Roberts v. State , 281 Ark. 218 ( 1984 )

Richard B. Adkisson, Chief Justice.

A Craighead County jury found appellant, Harold Gene Roberts, guilty of burglary and theft of property and fixed his punishment at the maximum term of twenty years for each offense. The trial court ordered the sentences to run consecutively. On appeal appellant contends the trial court erred in refusing to instruct the jury on the offense of theft by receiving, arguing that theft by receiving is a lesser included offense of theft of property. Appellant also contends the sentence was excessive.

Ark. Stat. Ann. § 41-2202 (Repl. 1977) consolidates the theft offenses, providing: “Conduct denominated theft in this Chapter [§§ 41-2201 — 41-2208] constitutes a single offense embracing the separate offenses heretofore known as larceny, embezzlement, false pretense, extortion, blackmail, fraudulent conversion, receiving stolen property, and other similar offenses.”

Even so, we agree with the trial court’s rationale that, under the facts of this case, the instruction of theft by receiving was not justified. Ark. Stat. Ann. § 41-105(3) (Repl. 1977) provides: “The court shall not be obligated to charge the jury with respect to an included offense unless there is a rational basis for a verdict acquitting the defendant of the offense charged and convicting him of the included offense.” See also Lovelace v. State, 276Ark. 463, 637 S.W.2d 548 (1982); Lewis v. State, 267 Ark. 933, 591 S.W.2d 687 (Ark. Ct. App. 1980).

The evidence established that scrapes and pry marks appeared on only one storm window, apparently the point of entry of the home. Appellant’s fingerprints appeared on the same storm window. Further testimony established that an earring worn in appellant’s ear was identical to one of a distinctive matched pair kept with the other stolen j ewelry. The mate was not stolen. Appellant’s request for an instruction on the offense of theft by receiving was inconsistent with appellant’s own proof. The record reflects that appellant called three alibi witnesses to establish he had committed no theft and that he had been in possession of the matching earring for several years. Since appellant’s position was that he was innocent of any theft, his request for the lesser-included offense of theft by receiving was not rational. Under the facts of this case, we conclude the trial court was not obligated to charge the jury with respect to the lesser offense.

As to appellant’s contention that the sentence was excessive, this court has previously held that we will not reduce or compare sentences which are imposed within statutory limits. Kaestel v. State, 274 Ark. 550, 554-55, 626 S.W.2d 940, 943 (1982). It was within the trial court’s discretion to impose the sentences consecutively. Swaite v. State, 272 Ark. 128, 136-37, 612 S.W.2d 307, 311 (1981). The cumulative effect of consecutive sentences does not make punishment cruel and unusual. Thompson v. State, 280 Ark. 265, 270, 658 S.W.2d 350 (1983). Accordingly, we conclude this is without merit.

Affirmed.

Purtle and Hollingsworth, JJ., dissent.