concurring in part and dissenting in part. I must respectfully dissent. I disagree with the holding that the failure to move for a directed verdict on first-degree murder precludes consideration of the issue of sufficiency of the evidence in this case. Grillot did not move for a directed verdict on premeditation and deliberation under capital murder; rather, he moved for a directed verdict on a lack of substantial evidence of accomplice liability. The elements of accomplice liability do not differ between capital murder and first-degree murder. Therefore, the trial court had all the issues before it in the directed-verdict motion, and the issue of sufficiency of the evidence is properly before this court.
Further, I do not agree that a criminal defendant is required to anticipate what charges the State may seek to submit to the jury. A criminal defendant cannot reasonably be expected to move for a directed verdict until he or she is made aware of the charges to be submitted to the jury. Additionally, we need not discuss Grillot’s argument that the model jury instruction on capital murder erroneously states the law because the issue is moot. Also, I disagree that this court has previously addressed the issue of the nature and extent of the State’s right to request and receive jury instructions.
Directed Verdict
The majority refuses to hear Grillot’s appeal from the denial of his directed-verdict motion because although Grillot presented all necessary facts to the trial court for decision on the directed-verdict motion, he failed to include the specific words “first degree murder.” Admittedly, Grillot moved for a directed verdict “as to Count 1, Capital Murder” and was convicted of the lesser-included offense of first-degree murder. However, it is obvious from the motion that Grillot was asserting that there was no evidence of his liability as an accomplice. If he was not an accomplice to capital murder he could not be an accomplice to first-degree murder. This court traditionally has not required “magic words.” See Mayfield v. State, 293 Ark. 216, 736 S.W.2d 12 (1987). It appears that is no longer the case. To refuse to hear the sufficiency-of-the-evidence issue in this case is to exalt form over substance.
Contrary to the majority opinion, the rule that a criminal defendant must move for a directed verdict not only on the charged crime but also on lesser-included offenses is simply not applicable in this case.1 Grillot’s motion for a directed verdict properly raised the issue of sufficiency of the evidence of accomplice liability in the trial court, and the issue of sufficiency of the evidence of accomplice liability is now properly before this court. Grillot’s liability in this case was based on accomplice liability. There was never an issue of who actually committed the murder. Phillips confessed to the murder.
Grillot argued in his directed-verdict motion that there was insufficient evidence of accomplice liability to submit the issue of his liability as an accomplice to the jury. The trial court denied the motion, and Grillot now properly asks this court to determine whether the trial court erred in denying the motion.
The record is clear that Grillot’s directed-verdict motion was based on a lack of evidence to prove accomplice liability. There is no distinction between the requirements for liability as an accomplice to first-degree murder as opposed to capital murder. All the elements the trial court needed to be aware of were raised by the motion. The motion is sufficient where either the offenses or the required elements are contained in the motion. Ramaker v. State, 345 Ark. 225, 46 S.W.3d 519 (2001).
The rule that the directed-verdict motion must also address lesser-included offenses is based on a requirement that the trial court be apprised of alleged deficiencies in the case so that the directed-verdict motion may either be granted or the case reopened if necessary so the missing proof may be offered. Walker v. State, 318 Ark. 107, 883 S.W.2d 831 (1994). When the trial court ruled on Grillot’s motion for directed verdict, the sufficiency of the evidence as to the elements of accomplice liability to capital murder and the elements of accomplice liability for first-degree murder were being tested. The trial court was given an opportunity to rule on the sufficiency of the evidence as to the elements of accomplice liability. To require the trial court to rule on a motion for directed verdict as to the lesser- included offense in this case is to require a vain and useless act. This we will not do. Box v. State, 348 Ark. 116, 71 S.W.3d 552 (2002).
Where intent is at issue, moving for a directed verdict on capital murder due to a lack of evidence of premeditation and deliberation, but not moving for a directed verdict on the intent of purpose required under first-degree murder, means the trial court is never presented with the issue of whether the State presented adequate proof to the lesser intent required in first-degree murder. While the proof in a given case might not be adequate to show the premeditation and deliberation required for capital murder, it might be adequate to show purpose as required for first-degree murder. Because the trial court must be allowed to consider lower intent in lesser-included offenses, this court has required that a directed verdict motion also speak to include lesser-included offenses. Walker, supra.
