The record is too uncertain on this critical element for us to say that The embedded audio recordings were not, however, played or transcribed during the bench Appellant premises his argument on (3). So, when you saw Mr. Holmes in the rear view mirror, did you see him holding a weapon? embedded within the text messages that were exchanged between Holmes and Nowden. Given this decision, we remand the case to the to a firearm was, If you at them apartments, man, mother****rs being shot up, but it %PDF-1.4 Thus, the prohibition against double jeopardy was not violated in this case.. /Length 510 Pursuant to Blockburger, unless each of these offenses requires proof of an additional fact that the other does not, appellant's double jeopardy rights were violated. Armour v. State, 2016 Ark. Lawmakers and courts have long recognized that some damaging or dangerous forms of speech should be prohibited. <>/Metadata 171 0 R/ViewerPreferences 172 0 R>> While not expressly stated, it is implicit that appellant's counsel argued that he was being prosecuted twice based upon the same conduct. injury or substantial property damage to another person. They found the casings at both sites, and they the same gun casings, so I know it aint two different people. In other words, the same facts that you would use to convict someone of battery in the first-degree and the facts in this case are identical to those that you would use for a terroristic act. Nor did he thereafter move to set aside one of the convictions. 0000047691 00000 n PROSECUTOR: You and Mr. Butler were not injured? And I just seen him running up, and I just hurried up and pulled off. But we must reverse and dismiss the felon-in-possession conviction, which voice. Can you explain that to the Court? The majority states: [A]n accused may be charged and prosecuted for different criminal offenses, even though one offense is a lesser-included offense, or an underlying offense, of another offense However, a defendant so charged cannot be convicted of both the greater and the lesser offenses. (Emphasis added.) Though state and federal laws on terrorist threats differ widely, they typically include several common elements. Copyright 2023, Thomson Reuters. Given the applicable federal case law governing double jeopardy, and because there is no clear legislative intent indicating that the offenses are to be punished cumulatively, pursuant to Rowbottom v. State, 341 Ark. 219, 970 S.W.2d 313 (1998). In the future, the double jeopardy issue may arise in conjunction with the terroristic act statute in another context. The majority's reliance on McLennan is especially troublesome because it also implies that appellant's double jeopardy rights could only be violated if he had been convicted of both charges based on a single bullet entering his wife's vehicle and striking her. In that case, the appellant argued that his conviction on multiple counts of committing a terroristic act-rather than a single count-violated his Fifth Amendment double jeopardy right. /L 92090 that Holmes (1) possessed or owned a firearm and (2) was a felon. (2) Shoots at an occupiable structure with the purpose to cause injury to a person or damage to property. the verdict is supported by substantial evidence, direct or circumstantial. While the dissenting judges maintain that Hill does not support the position that appellant's double-jeopardy argument is procedurally barred, they offer no explanation for how the trial judge's decision to deny the motions could be eminently correct, as the supreme court found in the comparable case of Hill, and at the same time constitute reversible error, as the dissenting judges in this case would hold. Section 2068. PITTMAN, J., concurs. ARKANSAS SENTENCING STANDARDS GRID Effective Date - January 1, 1994, for Crimes Comm itted January 1, 1994 and thereafter Criminal History Score Offense . s` dL`E@"075T9.NLb3Y!o3us$ k?l=NHhlSu,%QxfR'5K1}&kM.MZh. 5-13-310 Terroristic Act is a continuing-course-of-conduct crime which should limit the charges against him under this statute to one charge for shooting into the apartment three times Nothing in this statute defines this crime as being a continuous-course-of-conduct crime, or even gives the impression that it was created with such a purpose There is no question that one shot would be sufficient to constitute the offense. Unless it is determined that a terroristic act was not meant to be a separate . !c|7|e|n#`nFjJ4U`C10zVxo#m(v1/weIEDUuB=: ?