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Cartwright v. State

Court of Appeals of Arkansas, Division III

September 21, 2016

WILLIAM JAMES CARTWRIGHT APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE CHICOT COUNTY CIRCUIT COURT [NO. CR2014-78-4] HONORABLE DON GLOVER, JUDGE

          Joseph P. Mazzanti III, for appellant.

          Leslie Rutledge, Att'y Gen., by: Brooke Jackson Gasaway, Ass't Att'y Gen., for appellee.

          LARRY D. VAUGHT, JUDGE.

         William James Cartwright is appealing his conviction by a Chicot County jury of robbery.[1] 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 affirm.

         Cartwright 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.

         Cartwright 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.

         On 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)).

         The standard of review is well settled and has been set forth as follows:

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.

         Cartwright's 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).

         We find 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 ...


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