Jury Instruction on a Lesser Included Offense In Arkansas
Arkansas Code Annotated section 5-1-110(c) (Repl. 1997) provides:
(c) 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.
In Nichols v. State, 69 Ark. App. 212, 215-16, 11 S.W.3d 19, 21 (2000), we explained:
It is not error for the court to refuse or fail to instruct on the lesser offense where the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent.
In Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), the court held that when a defendant asserts that he is entirely innocent of any crime, no rational basis exists to instruct the jury on a lesser-included offense, as the only issue for the jury is whether the defendant is guilty as charged. the supreme court stated:
Doby rested his entire defense on his credibility against that of the officers. So as a practical matter, it came down to whom should the jury believe.
There would be no rational basis to find the officers lied in part in this case. Their testimony so sharply conflicted with Doby's that it would not be reasonable to expect a jury to pick and choose and come up with a finding of a lesser offense when to do so would require a finding that Doby was a liar and the officers liars in part.
If Doby had admitted possessing the drugs, it might make sense to require the charge of the lesser offense. But his defense was that he was entirely innocent of any crime: he possessed nothing. Therefore, the jury only had one question to decide, whether he was guilty as charged.