When two (2) or more persons are criminally liable for an offense of which there are different degrees, each person is liable only for the degree of the offense that is consistent with the person's own:
Culpable mental state; or
Accountability for an aggravating fact or circumstance.
Although this section is a correct statement of the law, it is not a model jury instruction; it is unnecessary to give it to the jury when its substance is covered by other instructions. Wilson v. State, 364 Ark. 550, 222 S.W.3d 171 (2006).
During defendant's trial for capital murder, the trial court correctly refused to give a proffered non-model jury instruction because defendant was tried alone and the liability of her sons, who were also charged with capital murder for the murder of their landlord, had not been decided; this section is not relevant where the defendant is tried alone. Wilson v. State, 364 Ark. 550, 222 S.W.3d 171 (2006).
Trial court did not err in refusing to give the jury instruction concerning different criminal liabilities of co-defendants because the jury found defendant guilty of capital murder, even though it had been instructed on the lesser included offenses of first and second-degree murder; thus, any error in failing to give a manslaughter or negligent homicide instruction was cured. Vidos v. State, 367 Ark. 296, 239 S.W.3d 467 (2006).
Proper Convictions.
The court did not err in convicting defendant as an accessory to a lesser degree of an offense even though both he and the principal were indicted for a higher degree of the offense and the principal was convicted of higher degree of the offense. Fields v. State, 213 Ark. 899, 214 S.W.2d 230 (1948) (decision under prior law).
There was no inconsistency in holding one codefendant guilty of being an accomplice to a lesser included offense while holding the other codefendant guilty of the greater offense. Blann v. State, 15 Ark. App. 364, 695 S.W.2d 382 (1985).
Wilson v. State, 222 S.W.3d 171 (Ark. 2006). · cites it 73דThe circuit court also denied Wilson's request that the court give a non-model jury instruction based on Ark.Code Ann. § 5-2-406 (Repl.1997). The jury found Wilson guilty of capital murder, and she was sentenced to life imprisonment.”
Strain v. State, 394 S.W.3d 294 (Ark. 2012). · cites it 12ד2d 404, which would have informed the jury that the mere presence, acquiescence, silence, or knowledge that a crime is being committed, in the absence of a legal duty to act, is not sufficient to make one an accomplice; (2) an instruction based on Arkansas Code Annotated section…”
Vidos v. State, 239 S.W.3d 467 (Ark. 2006). · cites it 8דAppellant asserts that the proffered instruction based on Ark. Code Ann. § 5-2-406 (Repl. 1997), is applicable and that the Jones case should be overruled.”
Strain v. State, 423 S.W.3d 1 (Ark. 2012). · cites it 8ד2d 432 , requires this instruction in cases where two or more defendants are charged and tried together if the degree of each defendant’s culpability may differ. On this, petitioner is mistaken.”
Jones v. State, 984 S.W.2d 432 (Ark. 1999). · cites it 5דThat is not the law because the State needed only to prove that Jones acted purposefully in the attempted aggravated robbery in order to be guilty of capital felony murder for the resulting death.”
Taylor v. State, 799 S.W.2d 519 (Ark. 1990). · cites it 3דShe cites Ark. Code Ann. § 5-2-406 (1987), which provides that when two or more persons are criminally liable for an offense of which there are different degrees, each person should be liable only for the degree of the offense that is consistent with his own mental culpability.”
Branstetter v. State, 57 S.W.3d 105 (Ark. 2001). “1997), and § 5-2-406 (Repl. 1997). In determining if the trial court erred in refusing an instruction in a criminal trial, the test is whether the omission infects the entire trial such that the resulting conviction violates due process.”
Ventress v. State, 794 S.W.2d 619 (Ark. 1990). · cites it 2דThe appellant requested an additional instruction, taken from Ark. Code Ann. § 5-2-406 (1987), which provides: When two or more persons are criminally liable for an offense of which there are different degrees, each person shall be liable only for the degree of the offense that…”
Vaughan v. State, 555 S.W.3d 922 (Ark. Ct. App. 2018). · cites it 2דConsidering Butler's testimony in which he testified that he told appellant before picking up Scroggins that he was going to beat Scroggins up and get his stuff back, then the only elements of an offense that are met and the only culpable mental state proved is that of a simple…”
Strain v. State, 2017 Ark. 104 (Ark. 2017). · cites it 2דMoreover, this court noted that trial counsel was not ineffective for failing to proffer an instruction pursuant to Arkansas Code Annotated section 5-2-403, defining an accomplice, or an instruction pursuant to Arkansas Code Annotated section 5-2-406, on culpability when two or…”
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