Under the facts of this case, however, the trial court was presented with all the issues it could decide on the directed-verdict motion on accomplice liability, and the issue of sufficiency of the evidence is properly before this court. Grillot was charged with capital murder as an accomplice and tried his case on the theory that he was not involved in the murder in any way. He alleged a lack of evidence of intent of accomplice liability. Intent with respect to the murder was not relevant to his motion based on accomplice liability. One is an accomplice to an offense committed by another if one “with the purpose of promoting or facilitating the commission of an offense” commits one of the enumerated acts such as aiding or encouraging. Ark. Code Ann. § 5-2-403 (Repl. 1997). Grillot either acted with purpose to promote and facilitate Will’s murder by Phillips, or he was not an accomplice. In this case, there was no distinction between capital murder and first-degree murder for the court to consider even if Grillot had included first-degree murder in his directed-verdict motion.
It is also curious that Grillot is now being penalized for not moving for a directed verdict on a lesser-included offense before the triál court even decided whether the instruction was applicable. Grillot would have been refused had he later sought an instruction on first-degree murder because it was contrary to Grillot’s theory of the case that he was not an accomplice. Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986).
. I must also note that there is something profoundly disquieting about a rule that requires a criminal defendant to “anticipate” the issues that may be presented to the jury as is currently required on directed-verdict motions. See Brown v. State, 347 Ark. 308, 65 S.W.3d 394 (2001). Naturally, Grillot was not specifically aware of what instructions would be submitted to the jury until the trial court made the decision on instructions after the close of the evidence. The renewal of the motion for directed verdict must occur before the jury is charged. Cathey v. State, 351 Ark. 464, 95 S.W.3d 753 (2003); Robinson v. State, 348 Ark. 280, 72 S.W.3d 827 (2002); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998); Rankin v. State, 329 Ark. 379, 948 S.W.2d 397 (1997); Webb v. State, 326 Ark. 878, 935 S.W.2d 250 (1996); Claiborne v. State, 319 Ark. 602, 892 S.W.2d 511 (1995); Marshall v. State, 316 Ark. 753, 875 S.W.2d 814 (1994). Walker, and its progeny appear to require that the criminal defendant guess correctly what jury instructions may later be given. Aside from not making much sense, this requirement is in direct conflict with Marshall, supra, and the cases that follow that decision, which require that the directed-verdict motion be brought before the jury is charged. These cases should be clarified. The Marshall line of cases appears to state the law correctly with respect to when the directed-verdict motion must be made, and the Walker line of cases does not.
The bottom line is that this court has refused to hear Grillot’s appeal based on a technicality that has nothing to do with the administration of justice. The rule that a criminal defendant must move for a directed verdict on lesser-included offenses is not being used in refusing to hear Grillot’s appeal because Grillot waived his right to the appeal, or because he failed to bring all the issues before the trial court, but rather, today we hide behind a technicality to avoid doing our job, to avoid reaching the issue, and to avoid giving Grillot the appellate review that our rules, the case law, and common sense declare that he should receive.
Accomplice Liability
The basis of Grillot’s criminal liability is unclear in the majority opinion. It appears that Grillot may be held liable for the murder of Will both on the basis of accomplice as well as direct criminal liability. Only accomplice liability was alleged. The majority states, “Here the act of murder was conceded, and the jury was required to decide whether Grillot acted purposely.” It is not clear whether the “purpose” required here by the majority is “purpose” with respect to commission of the murder or “purpose” with respect to facilitating and promoting the murder under accomplice liability. First-degree murder requires purposeful intent, as does accomplice liability.
The jury was instructed that to sustain the charge of first-degree murder, “the State must prove. . .That with the purpose of causing the death of William Jackson, ERIC Z. GRILLOT. . .[as] an accomplice caused the death of William Jackson.” In this case, for Grillot to be held Hable for first-degree murder, the jury had to find that Phillips acted with the purpose of causing the death of William Jackson. There was never an issue of who killed Will. Phillips confessed to the murder, and Grillot’s alleged liability for the murder was based on his status as an accomplice.
A person may commit an offense by his own conduct or by that of another person. Ark. Code Ann. § 5-2-401 (Repl. 1997). If criminal liability arises from the conduct of another then liability is based on accomplice liability. Ark. Code Ann. § 5-2-404— 403. There is no distinction between the criminal liability of the perpetrator and the accomplice. Riggins v. State, 317 Ark. 636, 882 S.W.2d 664 (1994). When two persons assist one another in the commission of a crime, each is an accomplice and criminally liable for the conduct of both. Davis v. State, 350 Ark. 22, 86 S.W.3d 872 (2002). A participant cannot disclaim responsibility because he or she did not personally take part in every act that went to make up the crime as a whole. Davis, supra; Parker v. State, 265 Ark. 315, 578 S.W.2d 206 (1979). If Grillot is liable for the murder as an accomplice, he is liable for the murder committed by Phillips. The jury’s decision on Phillips’s intent in killing Will would determine what degree of murder Grillot would be held liable for as an accomplice.
