Charles Rolark, the appellant, was convicted, after a jury trial, of aggravated robbery and theft of property valued over $2500. He was sentenced to imprisonment for 50 years for aggravated robbery and ten years for theft. He raises three points of appeal. He contends the prosecution should not have been allowed to recall the victim to the witness stand during the state’s case in chief. We find no error because the court did not abuse its discretion in allowing the victim to be recalled. He also contends his sentence should not have been enhanced in accordance with the habitual offender statute because the three prior felony convictions cited were all a part of one continuing course of conduct and he was placed on probation. We agree with the trial court’s determination that the three convictions were for separate offenses, and thus no error was committed in allowing them to be used in determining the applicability of the habitual offender statute despite Rolark’s having been placed on probation. Finally, he argues the theft of property was part of his continuous course of conduct in committing the aggravated robbery, and thus he should have been convicted of only one offense. We hold that theft and aggravated robbery are separate offenses for which a defendant may be convicted even though they arise out of one incident. The conviction is affirmed.
The evidence of Rolark’s guilt was overwhelming. Testimony showed that Rolark entered the “Cuff and Collar” clothing store in Texarkana. He accosted the sales clerk with a knife and forced her into the bathroom where he straddled her and demanded her jewelry which she gave to him. She was wearing rings worth approximately $13,000. He then stabbed her nine times and cut her throat with the knife. The victim survived and identified Rolark as her assailant.
Rolark was arrested the day following the incident and confessed to the crimes. At the trial two pawn brokers testified they pawned rings for Rolark who presented his driver’s license to them as identification.
1. Recall of witness
After the victim had testified, the prosecution played for the jury a tape recording of Rolark’s statement to the police in which he said he stabbed the victim after she had called him a name which amounted to a racial slur and spat on him. The prosecution then recalled the victim to the stand over Rolark’s objection. She denied having used the racial epithet, and she denied having spat on Rolark.
Rolark’s brief acknowledges that Ark. Code Ann. § 16-43-703 (1987) gives the trial court the authority to permit the recall of a witness and that we will not reverse the judge’s decision to do so unless an abuse of discretion is shown. Holmes v. State, 257 Ark. 871, 520 S.W.2d 715 (1975); Whittaker v. State, 173 Ark. 1172, 294 S.W. 397 (1927). He contends it was an abuse of discretion to allow the victim to be recalled after she had been allowed to remain in the courtroom during the playing of the tape recorded confession. He also contends the state knew what was in the confession and could have examined the victim about it while she was on the witness stand earlier. He argues he was thus denied a fair trial and due process.
Rolark does not argue that the victim had no right to be in the courtroom during the playing of his statement. His abstract of the record shows that there was a motion, presumably made by the prosecution, to allow the victim to remain in the court, but it does not show whether the motion was granted or denied. There was no unfair prejudice in allowing the victim to be recalled after she had heard Rolark’s statement. As he says, his statement was not a secret, and she could have been asked questions about it earlier. The same contradictions would have been achieved either way.
The abstract shows that the only objection made to the prosecution recalling the victim was that it was not proper to allow “rebuttal” because the defense had not put on its case. The court correctly observed that the prosecution was not putting the victim back on the stand for the purpose of rebuttal, and allowed her to be recalled specifically to impeach the statement of the defendant. No due process argument was made to the trial court, and we will not consider even a constitutional argument for the first time on appeal. Rowe v. State, 271 Ark. 20, 607 S.W.2d 657 (1980); Shepherd v. State, 270 Ark. 457, 605 S.W.2d 414 (1980).
While the question of the admissibility of the victim’s testimony for the purpose of impeaching part of the statement of a defendant presented by the state would have been new to this court, we need not decide it here because it is not argued. Even if the testimony had been inadmissible and had been objected to on that basis, we would not reverse on the point, as it is wholly collateral to the issue of Rolark’s guilt or innocence, and the evidence of guilt was, again, overwhelming. Snell v. State, 290 Ark. 503, 721 S.W.2d 628 (1996); Novak v. State, 287 Ark. 271, 698 S.W.2d 499 (1985).
2. Prior convictions
a. Continuing conduct
The three prior convictions used to enhance Rolark’s sentence for aggravated robbery and thus sentence him to 50 years imprisonment rather than the ten to 40 years authorized for the offense, were for three instances of breaking and entering. These were vending machine break-ins, two of which occurred on October 1, and the third early on the morning of October 2,1986. Rolark argues these convictions resulted from a continuing course of conduct which should only amount to one conviction for enhancement purposes.
As the state argued to the trial court and argues in its brief here, the records of the three convictions show that they occurred in different places although they were close to each other in time. They were three separate offenses. In Tarry v. State, 289 Ark. 193, 710 S.W.2d 202 (1986), a case we reversed on another ground, we were faced with a similar argument. Although our response was obiter dictum, we regard it as dispositive of the argument here. Justice George Rose Smith, writing for the court, pointed out that the criminal code, Ark. Stat. Ann. § 41-105(1)(e) (Repl. 1977), which is now codified as Ark. Code Ann. § 5-1-110(a) (1987), provides that “when the ‘same conduct’ of the defendant may establish the commission of more than one offense, the defendant may be prosecuted for each offense.” He wrote further that:
[t]he Commentary explains that the same conduct is intended to connote the same criminal transaction. The defendant may not be convicted of more than one offense if the conduct constitutes an offense defined as a continuing course of conduct. The Commentary explains that a continuing offense is one such as nonsupport or promoting prostitution. [289 Ark. at 193, 710 S.W.2d at 203]
See also Rowe v. State, supra.
Three break-ins occurring close together in time are not continuous in the sense that nonsupport or promoting prostitution are. By contrast, each offense has a beginning and an end after a short duration, whereas nonsupport, for example, is not a single act of short duration separate from each subsequent failure to pay support. Nor is this case like Tackett v. State, 298 Ark. 20, 766 S. W.2d 410 (1989), in which we were confronted with a single act which resulted in several crimes and where we held that the definition of “habitual” should not include a single act.
We hold that breaking and entering at three separate locations constitutes three separate offenses for the purpose of showing that a defendant has been convicted of more than one but less than four felonies and thus should have his sentence enhanced in accordance with Ark. Code Ann. § 5-4-501(a) (1987).
b. Probation
Rolark also argues that, because his previous convictions resulted in his having received probation they should not be counted for enhancement purposes. He has cited no authority for this argument, and we are aware of none. We do not regard the argument as convincing. The fact that he was granted probation on the prior convictions does not lessen the fact that they were convictions, and that is the criterion of § 5-4-501 (a).
3. Aggravated robbery and theft as continuous conduct
As his final point, Rolark argues that the aggravated robbery and the theft of property in this case were parts of the same continuous course of conduct and thus he should have been convicted of no more than one offense. He contends that the impulse to steal was part of the robbery and he had no intent to commit two offenses.
Theft is not a lesser offense included in aggravated robbery. Thompson v. State, 284 Ark. 403, 682 S.W.2d 742 (1985). They are two separate offenses. Aggravated robbery was committed when Rolark used force with the purpose of committing theft. Ark. Code Ann. § 5-12-103 (1987). Theft was not committed until he took the victim’s property. Ark. Code Ann. § 5-36-106 (1987). Nor were these two offenses parts of, as explained above, a continuing course of conduct like nonsupport.
Affirmed.
Purtle, J., dissents.