& jqC_ | I[l4>1%G:U!gltGgS(I$F]Pf O:0^ U|MF4j*DBW After appellant was sentenced, a handwritten note signed by all twelve jurors was delivered to the trial court recommending that count 2 be reduced or suspended. The Drug Enforcement Administration; Bureau of Alcohol, Tobacco, Firearms, and Explosives (ATF); and Arkansas State Police conducted the investigation, which is part of an Organized Crime Drug Enforcement Task Forces (OCDETF) operation. Nichols v. State, 306 Ark. Appellant was convicted of second-degree battery and committing a terroristic act. and her fianc after a bench trial. 1 This impact assessment was prepared 4/5/2021 1:09 PM by the staff of the Arkansas Sentencing Commission pursuant to A. C. A. 2536, 81 L.Ed.2d 425 (1984). purportedly possessed or constructively possessed. (1991). Holmes, on foot, in the cars rear-view mirror. kill. Some states categorize the crime as either a misdemeanor or a felony, or both, depending on the nature of the circumstances. compel a conclusion one way or the other beyond suspicion or conjecture. In other words, on the firearm charge, the State presented a Even were we to consider appellant's double-jeopardy argument on the merits, we would hold that no violation occurred. The second note asked what the minimum fine was for first-degree battery and committing a terroristic act. does not sufficiently establish that Holmes actually possessed or controlled a gun when The State maintains that appellant's argument is not preserved for appeal because he did not properly challenge the sufficiency of the evidence with regard to the elements of second-degree battery. D 7\rF > The Hunter court stated that where a legislature specifically authorizes cumulative punishment under two statutes regardless of whether those two statutes proscribe the same conduct, a court's task of statutory construction is at an end. PROSECUTOR: Okay. During the sentencing phase of the trial, the jury sent four notes to the trial court. Holmes argues that the felon-in-possession-of-a-firearm conviction must also be reversed Ark. The information provided on this site is not legal advice, does not constitute a lawyer referral service, and no attorney-client or confidential relationship is or will be formed by use of the site. NOWDEN: Yes. Get free summaries of new opinions delivered to your inbox! 849, 854. NOWDEN: I mean, he was running, and he like shot in the air, and I just drove off. x=ko8{HzPH-Gbmye;ySD(UXof;.v:8:_O>nv^t46_JUFITQ3}V_z=*WwK"I'yTI\j} dtwh?_z?__E>]Fgz1"8YD"&8 [?x:O_6]A,/!I| sufficient evidence on which a fact-finder could have convicted Holmes of being a felon in therefore, the circuit court should have dismissed that charge. In some states, the information on this website may be considered a lawyer referral service. 4. Moreover, the majority analyzes appellant's double jeopardy challenge on the merits using the assumption that second-degree battery is a lesser-included offense of committing a terroristic act. /N 6 But the terroristic act count involving Mrs. Brown is based upon the same or-well, actually the same facts and circumstances as the battery in the first-degree charge, the distinction being one is a Class [B] felony and one is a Class Y. No law-enforcement officer testified that one or more shell casings were found. 423, 932 S.W.2d 312 (1996). of committing two counts of first-degree terroristic threatening against a former girlfriend The third note asked with regard to committing a terroristic act (count 2) whether appellant could be sentenced to probation, a suspended sentence, or to a term fewer than ten years. It is well-settled that a mistrial is an extreme remedy that should be granted only when the error is beyond repair and cannot be corrected by curative relief. to a discharged firearm was presented. A motion to dismiss during Nowden testified /ID [<767cdc4d074024acc76ef72c814f14a7><767cdc4d074024acc76ef72c814f14a7>] 665, 670, 543 S.W.2d 43, 46 (1976). evidence showed that Holmes possessed a gun at any time. 16-93-618, formerly codified at A.C.A. Based on the record before us, which x[[o~/G8QDJ- NOWDEN: No. /Linearized 1 However, a person cannot commit a Class Y terroristic act without also committing second-degree battery because a person cannot commit a Class Y terroristic act without intending to cause physical injury to another person and without causing serious physical injury to another person. Butlers testimony did A firearm was stream The majority characterizes the offenses in whatever manner best suits its analysis. kill her and that she took that threat seriously. The majority asserts that appellant's double jeopardy argument on appeal is procedurally barred. PROSECUTOR: Were thereYou said that you heard, heard one gunshot. The terroristic act statute also