dissenting. I respectfully dissent from the majority’s reversal of appellant’s conviction for rape on the basis that the trial court committed reversible error by refusing to instruct the jury on the lesser included offense of carnal abuse in the third degree, a class A misdemeanor. The record reflects that the trial court stated the following as its rationale for denying appellant’s request:
The court feels that her testimony if believed by the jury would be the offense of rape, and that the defendant and his witnesses have flatly denied that any contact, at all, occurred. And, therefore, I don’t feel that this is a proper instruction . . . This is because the evidence does not support it.
I believe the above rationale is correct, especially in view of the evidence adduced at trial.
Appellant called several witnesses to establish that no sexual activity ever occurred in the home between appellant and his daughter and to also discredit the victim’s testimony in this regard. Appellant elected to testify at trial, and he stated he had never made sexual advances of any sort toward his daughter. Since appellant’s position was that he was innocent of rape or any sexual activity, his request for the lesser included offense instruction on third degree carnal abuse was not rational. As noted in the majority’s opinion, the type of sexual activity required for third degree carnal abuse is sexual intercourse or deviate sexual activity. Accordingly, appellant’s request for an instruction on third degree carnal abuse was inconsistent with appellant’s own proof. Before discussing my reasons for this conclusion, I feel that it is necessary to state that the position I take is limited to the facts and circumstances of this particular case.
The majority states that the mere fact a defendant testifies and denies committing the alleged criminal act does not justify refusing to instruct on a lesser included offense when there is evidence providing a rational basis for acquittal on the offense charged and a conviction on a lesser included offense and cites Clark v. State, 244 Ark. 772, 427 S.W.2d 172 (1968) and Bongfeldt v. State, 6 Ark. App. 102, 639 S.W.2d 70 (1982) as authority. This question, contrary to what is stated in the majority’s opinion, has not been decided in the above quoted cases. While it is true that the appellant in Clark denied that he had ever bothered his stepdaughter in any way, that particular fact was not the basis for the supreme court’s reversal on the failure to instruct on carnal abuse. Its reversal was grounded on the fact the victim did not report the crime and the jury could possibly have found that she had consented.
In Bongfeldt v. State, supra, the appellant was charged with burglary and convicted of breaking and entering. We found merit to appellant’s assertion on appeal that the trial court committed prejudicial error in failing to instruct the jury on the lesser included offense of criminal trespass. We determined that there was evidence presented by the appellant upon which the jury might have found his entry into the building was without the criminal intent required for conviction of the larger offense. The appellant had testified at trial that he entered the building with the intent to borrow the gasoline and pay the owner for it the next morning. We noted that although it was unlikely, the jury could have believed that testimony and found that the criminal intent required for conviction of the larger offense was lacking. There is no doubt but that Bongfeldt was properly decided by this court under the law. However, the situation presented in Bongfeldt and that in the case at bar are totally different. Here, appellant testified that he was innocent of any wrongdoing. In Bongfeldt, the appellant essentially testified that he engaged in acts which constituted the lesser offense of criminal trespass. When a defendant, as here, adduces evidence that he is innocent of any offense, he is not entitled to an instruction on a lesser included offense merely because the jury might not believe the testimony of the prosecuting witness. There is simply no rational basis under these circumstances for finding him guilty of the lesser offense.
The majority has noted appellee’s reliance upon the holding in Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984), and asserts that “The evidence in Roberts is not analogous to the evidence in the case before us.” I strongly disagree with this assertion. In its discussion of this decision, the majority de-emphasized the reasoning behind the Roberts holding. The supreme court there made the following statement following its conclusion the appellant’s request for an instruction on a lesser included offense was inconsistent with appellant’s own proof. It stated that “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.” Id. at 220. The holding in Roberts, in my opinion, is decisive to the issue raised by the parties in the case at bar.
In Blair v. State, 284 Ark. 330,681 S.W.2d 374 (1984), the appellant was convicted of burglary, theft and two counts of theft by receiving. The appellant argued unsuccessfully on appeal that the trial court erred in refusing to give his requested instruction on criminal trespass. In dismissing this contention, the court noted that the state’s witnesses testified the appellant was guilty of burglary and that the appellant had testified he did not enter the structure. The court concluded that: “There is no evidence of a violation of the criminal trespass statute. A trial judge does not have to give an instruction where there is no evidence to support the giving of that instruction. Blaney v. State, 280 Ark. 253, 657 S.W.2d 531 (1983).”
