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Wallace v. State

Court of Appeals of Arkansas, Division III

December 6, 2017

BRANDON L. WALLACE APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, DIVISION [NO. 60CR-14-4097] HONORABLE LEON JOHNSON, JUDGE

          William R. Simpson, Jr., Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

          Leslie Rutledge, Att'y Gen., by: Amanda Jegley, Ass't Att'y Gen., for appellee.

          ROBERT J. GLADWIN, JUDGE.

         Appellant Brandon Wallace appeals his September 21, 2016 convictions by a Pulaski County jury on charges of kidnapping and aggravated assault on a family or household member. He was sentenced to concurrent terms of five years' imprisonment for kidnapping and three years' imprisonment for aggravated assault. He was given enhanced, consecutive sentences of one year imprisonment because the jury found that he used a firearm during the commission of the kidnapping and that the aggravated assault occurred in the presence of a child. He now challenges the trial court's denial of his proffered jury instruction that second-degree false imprisonment is a lesser-included offense of kidnapping. We affirm.

         I. Facts

         On March 11, 2016, the State filed an amended felony information against appellant alleging in relevant part that on or about November 10-11, 2014, appellant committed two felony offenses against Becky Mitchell: (1) the Class Y felony of kidnapping, as defined in Arkansas Code Annotated section 5-11-102(a)(6) (Repl. 2013); and (2) the Class D felony of aggravated assault on a family member, as defined in section 5-26-306(a)(2) (Repl. 2013). In the amended information, the State also alleged that two sentence enhancements were applicable: (1) the "employment of a firearm" enhancement set forth in section 16-90-120(a)-(b) (Supp. 2015); and (2) the "in the presence of a child" enhancement set forth in section 5-4-702(a)-(d) (Repl. 2013). On September 20, 2016, at the beginning of appellant's trial, the State again amended the information to reduce the kidnapping charge from a Class Y felony to a Class B felony. Also, at that time, the trial court granted the State's motion to dismiss a third felony charge that had been set forth in the March 11, 2016 amended felony information.

         At the conclusion of his jury trial held on September 20-21, 2016, appellant was found guilty of having committed Class B felony kidnapping and aggravated assault on a family or household member. The jury also found that appellant had employed a firearm to commit kidnapping and that appellant had committed aggravated assault on a family or household member in the presence of a child. He was sentenced pursuant to a sentencing order filed on October 12, 2016, and an amended sentencing order filed on November 10, 2016. He filed a timely notice of appeal on November 10, 2016.

         II. Standard of Review and Applicable Law

         A trial court's ruling on whether to submit a lesser-included-offense instruction will not be reversed absent an abuse of discretion. See Johnson v. State, 2017 Ark.App. 373, 523 S.W.3d 908; Webb v. State, 2012 Ark. 64. While an abuse of discretion may be manifested by an erroneous interpretation of the law, see State v. Gray, 2016 Ark. 411, 505 S.W.3d 160, in the absence of a showing that the trial court erred in its interpretation of a statute, its interpretation will be accepted as correct on appeal. Solis v. State, 371 Ark. 590, 269 S.W.3d 352 (2007).

         The determination of whether an offense is a lesser-included offense of another is governed by Arkansas Code Annotated section 5-1-110(b) (Repl. 2013):

(1) It is established by proof of the same or less than all the elements required to establish the commission of the offense charged; or
(2) It consists of an attempt to commit the offense charged or to commit an offense otherwise included within it; or
(3) 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 ...

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