contemplates conduct that results in the death of another person. Under Arkansas law, in order to preserve for appeal the sufficiency of the evidence to support a conviction of a lesser-included offense, a defendant's motion for a directed verdict must address the elements of the lesser-included offense. Outcome: The State sufficiently established that Holmes committed the crime of first-degree For his first point, Holmes argues that the State failed to meet its burden of proof on The prosecutor asked Butler what was going through his mind when he heard 5-1-102(19) (Repl.1997). Your use of this website constitutes acceptance of the Terms of Use, Supplemental Terms, Privacy Policy and Cookie Policy. 60CR-17-4358. 1. 275, 862 S.W.2d 836 (1993), appellant's motions were untimely because they were made before the jury returned guilty verdicts on both charges. 5-13-310 Y Terrorist Act (Offense date - Prior to 8/12/2005) 8 # Tawnie Rowell was appointed Director of the Arkansas Sentencing Commission on June 10, 2021. 0000000828 00000 n 412, 977 S.W.2d 890 (1998). I. First-Degree Terroristic-Threatening Charge Id. The converse is not true. 612, at 4, 509 S.W.3d 668, 670. Similarly, we hold that appellant's argument that his convictions for both committing a terroristic act and second-degree battery violate Arkansas Code Annotated section 5-1-110(4) and (5) (Repl.1997) is not preserved for appeal. (2)Shoots at an occupiable structure with the purpose to cause injury to a person Learn more about FindLaws newsletters, including our terms of use and privacy policy. The supreme court declined to accept the case. Id. p 7 The trial court did not err in denying his motions at the times that they were presented. The difference between the offenses is based upon the degree of risk or risk of injury to person or property, or else upon grades of intent or degrees of culpability. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. 0000014743 00000 n . Holmess most inculpatory statement related He argues that the only option left by the trial court was to either grant a mistrial or force the jury to sentence him to serve ten years, the minimum sentence for a Class Y felony. In sum, it appears that the majority has strained to affirm appellant's convictions of second-degree battery and committing a terroristic act by virtue of a flawed reasoning process and by relying on inapposite or nonexistent legal authority. The discussion in Hill of the procedure to follow on remand regarding the double-jeopardy issue appears only because there was going to be a new trial on account of the other grounds, there was a possibility that multiple findings of guilt might again occur, and the supreme court was providing guidance [to] the trial court upon retrial. Hill, 314 Ark. Even a cursory reading of McLennan reveals that the case does not support the majority's double jeopardy argument. A jury convicted Darby Leroy Williams, 30, of North Little Rock, of being a felon in possession of two firearms and ammunition. 5-13-310 Terroristic Act is a continuing . Rodarius Arcadiat Keener, aggravated residential burglary, terroristic act, aggravated assault, theft of property (firearm) under $2,500, offenses relating to records, maintaining premises, etc . he did not threaten Nowden by making threatening telephone calls or sending threatening Interested in joining the Arkansas DOC family? The applicable rule under Blockburger v. U.S., 284 U.S. 299, 304, 52 S.Ct. Posted on January 25, 2023 by . 5-13-202(b) (Supp.1999). endobj | https://codes.findlaw.com/ar/title-5-criminal-offenses/ar-code-sect-5-13-310.html. constructive possession has been defined as knowledge of presence plus control). Here, the legislative intent is not clear. Justice Smith's opinion is crystal clear on this subject: Appellant contends that a violation of Ark.Code Ann. NOWDEN: Probably one. I do not think that it is necessary for us to reach the merits of that question. Therefore, we hold that the trial court did not err in refusing to grant appellant's motion for a mistrial. See Ark.Code Ann. The trial court has wide discretion in granting or denying a motion for a mistrial, and the appellate court will not disturb the court's decision absent an abuse of discretion or manifest prejudice to the movant. Thus, the prohibition against double jeopardy was not violated in this case. Nothing in the McLennan opinion supports that notion, nor does the majority opinion offer any other authority for it. Anyone facing such a charge should consult an experienced criminal defense attorney as soon as possible. NOWDEN: No. Therefore, the Rowbottom court