In Smith v. State, 277 Ark. 403, 642 S. W.2d 299 (1982), the supreme court found no merit to the appellant’s contention that the trial court erred in failing to instruct on robbery, a lesser included offense of aggravated robbery. In so holding, the court stated that the thrust of the appellant’s argument was that the evidence was deficient or in conflict as to the appellant’s being armed. Both the victim and officer testified that the appellant was armed and the appellant had denied any involvement in or knowledge of the robbery. The court concluded there was no rational basis for the jury to find the appellant guilty of the lesser offense inasmuch as “The evidence clearly shows the only fact issue for the jury to resolve was whether the defendant was guilty of aggravated robbery as charged or was innocent.” Id. at 405.
The issue of whether a defendant is entitled to a lesser included instruction when his or her defense at trial is complete innocence or alibi seems to be one of first impression in our state if one ignores the Arkansas Supreme Court’s holdings in Roberts, Blair and Smith, supra. However, it appears that in a majority of jurisdictions which have had occasion to address this question, the reviewing courts hold that the trial court has no obligation to charge on a lesser offense. See, Kirksey v. State, 475 So.2d 646 (Ala. Crim. App. 1985) (No error where defendant denied any act between the parties had occurred); Stork v. State, 475 So.2d 622 (Ala. Crim. App. 1984) (No error where defendant denied committing the crime); State v. McNair, 141 Ariz. 475, 687 P.2d 1230 (1984) (No error where defense testimony would prove complete innocence of the lesser offense); State v. Jerousek, 121 Ariz. 420, 590 P.2d 1366 (1979) (No error where defendant’s evidence presented a guilty or innocent situation); People v. Reeves, 105 Cal. App.3d 444, 164 Cal. Rptr. 426 (1980) (No error where defendant’s defense was a flat denial and his presentation of character evidence was to the same effect); Jefferson v. U.S., 474 A.2d 147 (D.C. 1984) (No error in light of defendant’s completely exculpatory testimony); Jones v. U.S., 374 A.2d 854 (D.C. 1977) (No error where defendant’s own testimony negated essential elements of the lesser included offense and such testimony was completely exculpatory; Cohran v. State, 157 Ga. App. 551, 278 S.E.2d 133 (1981) (No error where defendant’s defense was that he never entered the burglarized premises); Scrivener v. State, 441 N.E.2d 954 (Ind. 1982) (No error where defendant asserted an alibi defense); Brown v. State, 275 Ind. 227, 416 N.E.2d 828 (1981) (No error where defendant steadfastly maintained he was in no way involved in the attack); State v. Alston, 293 N.C. 553, 238 S.E.2d 505 (1977) (No error where evidence of defendant tended to establish alibi); Hankins v. State, 602 P.2d 1052 (Okla. Crim. App. 1979) (No error where only basis for instruction on lesser offense was defendant’s own explanation which lacked credibility); State v. Barker, 642 S.W.2d 735 (Tenn. Crim. App. 1982) (No error where only evidence of a lesser included offense was created by defendant’s alibi evidence); Judge v. State, 539 S.W.2d 340 (Tenn. Crim. App. 1976) (No error where defendant testified to alibi and his defense was that he was wholly innocent); State v. Hendricks, 596 P.2d 633 (Utah 1979) (No error where defendant’s defense was totally inconsistent with his request for instruction on lesser included offense); State v. Cozza, 19 Wash. App. 623, 576 P.2d 1336 (1978) (No error where defense theory was non-participation).
On the other hand, my independent research establishes that the states of Illinois, Kansas, Michigan, Ohio and Oregon have treated this question differently and in some cases, inconsistently. In Illinois, see People v. Purrazzo, 95 Ill. App.3d 886,420 N.E.2d 461 (1981), cert. denied, 455 U.S. 948 (1982) and People v. Simpson, 57 Ill. App.3d 442, 373 N.E.2d 809 (1978); in Kansas, see State v. Werkowski, 220 Kan. 648, 556 P.2d 420 (1976); in Michigan, see People v. Bryant, 80 Mich. App. 428, 264 N.W.2d 13 (1978) and People v. Clemons, 74 Mich. App. 448, 253 N.W.2d 795 (1977); in Ohio, see State v. Solomon, 66 Ohio St.2d 214,421 N.E.2d 139 (1981), State v. Wilkins, 64 Ohio St.2d 382, 415 N.E.2d 303 (1980), State v. Gall, 65 Ohio App.2d 57, 415 N.E.2d 1008 (1980), State v. Strodes, 48 Ohio St.2d 113, 357 N.E.2d 375 (1976) and State v. Jones, 47 Ohio App.2d 8, 351 N.E.2d 798 (1975); and in Oregon, see State v. Watkins, 47 Or. App. 777, 615 P.2d 394 (1980) and State v. Thayer, 32 Or. App. 193, 573 P.2d 758 (1978). The conclusion drawn from a careful reading of the above decisions is that those jurisdictions have determined the refusal to instruct on lesser offenses under the same circumstances at issue here is not always prejudicial error and that these courts have not established a hard-and-fast rule which would require the trial court to instruct on lesser offenses when a defendant’s defense is complete innocence or alibi.
