{ "id": 6646427, "name": "Tracy Duane STULTZ v. STATE of Arkansas", "name_abbreviation": "Stultz v. State", "decision_date": "1987-02-18", "docket_number": "CA CR 86-159", "first_page": "90", "last_page": "93", "citations": [ { "type": "official", "cite": "20 Ark. App. 90" }, { "type": "parallel", "cite": "724 S.W.2d 189" } ], "court": { "name_abbreviation": "Ark. Ct. App.", "id": 13370, "name": "Arkansas Court of Appeals" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "269 Ark. 96", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712511 ], "weight": 2, "year": 1980, "opinion_index": 0, "case_paths": [ "/ark/269/0096-01" ] }, { "cite": "262 Ark. 271", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1675852 ], "weight": 2, "year": 1977, "opinion_index": 0, "case_paths": [ "/ark/262/0271-01" ] }, { "cite": "264 Ark. 564", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1668986 ], "weight": 2, "year": 1978, "opinion_index": 0, "case_paths": [ "/ark/264/0564-01" ] }, { "cite": "6 Ark. App. 102", "category": "reporters:state", "reporter": "Ark. App.", "case_ids": [ 6138215 ], "weight": 2, "year": 1982, "opinion_index": 0, "case_paths": [ "/ark-app/6/0102-01" ] } ], "analysis": { "cardinality": 383, "char_count": 5632, "ocr_confidence": 0.934, "pagerank": { "raw": 9.43484252767663e-08, "percentile": 0.5168017517623614 }, "sha256": "4e3f700a8fb32470d32d7b94c207e1f7003c0a73bf3422a6ec6e55c99bd121d8", "simhash": "1:bf6b50adef079d7a", "word_count": 971 }, "last_updated": "2023-07-14T21:16:54.687302+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Cracraft and Mayfield, JJ., agree." ], "parties": [ "Tracy Duane STULTZ v. STATE of Arkansas" ], "opinions": [ { "text": "John E. Jennings, Judge.\nAppellant, Tracy Duane Stultz, was convicted by a jury of burglary and sentenced to 20 years. He argues two points on appeal. We affirm.\nAt trial, Stultz admitted that he had broken into the office of Dr. Phipps in North Little Rock for the purpose of stealing drugs to ease his pain. He was addicted to Demerol, and because he had repeatedly injected his left arm, he developed gangrene in the fingers of his left hand. His testimony that he was in severe pain at the time of the offense is borne out by the fact that shortly after his arrest it became necessary to amputate his fingers.\nThe first argument is that the court erred in refusing to give an instruction on the lesser included offense of breaking or entering. One element of the offense of burglary is that the building broken into be an \u201coccupiable structure.\u201d An occupiable structure is defined by Ark. Stat. Ann. \u00a7 41-2001 (l)(a) (Repl. 1977) as a building where any person lives, or carries on a business or other calling. A person may be convicted of the lesser offense of breaking or entering, whether the building is \u201coccupiable\u201d or not. In essence appellant argues that the jury could have found that the doctor\u2019s office was not an occupiable structure.\nWhere there is no evidence tending to disprove one of the elements of the larger offense, the trial court is not required to give an instruction on a lesser included offense. Bongfeldt v. State, 6 Ark. App. 102, 639 S.W.2d 70 (1982). If, after viewing the facts in the light most favorable to appellant, no rational basis for a verdict acquitting him of the greater offense and convicting him of the lesser one can be found, it is not error for the trial court to refuse to give an instruction on the lesser included offense. Grays v. State, 264 Ark. 564, 572 S.W.2d 847 (1978).\nBarksdale v. State, 262 Ark. 271, 555 S.W.2d 948 (1977) is in point. There the defendant had broken into a student union building on a college campus and was convicted of burglary. His only argument on appeal was that the trial court erred in refusing to give an instruction on breaking or entering. The supreme court held that the fact the building was used for social activities, religious sessions, and classroom meetings clearly demonstrated that the building was an occupiable structure, and that therefore there was no issue on this point to go to the jury.\nIn the case at bar, the doctor\u2019s office manager, Theresa McCullough, testified that the burglary had occurred at Dr. Phipps\u2019 main clinic, where he carried on his business. The appellant testified that he knew that was where Dr. Phipps conducted his business. There is not the least suggestion in the record that the building was not \u201coccupiable\u201d within the meaning of the law. The trial court did not err in refusing to give an instruction on breaking or entering.\nAppellant\u2019s second argument is that the court erred in refusing to give the jury an instruction on the defense of justification. Ark. Stat. Ann. \u00a7 41-504(1) (Repl. 1977) provides:\nConduct which would otherwise constitute an offense is justifiable when:\n(a) The conduct is necessary as an emergency measure to avoid an imminent public or private injury; and\n(b) The desirability and urgency of avoiding the injury outweigh, according to ordinary standards of reasonableness, the injury sought to be prevented by the law proscribing the conduct.\nAppellant\u2019s argument is that, because of the extreme pain in his hand, he was justified in breaking into the doctor\u2019s office to steal drugs. His testimony was that on the day of the break-in, he had seen three or four doctors, and all but one had refused to treat him. At trial, he said:\nEvery one of them refused, but one. There was one doctor, she was a lady doctor and I don\u2019t know her name, but she was going to treat it, give me a prescription for some pain medicine.\nHe testified that he did not go to a hospital emergency room because he didn\u2019t know anything about North Little Rock, where he was staying at the time.\nThe supreme court in Koonce v. State, 269 Ark. 96, 598 S.W.2d 741 (1980), held that \u00a7 41-504 is to be narrowly construed and applied. The court in Koonce examined not only the examples provided in the commentary to our statute, but also additional examples provided by the commentary to a tentative draft of the Model Penal Code, which was the basis for our criminal code. The examples given in the commentary to our statute are: the destruction of buildings or other structures to keep fire from spreading; breaking levees to prevent the flooding of a city, causing in the process, flooding of an individual\u2019s property; and temporary appropriation of another person\u2019s vehicle to remove a seriously injured person to a hospital. One of the examples given in the commentary to the Model Penal Code is that of a druggist dispensing a drug without the requisite prescription to alleviate distress in an emergency.\nThe facts in the case at bar, taken in the light most favorable to the appellant, do not compare favorably with the illustrative examples. Appellant\u2019s conduct does not meet either requirement of \u00a7 41-504. He was not entitled to the requested instruction on justification.\nAffirmed.\nCracraft and Mayfield, JJ., agree.", "type": "majority", "author": "John E. Jennings, Judge." } ], "attorneys": [ "William R. Simpson, Jr., Public Defender, Arthur L. Allen, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.", "Steve Clark, Att\u2019y Gen., by: Robert A. Ginnaven, III, Asst. Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Tracy Duane STULTZ v. STATE of Arkansas\nCA CR 86-159\n724 S.W.2d 189\nCourt of Appeals of Arkansas Division I\nOpinion delivered February 18, 1987\nWilliam R. Simpson, Jr., Public Defender, Arthur L. Allen, Deputy Public Defender, by: Deborah R. Sailings, Deputy Public Defender, for appellant.\nSteve Clark, Att\u2019y Gen., by: Robert A. Ginnaven, III, Asst. Att\u2019y Gen., for appellee." }, "file_name": "0090-01", "first_page_order": 112, "last_page_order": 115 }