FROM THE CHICOT COUNTY CIRCUIT COURT [NO. CR2014-78-4]
HONORABLE DON GLOVER, JUDGE
P. Mazzanti III, for appellant.
Rutledge, Att'y Gen., by: Brooke Jackson Gasaway,
Ass't Att'y Gen., for appellee.
D. VAUGHT, JUDGE.
James Cartwright is appealing his conviction by a Chicot
County jury of robbery. He argues that the State presented
insufficient evidence to support the conviction and that the
court erred in refusing to instruct the jury on theft as a
lesser-included offense of robbery and in admitting evidence
of out-of-state convictions in the sentencing phase. We
admits that on September 27, 2014, he entered a True Value
store in Lake Village, saw an employee place a money bag in a
cabinet in an office, went into the office, took the money
bag, and fled the store with it. Kay Hambers testified that
she was working at the True Value that day, and when she
tried to stop Cartwright from leaving with the money bag, he
shoved her out of the way. Christopher Johnson testified that
he was shopping at the True Value that morning when he
witnessed Cartwright push Hambers and flee the store with the
money bag. Johnson chased Cartwright into the parking lot and
tried to grab the bag. Johnson testified that Cartwright
swung at him but missed. Shannon Williams, another True Value
employee, testified that he chased Cartwright to his car,
reached in the driver-side window, and retrieved the money
bag off the dashboard as Cartwright began to drive away.
Linda Mims testified that she was working as the manager at
the True Value store that morning and witnessed the events
described above. Captain Bob Graham with the Lake Village
Police Department testified that, after interviewing the
witnesses, he was able to identify and apprehend Cartwright,
who admitted to trying to take the money bag but denied
pushing Hambers or attempting to hit Johnson.
moved for a directed verdict, arguing that the State had
failed to show he used or threatened to use physical force in
trying to take the money, which the court denied. The court
also denied his request to instruct the jury on theft as a
lesser-included offense to robbery. Cartwright was convicted
of robbery and fleeing. During sentencing, the court admitted
evidence of several prior out-of-state convictions but
refused to allow them to be used as the basis for a
sentencing enhancement because there was no evidence that
Cartwright had an attorney in those proceedings. The jury
sentenced Cartwright to fifteen years for robbery and five
years for fleeing and recommended that the sentences run
consecutively. The jury also recommended restitution in the
amount of $5, 100.
appeal, Cartwright argues that the court erred in denying his
motion for directed verdict because there was insufficient
evidence that he had employed or threatened to employ
physical force while attempting to steal the money.
A person commits robbery if, with the purpose of committing a
felony or misdemeanor theft or resisting apprehension
immediately after committing a felony or misdemeanor theft,
the person employs or threatens to immediately employ
physical force upon another person.
Ark. Code Ann. § 5-12-102 (Repl. 2013). The criminal
code defines "physical force" as any "bodily
impact, restraint, or confinement" or "threat of
any bodily impact, restraint, or confinement." Ark. Code
Ann. § 5-12-101(1), (2). A robbery is committed when a
person, in resisting apprehension for theft, employs physical
force or threatens the use of physical force to avoid
apprehension. McElyea v. State, 360 Ark. 229, 232,
200 S.W.3d 881, 883 (2005) (citing Jarrett v. State,
265 Ark. 662, 580 S.W.2d 460 (1979)).
standard of review is well settled and has been set forth as
We treat a motion for directed verdict as a challenge to the
sufficiency of the evidence. We have repeatedly held that in
reviewing a challenge to the sufficiency of the evidence, we
view the evidence in a light most favorable to the State and
consider only the evidence that supports the verdict. We
affirm a conviction if substantial evidence exists to support
it. Substantial evidence is that which is of sufficient force
and character that it will, with reasonable certainty, compel
a conclusion one way or the other, without resorting to
speculation or conjecture.
Sartin v. State, 2010 Ark.App. 494, at 5-6 (quoting
Gillard v. State, 372 Ark. 98, 100-01, 270 S.W.3d
836, 838 (2008) (internal citations omitted)). Here, there
was more than substantial evidence to support the verdict.
Several witnesses testified that Cartwright shoved Hambers
and swung at Johnson while trying to flee with the money bag.
We have consistently held that a shoplifter, who, after
having been discovered trying to steal merchandise, shoves or
pushes someone in order to escape, has committed robbery.
Becker v. State, 298 Ark. 438, 768 S.W.2d 527
(1989); Williams v. State, 11 Ark.App. 11, 665
S.W.2d 299 (1984); White v. State, 271 Ark. 692, 610
S.W.2d 266 (Ark. App. 1981). We affirm on this point.
second argument on appeal is that the trial court erred in
denying his request that the jury be instructed on theft as a
lesser-included offense of robbery. On appeal, we must affirm
a trial court's decision to exclude an instruction on a
lesser-included offense if there is no rational basis for
giving the instruction. Thomas v. State, 2012
Ark.App. 466, at 2, 422 S.W.3d 217, 219. We will not reverse
a trial court's decision regarding the submission of such
an instruction absent an abuse of discretion. Id. at
3, 422 S.W.3d at 219. A trial court does not abuse its
discretion in denying a proffered jury instruction on a
charge that is not a lesser-included offense. See Brown
v. State, 347 Ark. 44, 47, 60 S.W.3d 422, 424 (2001).
no merit in Cartwright's argument because theft is not a
lesser-included offense of robbery. The Arkansas Supreme
Court explicitly held that theft is not a lesser-included
offense of robbery in both Thompson v. State, 284
Ark. 403, 408, 682 S.W.2d 742, 745 (1985), and Hill v.
State, 276 Ark. 300, 302, 634 S.W.2d 120, 121 (1982). In
Thompson, the supreme court explained that
"[t]heft is the wrongful appropriation of the
victim's property while robbery is the threat of physical
harm to the victim. The offenses are of a different
nature." Thompson, 284 Ark. at 408, 682 S.W.2d
at 745. Because Thompson was decided pursuant to a
common-law rule for determining lesser-included offenses,
which was replaced by Arkansas Code Annotated section
5-1-110(b), the supreme court later retreated from
Thompson's reliance on the common-law ...