Capital Murder Instruction
As the majority notes, Grillot argues that the model jury instruction erroneously states the law. However, as the majority also notes, GriEot was acquitted of capital murder. Therefore, a decision of this court with respect to the model jury instruction on capital murder would have no impact on GriEot. The issue is not one of prejudice. Rather, the acquittal on capital murder renders the issue moot. In Arkansas, an issue becomes moot when any judgment rendered would have no practical legal effect upon a then existing legal controversy. Bohanan v. State, 336 Ark. 367, 985 S.W.2d 708 (1999). Because the issue is moot, it need not be addressed, and therefore, the discussion of harmless error is unnecessary and confusing.
Jury Instructions on Lesser-included Offenses
This case includes the issue of whether the trial court erred in instructing the jury on the lesser-included offense when GriEot argued that he had no involvement in the murder. This court has never answered the question of whether the trial court is obligated under Ark. Code Ann. § 5-1-110 (Repl. 1997), to instruct on lesser-included offenses when the defendant does not want the instruction. See State v. Jones, 321 Ark. 451, 903 S.W.2d 170 (1995). The dissent in State v. McCormack, 343 Ark. 285, 34 S.W.3d 735 (2000), also notes that the issue has never been addressed by this court. Although the issue has not been addressed in the past because it was raised by the State, and the appeal was declined under Ark. R. App. P. — Crim. 3, the issue is now raised by a criminal defendant and should be addressed by the court. The majority has discussed the issue as if this were an appeal by a criminal defendant who requested, but was denied a lesser-included instruction. That is not the case. Here, the issue involves an instruction requested by the State.
The majority cites Britt v. State, 344 Ark. 13, 38 S.W.3d 363 (2001), for the proposition that a lesser-included offense instruction is appropriate when it is supported by even the slightest evidence. Britt, supra, is not on point. The slightest evidence analysis in Britt refers to a request for an instruction by a criminal defendant. A criminal defendant is entitled to an instruction whenever the slightest evidence exists to support it. Whether the State is likewise entitled to an instruction when the slightest evidence supports it is a question that has not been answered by this court.
Doby, supra, also cited by the majority, involves a request by a criminal defendant for an instruction. In Doby, this court noted that Doby, in denying any involvement in the crimes, was taking an all or nothing approach in his case, and therefore, there was no rational basis for instructing the jury on a lesser-included offense. Similarly, in Roberts v. State, 281 Ark. 218, 663 S.W.2d 178 (1984), this court held that where the appellant denied any theft whatever, his request for an instruction on the lesser-included offense of theft by receiving was not rational, and the trial court committed no error in refusing to instruct the jury on the lesser-included offense. In Brown v. State, 321 Ark. 413, 903 S.W.2d 160 (1995), the case involved unlawful delivery of cocaine. In Brown, the appellant’s proof established that she was elsewhere and innocent of participating in the cocaine transaction. The court held that it defies common sense to give the jury the lesser-included instruction on possession of cocaine that she requested. The court stated: “In other words, if Brown was not present when the drug sale occurred, she logically could not be present and participate in a lesser offense. Such a proffered instruction could do nothing but confuse a jury. Thus, we hold the trial court was correct in refusing it.” Brown, 321 Ark. at 416. In another case where the charge and proof by the State were for the actual delivery of marijuana, there was no rational basis for instruction on the lesser-included offense of possession requested by the appellant. Whitener v. State, 311 Ark. 377, 843 S.W.2d 853 (1992).
Section 5-1-110 provides that the trial court is not obligated to instruct on a lesser-included offense unless there is a rational basis for concluding that the criminal defendant might be acquitted of the crime charged and convicted of the lesser-included offense. The cases cited above arise from requests by criminal defendants for instructions on lesser-included offenses. This court must address the issue of whether the State is entitled to an instruction when there is a rational basis for doing so. The majority has not provided this analysis or answered the question posed by this issue. See Jones, supra; MacCormack, supra.
Based on the foregoing, I respectfully dissent.
Thornton, J., joins. Corbin, J., not participating.The majority misses the point of this dissent in stating that I assert there is no distinction between capital murder and first-degree murder in this case. That only partially characterizes my dissent. The majority fails to recognize that the elements of accomplice liability are the same whether the charge is capital murder or first-degree murder, and therefore, the trial court in deciding the issue of accomplice liability as to one charge necessarily decided the issue as to the other. Thus, the court is requiring Grillot to parrot magic words to no purpose, and putting form over substance.