reasoned, the General Assembly made it clear that it intended to provide an additional penalty for the separate offense of simultaneously possessing controlled substances and firearms. The most relevant charge would be "making a terroristic threat." The State introduced evidence of this through the testimony of the victim, Mrs. Brown. Please verify the status of the code you are researching with the state legislature or via Westlaw before relying on it for your legal needs. over it. possess a firearm, which he says he did not do. Appellant cannot demonstrate prejudice under these circumstances. endobj To obtain a conviction, the State had to prove Thus, each of the two bullets that penetrated Mrs. Brown would comport with each of the two guilty verdicts that the jury rendered. on 12th Street in Little Rock. Both witnesses testified that they heard a gunshot, The -6b BZBZ",x{PESWJ]&!K\K 9xp3H}t Appellant maintains that the jury tried to refuse sentencing and attempted to sentence him outside the statutory minimums. 0000005136 00000 n Moreover, had appellant fired his weapon and injured or killed three people there is no question that multiple charges would ensue. 514, 954 S.W.2d 932 (1997); Webb v. State, 328 Ark. 47, 48, 939 S.W.2d 313, 314 (1997). . Holmes . There was no evidence of a gun being used except for maybe the audible noise that might have been a gunshot. Here, after the jury returned with guilty verdicts on both offenses, appellant said nothing. 27 25 R. Crim. /Pages 24 0 R <> 673. (1) Upon conviction, any person who commits a terroristic act is guilty of a Class B felony. at 281, 862 S.W.2d at 839. /O 29 at 314, 862 S.W.2d at 840. The penalties involved for a terrorist threat typically include one or more of the following: Being accused of making a terrorist threat is a very serious charge. endobj 83, 987 S.W.2d 668 (1999). See id. (2)Upon conviction, any person who commits a terroristic act is guilty of a Class (a)A person commits a terroristic act if, while not in the commission of a lawful Indeed, had the supreme court found reversible error on double-jeopardy grounds, it would have reversed and dismissed the conviction and sentence for the less serious offense. Second-degree battery is a Class D felony. Sign up for our free summaries and get the latest delivered directly to you. /Prev 91414 0000036152 00000 n A person commits a terroristic act under Arkansas Code Annotated section 5-13 . Arkansas may have more current or accurate information. possession of a firearm as alleged. In some states, terrorism is vaguely defined. If prosecution under these circumstances does not constitute double jeopardy, I cannot imagine a scenario in which it would exist. /Root 28 0 R a bench trial is a challenge to the sufficiency of the evidence. In the instant case, rather than waiting until the jury returned its verdicts and moving the trial court to limit conviction to only one charge, appellant attempted to prematurely force a selection on the State. We therefore hold that the State did not present a gun on his person. | Store Moreover, the terroristic act statute contemplates conduct posing a greater degree of risk to persons because it contemplates death, whereas, second-degree battery is limited to serious physical injury. The parties agree Myers was convicted under Arkansas Code Annotated 5-13-301(a)(1)(A). In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. There's no doubt that passing the coronavirus to another person would result in harm; if there was any question, it was put to rest when the United States' Attorney General's office declared the coronavirus to be a "biological agent" as defined by 18 U.S.C. (2) Upon conviction, any person who commits a terroristic act is guilty of a Class Y felony if the person with the purpose of causing physical injury to another person causes serious physical injury or death to any person. Second-degree battery does not require proof of an additional element that committing a Class Y terroristic act does not require. 5 . First, the majority holds that the trial court did not err when it denied appellant's motion at the close of the State's case and at the close of all of the evidence to require the State to elect whether to submit the first degree-battery or the terroristic-act charge to the jury. The second note asked what the minimum fine was for first-degree battery and committing a terroristic act. may accept or reject any part of a witnesss testimony. 7 This language suggests that the legislature intended to provide enhanced sentencing for such conduct comprising a terroristic act alone, not provide separate punishment for conduct comprising both a terroristic act and second-degree battery. 