BRANDON L. WALLACE APPELLANT
STATE OF ARKANSAS APPELLEE
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.
Rutledge, Att'y Gen., by: Amanda Jegley, Ass't
Att'y Gen., for appellee.
J. GLADWIN, JUDGE.
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.
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.
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.
Standard of Review and Applicable Law
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
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