ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION
DIVISION I

CACR03-042

September 10, 2003

JAMES B. EVERETT AN APPEAL FROM GREENE

APPELLANT COUNTY CIRCUIT COURT

[NO. 01-277C]

V. HON. DAVID N. LASER, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED

Wendell L. Griffen, Judge

This case arises from the criminal conviction of appellant, James B. Everett, of one count of aggravated robbery and one count of kidnapping, in Greene County Circuit Court. Appellant argues that there was insufficient evidence to support a guilty verdict of aggravated robbery and kidnapping. Appellant also argues that the trial court erred in denying his request for a theft-of-property jury instruction. We affirm.

According to testimony at trial, the following events transpired. On the night of February 15, 2001, John Gibson, the assistant manager of the Country Mart, was in charge of closing the store for business. Testimony revealed that Gibson was involved in a plan to fake a robbery that night in order to enable him to steal the night deposits of the store. For that purpose, the plan initially provided for a certain Shawn Epley to wait in Gibson's car that night to facilitate the scheme by acting as the robber. However, Epley persuaded appellant to substitute for him and gave appellant a mask and a gun for the job. Appellant then waited in Gibson's unlocked car on the back seat, a fact he conceded.

Gibson, in the meantime, sent home all his staff except 16-year old Russell Hunt, whom he talked into taking a ride with him to the bank to make the night deposit. Hunt reluctantly complied and entered Gibson's car with him. Hunt testified that at that point a man in the back grabbed his mouth, pointed a gun to his head, and ordered Gibson to drive. Hunt stated that the man wore a mask and that he was afraid for his life. The masked man hit Hunt against the head with the "butt of the gun." The masked man asked for the money from the store, and Hunt gave him the money bag. The masked man further directed Gibson to drive to a dark gravel road and taunted Hunt by asking how it felt to know that he was going to die that night. According to Hunt, the masked man also made crude sexual remarks directed at Hunt. Hunt stated that he did not feel free to leave when he was in the car, and he repeatedly reiterated that he was scared. Eventually, Hunt escaped by opening the door and rolling out of the car.

Gibson corroborated Hunt's version of events and stated that appellant was in the back of his car when Gibson and Hunt entered. He agreed that appellant's remarks could be perceived as threats to Hunt. Gibson also testified that appellant took money from Hunt's wallet. He explained further that appellant was to receive eight thousand dollars for his role in the theft. He also stated that Hunt was unaware of any plan according to which appellant would merely act the part of a robber.

At the end of the State's case, appellant moved for a directed verdict on both charges of aggravated robbery and kidnapping. The trial court denied the motion. Counsel for appellant then rested without further evidence and renewed his motion for directed verdict, which was again denied. Counsel for appellant then proffered AMCI 2d 3602, theft-of-property, for submission to the jury as a lesser-included offense instruction. The trial court declined that instruction, but instructed the jury on robbery, aggravated robbery, and kidnapping. The jury returned a verdict of guilty and recommended a sentence of fifteen years on aggravated robbery and twenty-five years on kidnapping. The trial court adopted this recommendation and ordered both sentences to run consecutively. Appellant now brings this appeal.

Sufficiency of the Evidence

Appellant's first point of error asserts that there was insufficient evidence for a conviction of aggravated robbery and kidnapping. A motion for a directed verdict is a challenge to the sufficiency of the evidence. Miles v. State, 350 Ark. 243, 85 S.W.3d 907 (2002). The test for such motions is whether the verdict is supported by substantial evidence, direct or circumstantial. Id. Substantial evidence is evidence of sufficient certainty and precision to compel a conclusion one way or another and pass beyond mere suspicion or conjecture. Id. On appeal, we review the evidence in the light most favorable to the appellee and consider only the evidence that supports the verdict. Id.

Under Arkansas law, a person commits aggravated robbery if he:

commits robbery as defined in § 5-12-102, and he:

(1) Is armed with a deadly weapon or represents by word or conduct that he is so armed.

Ark. Code Ann. § 5-12-103(a)(1) (Repl. 1997). Arkansas Code Annotated section 5-12-102(a) (Repl. 1997) defines robbery the following way:

A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to immediately employ physical force upon another.

Notably, no transfer of property needs to take place to complete the offense of aggravated robbery. Williams v. State, 351 Ark. 215, 91 S.W.3d 54 (2002). In cases involving aggravated robbery, the focus of proof is on the threat of harm to the victim, and the offense is complete when physical force is threatened. Id.

