robbed." She said she could not hear the words, just by the motions and looks of things she could see him leaning in, and she could see his hand up.

Tashia Washington's testimony was similar to that of Tamela's. She stated that after she got in her own car, she looked over at her sister's car and saw a man at her sister's door; that he was close up to her; and that she "didn't see a gun or nothing like that, but he was close up on her."

On cross-examination, she stated that she never saw a gun, and that she couldn't hear him saying anything to her. She did not see her sister put her hands up, and she did not see her sister hand him anything.

Defense counsel called two witnesses, Dorothy Perkins and appellant. Ms. Perkins testified that appellant was at her house on May 1, 1999, and that he was upstairs with her son playing a video game. She said that he left her house at about 10 p.m. or a little after because that is her curfew, and she locks up her house at that time. He was in her house from 6:30 or 7:00 p.m. until she let him out at 10 p.m. She did not see him with a gun or anything like that.

Appellant testified that he did not rob Ms. Juniel; that he did not have a gun that day; and that he was probably at Ms. Perkins's house.

Appellant contends that there was enough ambiguity in the testimony of the State's three witnesses regarding whether or not the man who approached Annette had a gun as to provide the amount of evidence necessary to require an instruction on the lesser-included offense of robbery.

Arkansas Code Annotated section 5-1-110(c) (Repl. 1997), provides:

Chapman v. State, 343 Ark. 643, 38 S.W.3d 305 (2001), is one of the most recent supreme court cases that addresses the issue presented in this appeal. In it, the court explains:

(Emphasis added.) There were no dissenting opinions.

Appellant attempts to undermine the precedential value of Chapman, supra, by arguing that the court in Chapman cites the case of Brown v. State, 321 Ark. 413, 903 S.W.2d 160 (1995), for a proposition that Brown actually only partially supports because of a concurring opinion by Justice Dudley and three dissents. The problem with appellant's argument, however, is that even if we had the power to do so, we would be hard-pressed to "clean-up" any anomalies raised by the supreme court in Brown, considering the clear holdings of Chapman and other subsequent cases that support the trial court's refusal to allow the instruction.

Chapman, supra, and the cases cited therein, make it clear that the trial court did not err in the instant case by refusing the lesser-included instruction of robbery. Appellant's defense was that he did not do the deed, and he presented an alibi witness to testify that he was not at the liquor store at the time of the robbery. Consequently, there was no rationalbasis to instruct the jury on robbery because the jury needed only to determine whether the defendant was guilty of the crime charged. We, therefore, need not address appellant's argument as to whether or not there was enough ambiguity in the testimony regarding the use of a gun by the appellant to require an instruction on the lesser-included offense of robbery.

Affirmed.

Hart and Jennings, JJ., agree.