concurring in part; dissenting in part. I agree with the majority that the trial court committed no error in denying appellant’s motions for directed verdicts, in refusing to declare two witnesses as accomplices and in admitting their testimony, and in refusing to instruct the jury on felony manslaughter. However, I agree with appellant’s argument that the trial court erred in failing to give a jury instruction for the lesser-included offense of robbery. Therefore, I concur with the majority in affirming appellant’s convictions as an accomplice to first-degree murder and misdemeanor theft of property, but I would reverse and remand his conviction for aggravated robbery.
The majority holds that because appellant completely denied any involvement in the crime, he was not entitled to a lesser-included instruction on robbery. I disagree. Stated affirmatively, this rationale would require a defendant to confess to criminal involvement in order to be entitled to a lesser-included offense instruction. Surely, such is not the law, and should not be the law if it is.
Appellant’s argument is supported by Waggle v. State, 50 Ark. App. 198, 901 S.W.2d 862 (1995). In that case the appellant was convicted as an accomplice of aggravated robbery after she participated with her boyfriend in robbing a convenience store. Although the appellant denied assisting with the robbery, we reversed the trial court and held that there was a rational basis for a robbery instruction. We stated:
Ms. Waggle denied having any knowledge that her boyfriend was going to rob the convenience store, and further stated that she was unaware that he possessed a gun. The trier of fact has the right to resolve inconsistencies in the testimony of a witness and may believe or disbelieve any portion of that testimony. See Oller v. Andrews, 233 Ark. 1017, 350 S.W.2d 167 (1961). In the case at bar, the jury was entided to believe Ms. Waggle’s assertion that she did not know her boyfriend was carrying a gun, while disbelieving her claim that she did not assist in the commission of the robbery. Therefore, the trial court erred in refusing to give an instruction on robbery.
Waggle v. State, 50 Ark. App. at 202, 901 S.W.2d at 864. In the case at bar, there was no evidence that appellant ever saw a gun or knew his brother intended to use one in committing the crime. Therefore, there was a rational basis from which the jury could have concluded that he committed only robbery.
The majority distinguishes this case from Waggle v. State, supra, because, unlike the defendant in that case, appellant here denied any participation in the robbery. I do not agree that such a distinction exists because, while the appellant in each case gave testimony from which a jury could infer criminal activity, neither admitted to any crime. As the majority opinion indicates, while the appellant in Waggle v. State, supra, admitted to entering the convenience store to count customers, she maintained in her testimony that she did not know why her boyfriend had asked her to do this. In the instant case, appellant admitted some involvement in that he admonished others to withhold information about the robbery and was not truthful when questioned by the police, but he, too, denied any willing participation in the robbery.
In Brown v. State, 321 Ark. 413, 903 S.W.2d 160 (1995), our supreme court held that it is not error to refuse or fail to instruct on the lower offense where the evidence clearly shows that the defendant is either guilty of the greater offense charged or innocent. Such was the case in Vickers v. State, 313 Ark. 64, 852 S.W.2d 787 (1993), and Martin v. State, 46 Ark. App. 276, 879 S.W.2d 470 (1994), cited by the majority. In each of those cases the appellant was convicted as a principal of first-degree murder, each appellant completely denied committing the murder, and there was no evidence to support the commission of a lesser crime. In Vickers v. State, supra, and Martin v. State, supra, it was an “all or nothing situation,” so there was no rational basis to give the proferred instructions on lesser homicide offenses.
The case at hand is far from an “all or nothing” situation as regards appellant’s aggravated robbery conviction. Not only was there a lack of evidence that appellant knew his brother was armed prior to the robbery, there was affirmative testimony that he did not know. Rodney Barnes indicated that, after appellant told Keyono the back door was open, appellant went back in the restaurant and remained there until after the robbery was committed. Rodney further testified that appellant could not have seen the gun because it was retrieved from the trunk after appellant had reentered the restaurant.
An instruction on a lesser-included offense should be given when the instruction is supported by even the slightest evidence, but we will affirm a trial court’s decision to exclude an instruction on a lesser-included offense if there is no rational basis for giving the instruction. Ellis v. State, 345 Ark. 415, 47 S.W.3d 259 (2001). In this case, there was more than the “slightest evidence” to support a finding that appellant was an accomplice to robbery, but not to aggravated robbery. The jury alone determines credibility of witnesses, apportions weight to be given to evidence, and resolves any questions of conflicting testimony and inconsistent evidence. Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998). In this case there was a rational basis for giving the robbery instruction because the testimony of Rodney Barnes, if believed by the jury, demonstrated that while appellant may have conspired in the robbery, he was unaware that his brother was armed with a deadly weapon.
I am not unmindful of our supreme court’s opinion in Doby v. State, 290 Ark. 408, 720 S.W.2d 694 (1986), where the appellant was denied lesser-offense instructions and was convicted of possession of a controlled substance with intent to deliver and theft by receiving a pistol. However, in that case the appellant testified that he was unarmed and was not in possession of drugs when he was attacked by the police, and in affirming, 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.
Doby v. State, 290 Ark. at 412, 720 S.W.2d at 696.
In my view, there is a material distinction between Doby v. State, supra, and the case at bar. The instant case does not present a situation where the jury is left to decide between two sharply conflicting accounts. There was evidence, in the form of Rodney Barnes’s testimony, that appellant was neither entirely innocent nor entirely guilty.
In Savannah v. State, 7 Ark. App. 161, 645 S.W.2d 694 (1983), we held that where the evidence showed that appellant aided or advised another in planning or committing a robbery but that the other person committed the greater offense of aggravated robbery, appellant’s liability is limited to the lesser offense of robbery. Because there was, at a minimum, the slightest evidence that Denaro Cook aided in committing a robbery but an aggravated robbery was thereafter committed, I would hold that the trial court abused its discretion in denying his request for a jury instruction on the lesser-included offense of robbery.
Pittman, Hart, and Neal, JJ., join in this opinion.