                                  Cite as 2016 Ark. App. 425


                     ARKANSAS COURT OF APPEALS
                                        DIVISION III
                                        No. CR-15-1059

                                                    Opinion Delivered   September 21, 2016

WILLIAM JAMES CARTWRIGHT                            APPEAL FROM THE CHICOT
                     APPELLANT                      COUNTY CIRCUIT COURT
                                                    [NO. CR2014-78-4]
V.
                                                    HONORABLE DON GLOVER,
                                                    JUDGE
STATE OF ARKANSAS
                                  APPELLEE          AFFIRMED


                                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




          1 Cartwright
                    was also convicted of fleeing from law enforcement but has not challenged
that conviction on appeal.
                                 Cite as 2016 Ark. App. 425

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.


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       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.



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       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 test. McCoy v. State, 347 Ark. 913, 921, 69 S.W.3d 430,

435 (2002), opinion supplemented on denial of reh’g, 348 Ark. 239, 74 S.W.3d 599 (2002). Under the

statute, an offense is a lesser-included offense if it

       (1) Is established by proof of the same or less than all of the elements required to
           establish the commission of the offense charged;



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       (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 or a lesser kind of culpable
           mental state suffices to establish the offense’s commission.

Ark. Code. Ann. § 5-1-110(b). Although we have found no recent cases addressing whether

theft is a lesser-included offense of robbery, Arkansas courts have repeatedly held that theft is

not a lesser-included offense of aggravated robbery based on much of the same reasoning

discussed in Thompson. See Brown v. State, 347 Ark. 44, 47, 60 S.W.3d 422, 424 (2001); Hill, 276

Ark. at 302, 634 S.W.2d at 121.

       Accordingly, we hold that theft is not a lesser-included offense of robbery pursuant to

Arkansas Code Annotated section 5-1-110(b). The wrongful appropriation of the victim’s

property is an essential element of theft, while robbery can be committed without actually

taking the property of another, since robbery is defined as employing or threatening to employ

physical force upon another with the purpose of committing a felony or misdemeanor theft

or resisting apprehension immediately thereafter. Robinson v. State, 303 Ark. 351, 354, 797

S.W.2d 425, 426 (1990); Ark. Code Ann. § 5-36-103(a)(1); Ark. Code Ann. § 5-12-102(a).

Theft, therefore, cannot be proved by less than all the elements required to establish robbery;

it requires the additional element of exercising control over the property of another. Theft is

also not merely an attempt to commit robbery and does not differ from robbery merely by

degree. The offenses are of a different nature, as noted in Thompson. We affirm on this point.

       Cartwright’s final argument on appeal is that the trial court erred during the sentencing

phase by admitting evidence of his previous out-of-state convictions where they were not

accompanied by any assurance that he had been represented by counsel in those proceedings.
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We need not reach the merits of this argument because Cartwright cannot demonstrate

prejudice, even if admission of the evidence was in error. The jury sentenced Cartwright to

fifteen years’ imprisonment for robbery, which is a Class B felony and carries a potential

maximum sentence of twenty years’ imprisonment. Similarly, the jury sentenced Cartwright to

five years’ imprisonment for fleeing, which is a Class D felony and carries a potential maximum

sentence of six years’ imprisonment. Because Cartwright received less than the statutory

maximum sentence on each charge, he cannot show prejudice. Nelson v. State, 2015 Ark. App.

697, at 7, 477 S.W.3d 569, 573; Gillean v. State, 2015 Ark. App. 698, at 28, 478 S.W.3d 255, 272.

       Affirmed.

       HIXSON and BROWN, JJ., agree.

       Joseph P. Mazzanti III, for appellant.

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




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