ARKANSAS COURT OF APPEALS
NOT DESIGNATED FOR PUBLICATION

DIVISION IV

CACR03-488

January 28, 2004

TIMOTHY RAMON MOORE AN APPEAL FROM PULASKI

APPELLANT COUNTY CIRCUIT COURT

[CR02-1144]

V. HON. DAVID BOGARD, JUDGE

STATE OF ARKANSAS

APPELLEE AFFIRMED AS MODIFIED

Wendell L. Griffen, Judge

Timothy Ramon Moore appeals from the judgment and commitment order entered against him in Pulaski County Circuit Court, Sixth Division. The trial judge refused to allow a jury instruction that first-degree false imprisonment is a lesser-included offense of kidnapping. The appellant now argues that the circuit court erred (1) by refusing to allow a jury instruction that first-degree false imprisonment is a lesser-included offense of kidnapping, and (2) in reciting in the judgment and commitment order that appellant received a sentence of twenty-two years' imprisonment for the aggravated robbery conviction. We affirm as modified.

On October 2, 2002, appellant was charged with three felony offenses: (1) kidnapping, (2) aggravated robbery, and (3) theft of property. His jury trial took place on October 3, 2002. After the testimony of the witnesses, appellant's counsel requested a jury instruction with first-degree false imprisonment as a lesser-included offense of kidnapping. The State objected, and the court denied the requested instruction. The jury found appellant guilty as charged. He was sentenced to fifteen years' imprisonment for kidnapping, to fifteen years' imprisonment for aggravated robbery, and five years' imprisonment for theft of property. His sentences were run consecutively. However, the judgment and commitment order denotes that the sentence for aggravated robbery conviction is twenty-two years.

First-Degree False Imprisonment as a lesser-included offense of Kidnapping

It is reversible error for a court to refuse to instruct on a lesser-included offense when there is the slightest evidence to support the instruction. Gaines v. State, __ Ark. __, 118 S.W.3d 102, 105 (2003). We will affirm the trial court's decision not to give an instruction on a lesser-included offense if there is no rational basis for giving the instruction. Id.

The three-part definition of a lesser-included offense is set forth in Ark. Code Ann. § 5-1-110 (b) (Repl. 1997). The appellant argues that first-degree false imprisonment is a lesser- included offense as a result of Ark. Code Ann. § 5-1-110(b)(3) which states the following:

A defendant may be convicted of one offense included in another offense with which he is charged. An offense is so included if it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest or a lesser kind of culpable mental state suffices to establish its commission.

Appellant contends that first-degree false imprisonment only differs from kidnapping in that first-degree false imprisonment has a lesser kind of mental state required to prove its commission. The mental state required for kidnapping is "purposely," according to Ark. Code Ann. § 5-2-202(1) (Repl. 1997). The offense of first-degree false imprisonment is defined in Ark. Code Ann. § 5-11-103(a) (Repl. 1997). First-degree false imprisonment requires a culpable mental state of "knowingly." Knowingly is a lesser mental state than purposely. McCoy v. State, 347 Ark. 913, 69 S.W.3d 430 (2002).

Although first-degree false imprisonment does have a lesser-culpable mental state than kidnapping, the mental state is not the only difference in the two offenses. False imprisonment requires proof of two more elements than kidnapping. Kidnapping only requires restraint that is without consent, while false imprisonment requires the lack of consent and restraint without lawful authority. Secondly, false imprisonment requires someone to knowingly restrain another person as to interfere substantially with his liberty in a manner that exposes that person to a substantial risk of serious physical injury. Ark. Code Ann. § 5-11-103(a) (Repl. 1997) (emphasis added). Kidnapping only requires proof that the appellant acted with the purpose of facilitating the commission of any felony or flight thereafter. The "substantial risk to serious physical injury" element may require the State to prove more serious harm to the victim than necessary on the kidnapping charge. For these reasons, we hold that the trial court properly refused to give the "lesser-included offense" jury instruction.

Incorrect Punishment on the Judgment and Commitment Order

The State concedes that the trial court erred by entering a judgment and commitment order that incorrectly sentenced appellant to twenty-two years in the Department of Correction. According to Ark. Code Ann. § 5-4-103(a) (Repl.1997), a jury shall fix the punishment when a defendant is found guilty. The jury sentenced appellant to fifteen years' imprisonment for aggravated robbery, not twenty-two years. A circuit court lacks authority to increase a sentence of imprisonment imposed by a jury. Brown v. State, 82 Ark. App. 61, 110 S.W.3d 293 (2003).

The total years of commitment on the judgment and commitment order equals the total number of commitment years given by the jury at trial. However, the term of months imposed for aggravated robbery is 264 on the judgment and commitment order, and the jury sentenced appellant to 180 months for aggravated robbery. We hold that the trial court erred in reciting in the judgment and commitment order that appellant received 264 months for aggravated robbery. Since the trial court error has nothing to do with the issue of culpability and relates only to punishment, we can correct the error in lieu of reversing and remanding the case. Roberts v. State, 324 Ark. 68, 919 S.W.2d 192 (1996). Accordingly, we modify the judgment and commitment order to sentence the appellant to 180 months for the aggravated robbery conviction.

Affirmed as modified.

Bird and Crabtree, JJ., agree.