2013 Ark. App. 492
Ark. Ct. App.2013Background
- On Oct. 18, 2011, Ivory Cole placed store merchandise (jackets, TVs, car stereos) into a shopping cart at Wal-Mart, threw items over the garden-center fence into a gravel area, then exited the store.
- Cole drove his vehicle to the outdoor area where the thrown items landed. Wal‑Mart security and police observed the events on surveillance video; officers shone a spotlight on the recovered merchandise.
- When Cole returned by vehicle and saw the police cruiser, he sped away; police pursued, stopped him, and arrested him for driving on a suspended license. The recovered merchandise value exceeded $1,300.
- Cole was charged with and convicted of theft of property; he appealed solely arguing the trial court erred by refusing to instruct the jury on attempted theft as a lesser‑included offense.
- The trial court declined the attempted‑theft instruction; the Arkansas Court of Appeals affirmed, holding Cole’s exercise of unauthorized control completed the theft.
Issues
| Issue | Cole's Argument | State's Argument | Held |
|---|---|---|---|
| Whether attempted theft is a lesser‑included offense of theft such that an instruction was required | Cole: Evidence supported only attempted theft or at least provided a rational basis to acquit of theft and convict of attempt (he intended to retrieve items after throwing them over the fence) | State: Cole’s acts (throwing items over the fence, leaving, returning, then fleeing when police appeared) constituted completed theft by unauthorized control with intent to deprive | Court: No instruction required; evidence supported completed theft and no rational basis to acquit of theft and convict of attempt |
Key Cases Cited
- Bailey v. State, 348 Ark. 524, 74 S.W.3d 622 (Ark. 2002) (exercise of unauthorized control can complete theft without physical removal)
- Magness v. State, 386 S.W.3d 390 (Ark. 2012) (statutory interpretation and legislative intent regarding theft and attempts)
- Green v. State, 386 S.W.3d 413 (Ark. 2012) (standard for when a lesser‑included offense instruction is warranted)
- Jarrett v. State, 265 Ark. 662, 580 S.W.2d 460 (Ark. 1979) (applying theft statute to similar factual scenarios)