Concerning the aggravated robbery conviction, appellant argues that, because the robbery was supposed to be a sham robbery, there was somehow insufficient evidence for an aggravated robbery conviction. We disagree and hold that there was sufficient evidence for a conviction of aggravated robbery. In the instant case, appellant himself admitted that he was in the car with a gun and a mask. He admitted that he showed the gun to both Gibson and Hunt. He admitted that money was taken. There was testimony from both Hunt and Gibson that appellant threatened Hunt's life and that he hit Hunt with the gun. There was testimony stating that appellant took the store's night deposits from Hunt as well as Hunt's personal money from his wallet. Thus, appellant took money that was not his from a victim upon gunpoint. Therefore, we affirm the aggravated robbery conviction.

Turning now to the kidnapping conviction, we recognize that Ark. Code Ann. § 5-11-102(a) (Repl. 1997) provides the following definition:

A person commits the offense of kidnapping if, without consent, he restrains another person so as to interfere substantially with his liberty with the purpose of:

(1) Holding him for ransom or reward, or for any other act to be performed or not performed for his return or release; or

(2) Using him as a shield or hostage; or

(3) Facilitating the commission of any felony or flight thereafter; or

(4) Inflicting physical injury upon him, or of engaging in sexual intercourse, deviate sexual activity, or sexual contact with him; or

(5) Terrorizing him or another person; or

(6) Interfering with the performance of any governmental or political function.

On appeal, appellant chiefly asserts that any restraint Hunt might have suffered did not take place for any of the purposes enlisted in Ark. Code Ann. § 5-11-102(a). Again, we disagree. Upon the available record before us, we find that appellant restrained Hunt and interfered substantially with his liberty in order to facilitate the commission of a felony, as outlined in Ark. Code Ann. § 5-11-102(a)(3). Appellant was involved in a scheme that was supposed to look like a robbery. That scheme served to enable Gibson to steal money from the Country Mart. Appellant held Hunt at gunpoint, and Hunt did not have the impression that he was free to leave the car. The restraint also facilitated the commission of the aggravated robbery of Hunt. Forcing Hunt into a secluded, dark area assisted the efforts to steal the money from the store as well as to steal money from Hunt personally. Thus, we affirm the kidnapping conviction.

Denial of Proffered Jury Instruction

Appellant's second point on appeal concerns the trial court's refusal to give a proffered jury instruction, namely AMCI 2d 3602, for theft of property. Even though the State does not so argue now, we note that appellant failed to preserve this issue for appellate review. It is settled law that no party may assign as error the giving or failure to give an instruction unless he objects thereto before or at the time the instruction is given, stating distinctly the matter to which he objects and the grounds of his objection. Clowney v. Gill, 326 Ark. 253, 929 S.W.2d 720 (1996). In the present case, counsel for appellant proffered AMCI 2d 3602 on the basis that, upon the facts, the jury could find appellant guilty of theft of property instead of aggravated robbery. The trial court declined to give this instruction because it found that theft of property is not a lesser included offense of aggravated robbery and because the facts of the case did not support submission to the jury of the theft of property instruction. Crucially, counsel for appellant did not object or state reasons for objections at that time. Therefore, we decline to reach this issue as one not preserved for appellate review.1

Affirmed.

Robbins and Neal, JJ., agree.

1 Notably, even if the issue were preserved, we remind appellant that our supreme court has already declared that theft of property is not a lesser-included offense of aggravated robbery. Id. Theft of property occurs where a person knowingly takes or exercises unauthorized control over, or obtains by deception or threat, the property of another person with the purpose of depriving the owner thereof. Ark. Code Ann. § 5-36-103(a) (Repl. 1997). A person commits robbery if, with the purpose of committing a felony or misdemeanor theft or resisting apprehension immediately thereafter, he employs or threatens to employ physical force upon another. Ark. Code Ann. § 5-12-102(a) (Repl. 1997). A robbery becomes aggravated robbery if the person who commits robbery is armed with a deadly weapon or represents that he is so armed. Ark. Code Ann. § 5-12-103(a)(1) (Repl. 1997). Thus, it becomes clear that theft of property requires a transfer of property, whereas no such transfer is required to complete the offense of aggravated robbery. Arkansas Code Annotated section 5-1-110(b)(1) (Repl. 1997) provides that an offense is included in another offense as a lesser-included, if "it is established by proof of the same or less than all the elements required to establish the commission of the offense charged." Theft of property requires an element, namely transfer of property, that is not an element of aggravated robbery.