It is my firm belief that the rationale advanced by the jurisdictions of Alabama, Arizona, California, District of Columbia, Georgia, Indiana, North Carolina, Oklahoma, Tennessee, Utah and Washington is more persuasive and well-reasoned. In the case at bar the trial court was correct in not permitting the jury to consider the lesser included offense of third degree carnal abuse since appellant presented a complete defense to all substantive elements of the crime of rape and his testimony negated the essential elements of the lesser offense of third degree carnal abuse.
I also disagree with the majority’s reliance upon-the “actions and testimony” of the prosecuting witness as supplying a rational basis upon which the jury might have acquitted appellant of rape and convicted him of carnal abuse in the third degree.
The record reflects the victim’s father began fondling her when she was in the sixth grade. She stated that she first had intercourse with her father while a student in the eighth grade and this activity continued to occur about twice a week until she reported it to the- authorities. When she was a student in the seventh grade, her father told her to keep his sexual advances a secret. The victim testified that on March 10, 1984, her stepmother and grandmother went to play bingo. Appellant told his son to go to a drive-in restaurant to buy dinner for everyone. Only appellant and his daughter remained in the house. After the victim’s brother left, appellant came into his daughter’s bedroom and began to fondle her. She stated that she pretended to be asleep because she was scared. Appellant continued with his advances and his daughter said, “No.” Appellant then ordered her to remove her pants and proceeded to have intercourse with her. She stated at trial that the “rape” took place during the fifteen minute period her brother was gone and that she “resisted.” She further testified that she “did not consent to the rape,” that she “cried and told him no” and that she had resisted in the past and that it had done no good.
The record further reflects that appellant was charged with committing rape by sexual intercourse with his daughter on March 10,1984. The information further alleged that this offense occurred “on several other occasions.” Appellant filed a motion in limine whereby he sought to exclude evidence relating to the “several other occasions” referred to in the information. Appellant argued that he was only prepared to defend based on the charge of March 10, 1984, and that it would be prejudicial to allow testimony relating to other bad acts on his part. The motion was overruled.
Following the presentation of evidence at trial, the jury was instructed as follows:
The Court has admitted testimony of other offenses similar to the one charged in the Information. You will not be permitted to convict the defendant upon such testimony. Evidence of another similar offense, if you believe another has been proven, is admitted solely for the purpose of showing motive, design and particular criminal intent, habits and practices, guilty knowledge, good or bad faith, and you should consider such evidence for this purpose alone and it shall not be considered in fixing any punishment that might be imposed.
The defendant is not on trial for any offense except the alleged offense for which he is on trial.
The majority has relied on evidence, upon which the jury received a limiting instruction advising it that it was not evidence of any guilt on appellant’s part, in determining what supplied a rational basis upon which the jury might have acquitted appellant of rape and convicted him of carnal abuse in the third degree. For example, the majority refers to “one occasion when her grandmother was not at the house (and) he approached her and she stated, “I said no, and he goes why?, and I said because, I said she’s going to be back, and I don’t want to.” Also, “that he treated her like someone special; that when she responded to sex with him he was more in favor of letting her have things and have her way.”
When one views the victim’s testimony in regard to only the events of March 10,1984, it is more than clear that she testified to acts by appellant which would constitute rape by sexual intercourse. The prosecution proved appellant raped his daughter on March 10, 1984, and the evidence clearly shows the only fact issue for the jury to resolve was whether appellant was guilty of rape as charged or was innocent. The majority has apparently viewed other evidence which had no relation to March 10,1984, and concluded that the jury could have found consent on the daughter’s part. This is clearly wrong.
Reversal of appellant’s conviction of rape on the basis the trial court erred by refusing to instruct on the lesser offense of third degree carnal abuse is improper pursuant to existing case law. First, appellant’s request for this instruction is not rational and is inconsistent with his own proof. If the trier of fact had been permitted to consider the lesser offense, an unreasonable compromise would have been invited on the state’s evidence. Furthermore, there was no evidence of a violation of the third degree carnal abuse statute in view of appellant’s testimony as well as that of his witnesses. Appellant presented a complete defense to all of the substantive elements of rape and his testimony also negated the elements of the lesser offense. The trial court, therefore, was not obligated to instruct the jury on third degree carnal abuse. The majority has improperly utilized evidence, which was excluded from the jury’s consideration, in determining what provided a rational basis for the jury to acquit appellant of rape and convict him of carnal abuse in the third degree.
I would affirm the conviction.