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ARKANSAS COURT OF APPEALS DIVISION II No. CR-12-755

OPINION DELIVERED SEPTEMBER 18, 2013

IVORY LAMAR COLE APPEAL FROM THE ARKANSAS APPELLANT COUNTY CIRCUIT COURT, NORTHERN DISTRICT [NO. CR-2011-187] V. HONORABLE DAVID G. HENRY, JUDGE STATE OF ARKANSAS APPELLEE AFFIRMED

ROBERT J. GLADWIN, Chief Judge

An Arkansas County jury convicted appellant, Ivory Cole, of theft of property and

sentenced him to sixty months’ imprisonment in the Arkansas Department of Correction

(ADC). His sole argument on appeal is that the circuit court erred in failing to instruct the

jury on the lesser-included offense of attempted theft. We affirm.

On October 18, 2011, at approximately 9:00 p.m., appellant entered the main

entrance of the Wal-Mart store in Stuttgart, Arkansas. He walked through the store pushing

a shopping cart and picked up a camouflage jacket, placing it in the shopping cart. Appellant

then went to the electronics department and loaded several televisions in the cart. He made

his way to the garden center and tossed the items in the cart over the garden-center fence.

Appellant returned to the interior part of the store and loaded several other items into the

shopping cart, including four car stereos. He went back to the garden center and threw Cite as

those items over the fence as well. Appellant subsequently exited the store through the main

entrance, got into his silver Chevrolet Trailblazer, and drove around to the outside of the

garden-center area of the store where the items he had thrown over the fence had landed.

The incident was captured by Wal-Mart’s security system and was witnessed by Shan

Walker, the store’s asset-protection coordinator. Ms. Walker called the police, who arrived

shortly thereafter in a police cruiser. Officers were shining the patrol vehicle’s spotlight on

the merchandise in the graveled area outside the garden-center fence when appellant drove

around to the merchandise. When appellant saw the police car, he sped away without

loading the merchandise; the police pursued him, pulled him over, and arrested him for

driving on a suspended license. After appellant’s arrest, the items were recovered and

brought back into the store; their value exceeded $1,300. Appellant was subsequently

charged with theft of property.

During trial, the surveillance videos of appellant’s actions were played for the jury and

introduced into evidence. Defense counsel made a proffer of a jury instruction for a lesser-

included offense of attempted theft, but the circuit court did not submit them to the jury.

The jury found appellant guilty of theft of property and sentenced him to six years in the

ADC pursuant to a February 15, 2012 sentencing order. He filed a timely notice of appeal

on February 22, 2012.

An instruction on a lesser-included offense is appropriate when it is supported by even

the slightest evidence. Green v. State,

,

. Once an offense is

determined to be a lesser-included offense, the circuit court is obligated to instruct the jury

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on that offense only if there is a rational basis for a verdict acquitting the defendant of the

offense charged and convicting him of the lesser-included offense.

A circuit court’s

ruling on whether to submit a jury instruction will not be reversed absent an abuse of

discretion.

Under Arkansas Code Annotated section 5-1-110(b) (Supp. 2011), a defendant may

be convicted of one offense included in another offense with which he or she is charged.

The determination of when an offense is included in another offense depends upon whether

it meets one of the three tests set out in section 5-1-110(b). An offense is included in an

offense charged if the offense: (1) is established by proof of the same or less than all of the

elements required to establish the commission of the offense charged; (2) consists of an

attempt to commit the offense charged or to commit an offense otherwise included within

the offense charged; or (3) 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 of a lesser kind

of culpable mental state suffices to establish the offense’s commission.

Under subsection

(c), in a jury trial the court is not obligated to charge the jury with respect to an included

offense unless there is a rational basis for a decision acquitting the defendant of the offense

charged and convicting him of the included offense.

(c) (Supp.

2011).

Appellant argues that the circuit court erred when it failed to include a jury instruction

for attempted theft of property as a lesser-included offense of theft of property. He claims

that there was a rational basis for including the proffered jury instructions for attempted theft,

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and he argues that there was sufficient evidence that could have supported the charge of

attempted theft.

Conduct constituting attempt is defined as follows:

(a) A person attempts to commit an offense if he or she purposely engages in conduct that (1) Would constitute an offense if the attendant circumstances were as the person believes them to be; or (2) Constitutes a substantial step in a course of conduct intended to culminate in the commission of an offense whether or not the attendant circumstances are as the person believes them to be.

(b) When causing a particular result is an element of the offense, a person commits the offense of criminal attempt if, acting with the kind of culpable mental state otherwise required for the commission of the offense, the person purposely engages in conduct that constitutes a substantial step in a course of conduct intended or known to cause the particular result.

(c) Conduct is not a substantial step under this section unless the conduct is strongly corroborative of the person’s criminal purpose.

(a)(1)–(2) (Repl. 2006). The elements of theft of property

include:

(a) A person commits theft of property if he or she knowingly: (1) Takes or exercises unauthorized control over or makes an unauthorized transfer of an interest in the property of another person with the purpose of depriving the owner of the property; or (2) Obtains the property of another person by deception or by threat with the purpose of depriving the owner of the property.

(Supp. 2011). The “knowing” element of both attempted theft

and theft of property require the State to prove that appellant committed the act knowing

that he intended either to commit theft or to exercise unauthorized control over the

property.

; 5-36-103.

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In the current case, appellant submits that his acts establish all the elements of

attempted theft. He claims that his actions manifested a belief that he could throw the items

from his cart over the fence and then retrieve them when he left the store. Appellant went

to the back of the building where the items landed in an effort to retrieve those items, which

he claims strongly corroborates his intent to steal the property and not just control it.

Accordingly, he maintains that it was error for the circuit court not to instruct the jury

regarding attempted theft of property.

We disagree. Appellant clearly exercised unauthorized control over Wal-Mart’s

property when he threw it over the garden-center fence into the gravel area off the store’s

parking lot. The State maintains, and we agree, that appellant did so with the intent to

deprive Wal-Mart of the property by (1) removing the property from the store building in

an unorthodox manner without paying for it, (2) throwing it in a place outside the building

where customers normally do not travel, (3) leaving the store building, (4) driving off the

parking lot to the area where he threw the property, and (5) speeding away when he saw that

police had discovered the property before his arrival.

We hold that the act of theft of property was complete when appellant exercised

unauthorized control over the property with the intent to deprive its owner of the property;

he was not required also to “take” the property to complete the crime. See Bailey v. State,

,

(2002). To consider the exercise of unauthorized control to

be merely a step toward taking the property in an attempted theft ignores the obvious

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meaning of the statute and its legislative intent. See Magness v. State,

,

.

Our supreme court has applied the theft-of-property statute to similar factual situations

in a manner that supports the circuit court’s refusal of the attempted-theft instruction. See

Williams v. State,

; Jarrett v. State,

,

(1979).

The evidence clearly supported the theft-of-property charge based on the unauthorized

exercise of control over the property, and the circuit judge was not obligated to give a

lesser-included-offense instruction of attempted theft of property, as there was no rational

basis for the jury to acquit appellant of theft of property and convict him of attempting to

commit the crime.

Affirmed.

GLOVER and WHITEAKER , JJ., agree.

Warner Legal Services, by: Margo D. Warner, for appellant.

Dustin McDaniel, Att’y Gen., by: Karen Virginia Wallace, Ass’t Att’y Gen., for appellee.

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