ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

WENDELL L. GRIFFEN, JUDGE

DIVISION II

CACR00-815

October 17, 2001

CLYDE JOHNSON AN APPEAL FROM CRITTENDEN

APPELLANT COUNTY CIRCUIT COURT [CR90-181]

V. HON. DAVID BURNETT, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

This belated appeal stems from the 1991 conviction of appellant Clyde Johnson for aggravated robbery.1 Johnson received a sentence of fifty years' imprisonment. He now challenges the trial court's refusal to give a jury instruction for the lesser included offense of robbery. No rational basis existed for the court to instruct the jury on the lesser included offense. Consequently, we affirm.

On March 5, 1990, Lanette Tabor and Brenda Bailey traveled from Memphis, Tennessee to West Memphis, Arkansas to visit friends and collect rent money owed Ms.Bailey. Prior to leaving West Memphis, the two women stopped at a convenience store located on Twentieth and Broadway Streets. Once there, appellant, whom Tabor knew as "Sleepy," followed Tabor into the store and asked if she wanted to buy a rock. When Tabor declined, appellant asked to borrow a couple of dollars. Tabor told appellant that she did not have any money to spare, and appellant left the store. Once Tabor paid for her merchandise and went outside, she noticed appellant sitting in Bailey's car. When Tabor approached the car, appellant got out and began to yank at Bailey's car phone, which was mounted in the car. Tabor asked appellant what was going on and appellant replied, "I've got a gun in my pocket." He then pointed to his pocket, which had a bulge. Tabor told appellant that she was calling the police and he left. Afterwards, Tabor noticed that Bailey's radar detector was missing. Tabor gave a statement to the police and identified appellant as the perpetrator in a photographic line up.

Brenda Bailey testified that as she sat in the convenience store parking lot waiting for Tabor, appellant approached her car and told Bailey that Tabor had sent him out to ask for money. Bailey replied that if Tabor wanted appellant to have some money, appellant needed to go back into the store and get the money from Tabor. Appellant then asked Bailey if she wanted to buy some rocks, and Bailey replied no. Appellant then told Bailey that "I [will] blow your f- head off." When Bailey told appellant that he did not have a gun, appellant replied that he did. Bailey testified that appellant pulled a gun out, put it up to Bailey's head, and demanded money. Bailey again said no, and appellant walked away from the driver's side of the car. He then walked to the passenger side of the car and enteredwithout permission. Appellant again demanded money from Bailey, who again refused. He then tried, without success, to take Bailey's car phone. Appellant then took Bailey's radar detector. By this time, Tabor returned to the car. When Bailey picked up the phone and began dialing the police, appellant left. Bailey later gave a statement to the police and identified appellant.

As part of its case-in-chief, the State also presented testimony from two West Memphis law enforcement officers. Officer Eddie West testified that he investigated the robbery and identified appellant as a suspect. Officer Mike Allen testified that he interviewed appellant, who gave a statement to Allen that Allen read at trial. A key portion of the statement read, "[s]o I asked her for a dollar, then I said, give me one of those tens, she said naw, I am going to give you a dollar. I said to her that I got this thing, a little iron shooter, and pointed it at her." On cross examination, Allen stated that the term iron shooter is a street name for a small metal tube used to smoke crack cocaine.

After the State rested, appellant made a general motion for directed verdict, which the trial court denied. The defense rested and renewed its general motion for directed verdict. Again, the court denied the motion. Appellant subsequently offered four jury instructions, which were denied. Three of the instructions related to robbery, and one instruction pertained to theft of property. The court refused to submit these instructions to the jury, but instead gave the jury the instruction for aggravated robbery. After the jury retired and deliberated, it returned a verdict finding appellant guilty on aggravated robbery. Appellant was sentenced as a habitual offender and received fifty years' imprisonment in the ArkansasDepartment of Correction.

