concurring. I concur with the opinion of the majority.
It was argued in conference that sentencing the appellant on both the attempted rape and burglary convictions was reversible error under Ark. Stat. Ann. § 41-105 (Repl. 1977). The majority opinion does not address that issue because our examination of the abstract and record discloses that the issue was never raised in the trial court and it was not argued in the briefs. The first suggestion of that issue was made by counsel in his rebuttal statements during oral argument. The majority follows the well established rule that a timely and appropriate objection must be made to preserve an issue on appeal. The court has also made it clear that this rule applies even to constitutional issues and has specifically applied it where a timely objection was not made to the sentences on multiple charges in Robinson v. State, 278 Ark. 516, 648 S.W.2d 444 (1983) and Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980). I would also adhere to the well established rule that we do not consider arguments which are not briefed.
The majority did not address that issue for those reasons. However, as it is discussed in a dissenting opinion I would state my view that the provisions of Ark. Stat. Ann. § 41-105 (Repl. 1977) have no application to this case. In certain circumstances that section prohibits multiple sentences where the same conduct results in more than one offense. An accused may be convicted and sentenced for only one offense arising out of the same conduct when one of the offenses is necessarily included in the other. It provides that one offense is included in the other if it must be established by proof of the same or less than all of the same elements required to establish the commission of the offense charged. The purpose of the statute is to allow a conviction of a lesser included offense when the accused is not convicted of the greater charge and to prohibit sentencing for both. Akins v. State 278 Ark. 180, 667 S.W.2d 654 (1984).
In the felony murder cases the court has not permitted a sentence for both the capital murder and the underlying felony for the reason that it is necessary to prove each and every element of the underlying felony in order to obtain the capital felony murder conviction. The underlying felonies are therefore lesser included offenses in these cases. Wilson v. State 277 Ark. 219, 640 S.W.2d 440 (1982).
The charges here are attempted rape and burglary. Neither crime necessarily requires proof of any of the elements of the other. In Hickerson v. State 282 Ark. 217, 667 S. W. 2d 654 (1984) the appellant was convicted of kidnapping, burglary and rape. Relying on §41-105 (Repl. 1977) he contended on appeal that he could not be sentenced on all three charges. Although the court found the evidence insufficient to support the conviction of burglary it rejected his primary argument in the following language:
Furthermore, it would have been possible in this case for circumstances to support a conviction for burglary if the facts had been present to support that separate crime. Conley v. State, supra. None of these crimes, rape, burglary or kidnapping is necessarily a lesser included offense of the other. All involve separate elements, and it is not necessary to prove one offense in order to prove another, which is one of the tests in applying that statute.
Burglary is defined as unlawful entry into an occupiable structure with intent to commit an offense punishable by imprisonment. Rape is generally defined as engaging in sexual intercourse or deviate sexual activity with another person by forcible compulsion. Attempted rape is defined as purposely engaging in conduct which constitutes a substantial step toward accomplishing the rape. It is not necessary to prove an unlawful entry into an occupiable structure to establish rape or attempted rape. Once the intent to rape has been formed and substantial steps to accomplish it have been taken the offense of rape or attempted rape can be committed anywhere. Since each offense requires proof of elements not required by the other a defendant can be convicted and sentenced on both offenses.
Nor can I agree that appellant’s unlawful entry was the only substantial step taken to accomplish the rape. The Commentary to Ark. Stat. Ann. § 41-701 (Repl. 1977) lists seven examples of types of conduct which, if corroborative of criminal purpose, might be held to be substantial steps. Included in this list are enticing or seeking to entice the contemplated victim of the offense to go to the place contemplated for the commission of the crime, reconnoitering the place contemplated for the offense and unlawful entry to the place in which it is contemplated the offense will be committed.
Prior to his unlawful entry the appellant had reconnoitered the place by appearing at the bathroom window and first ascertaining the intended victim’s whereabouts. After his entry he sought to entice her to leave the bathroom and come into the living room where he intended the rape to occur.
I concur.