As his sole point on appeal, appellant challenges the trial court's refusal to provide the jury with an instruction on robbery because there was evidence that he did not have a gun.2

Section 5-1-110(c) (1987) of the Arkansas Code Annotated provides that the trial court is not obligated to give a lesser included offense instruction when the evidence clearly demonstrates that the accused is guilty of the greater offense or innocent. See also Nichols v. State, 69 Ark. App. 212, 11 S.W.3d 19 (2000). However, when there is any evidence, however slight, presented at trial on which the jury could have convicted an accused of the lesser included offense, a trial court commits reversible error when it refuses to give an instruction that defines the lesser included offense. See Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983).

Arkansas Code Annotated section 5-12-102(a) (1987) provides that robbery occurs when a person, with the intent of committing theft or resisting apprehension, uses or threatens to immediately use physical force upon someone. A person commits the offense of aggravated robbery when he commits robbery and is armed with a deadly weapon or represents to his victim by word or conduct that he is armed. See Ark. Code Ann. § 5-12-103 (1987). Aggravated robbery focuses on the threat of physical harm to the victim and the offense is complete once a threat of physical force with a deadly weapon occurs. SeeBirchett v. State, 294 Ark. 176, 741 S.W.2d 267 (1987).

Our case law recognizes robbery as a lesser included offense of aggravated robbery. See Lovelace v. State, 276 Ark. 463, 637 S.W.2d 548 (1982); Hill v. State, 276 Ark. 300, 634 S.W.2d 120 (1982); Savannah v. State, supra. Although robbery is recognized as a lesser included offense, a trial judge is not obligated to give an instruction on robbery unless a rational basis exists for the jury to acquit the accused of aggravated robbery and convict him of robbery. See Savannah, supra. When the facts presented are subject to more than one interpretation, the trial court should give a robbery instruction when the charge is aggravated robbery. See Nichols, supra.

Nichols v. State, supra, concerned a situation where the appellant denied all charges alleged by the State. The Nichols court reasoned that the case rested on credibility and that to find the appellant guilty of the lesser included offense of robbery, would have required the jury to find that the appellant as well as the victim lied. Because an instruction on robbery would have been inconsistent with appellant's own proof, the court held that it was not reasonable that the jury would have convicted the appellant of the lesser included offense. See Nichols, supra.

In the present case, appellant argues that the trial court was presented with evidence, albeit slight, that there was no gun or weapon at the scene. As proof he points to the statement he gave police, which did not mention a gun, as well as Detective Allen's testimony that he did not find a weapon in appellant's room when he conducted a search. Appellant places great emphasis on Detective Allen's testimony that "iron shooter" is a streetterm for a crack pipe. However, appellant's argument is fatally flawed when one considers that the offense of aggravated robbery becomes complete when there is a threat of physical force with the representation of a deadly weapon, combined with an intent to commit a theft. The State was not required to present proof that appellant actually possessed a deadly weapon. It was only required to present proof that appellant represented that he had a deadly weapon. To meet its burden, the State presented testimony from Tabor and Bailey who testified that appellant stated that he had a gun, pointed to a bulge in his pocket, and subsequently took Bailey's radar detector after unsuccessfully demanding money and attempting to steal Bailey's car phone. Bailey also testified that appellant told her he would "blow her f- head off" if she did not give him money. When she told him that he did not have a gun, he pulled a gun out, held it to her head, and demanded money. Significantly, appellant admitted in his statement to the police "I said to her that I got this thing, a little iron shooter, and pointed it at her."

Pursuant to Nichols, supra, the trial court correctly determined that it should not give the robbery instruction because it was not reasonable to expect the jury to convict appellant for robbery when to do so would have required the jury to discount the testimony of both victims as well as the statement provided by appellant. Given the testimony presented by the State that appellant illustrated with his words and conduct that he was armed, along with appellant's own statement that he pointed an iron shooter at Bailey, we hold that there was no rational basis for the trial court to give the jury a robbery instruction.

Affirmed.

Bird, J., and Hays, S.J., agree.

1 Appellant initially filed a notice of appeal on February 28, 1991. On July 10, 2000, appellant filed a pro se motion for Rule on Clerk to proceed with a belated appeal. This motion was granted on November 16, 2000.

2 In the argument section of the brief, counsel for appellant concedes that the issues of sufficiency of the evidence and ineffective assistance of counsel are not properly before this court due to failure to preserve the issues at the trial level. Counsel is correct and we do not address either argument in this opinion.