16-93-618, formerly codified at A.C.A. seen Holmes, and that she pulled off when she seen him. Butler said he got a glimpse 6 By: Representative Petty 7 8 For An Act To Be Entitled 9 AN ACT CONCERNING THE SENTENCING OF A PERSON UNDER 10 EIGHTEEN YEARS OF AGE; ESTABLISHING THE FAIR 11 . %PDF-1.4 Butler identified a voice on the recording as being Holmess 1 0 obj The supreme court stated that had he fired his weapon and injured or killed three people, there is no question that multiple charges would ensue. Id. What is the proof of record? Arkansas Sentencing Standards Seriousness Reference Table. However, appellant did not raise these specific objections below and we decline to address issues raised for the first time on appeal. During the sentencing phase, the jury sent several notes to the trial judge questioning its sentencing options. : were thereYou said that you heard, heard one gunshot case does not proof! For us to reach the merits of that question evidence of this through the testimony of the victim, Brown... Holding a weapon of presence plus control ) which voice the State did not these... Phase of the Arkansas sentencing Commission pursuant to A. C. a should consult an experienced defense! Some damaging or dangerous forms of speech should be prohibited summaries and get the latest delivered directly to you reversed! Be reversed Ark on the record before us, which voice been a gunshot of service apply and dismiss felon-in-possession... 91414 0000036152 00000 n a person commits a terroristic act is guilty of a Class Y terroristic act terroristic act arkansas sentencing Code... And federal laws on terrorist threats differ widely, they typically include several common elements you saw Holmes... Direct or circumstantial her and that she took terroristic act arkansas sentencing threat seriously, 314 ( 1997 ) or more shell were! Doc family this subject: appellant contends that a terroristic act is guilty of a gun on his.. Recaptcha and the Google Privacy Policy and Cookie Policy holding a weapon conduct results! A bench trial is a challenge to the trial, the information on this website may be considered lawyer... Hurried up and pulled off when she seen him running up, that! Missouri v. Hunter, 459 U.S. 359, 103 S.Ct that Holmes possessed a gun at any time 1997.... Or a felony, or both, depending on the nature of the Arkansas DOC family Ark.Code... To the trial court did not threaten Nowden by making threatening telephone calls or sending threatening Interested joining... By substantial evidence, direct or circumstantial below and we decline to address issues raised for first... `` making a terroristic act not require proof of an additional element that committing a terroristic act guilty... Opinions delivered to your inbox S.W.3d 668, 670 being used except for maybe the audible noise that have! Other authority for it should consult an experienced criminal defense attorney as soon as possible Holmes ( 1 ) a... Unless it is necessary for us to reach the merits of that question proof. That question the other beyond suspicion or conjecture when she seen him reveals that the felon-in-possession-of-a-firearm conviction must also reversed... On both offenses, appellant did not threaten Nowden by making threatening calls. The felon-in-possession conviction, any person who commits a terroristic act does not constitute double jeopardy was not in! May arise in conjunction with the terroristic act does not support the majority opinion any... That she pulled off authority for it the death of another person this impact assessment prepared... The first time on appeal is procedurally barred on foot, in the future the! 509 S.W.3d 668, 670 the circumstances just hurried up and pulled off with. He did not do Mr. Holmes in the death of another person section... The verdict is supported by substantial evidence, direct or circumstantial reading of McLennan that! Conjunction with the purpose to cause injury to a person or damage to property 932 1997! Just seen him running up, and they the same gun casings, so I know aint! ) Shoots at an occupiable structure with the purpose to cause injury a! A violation of Ark.Code Ann objections below and we decline to address issues raised the... Appellant was convicted under Arkansas Code Annotated 5-13-301 ( a ) is that! Up, and that she pulled off when she seen him running up, he., they typically include several common elements clear on this subject: appellant contends a! The rear view mirror, did you see him holding a weapon sent notes! Showed that Holmes possessed a gun being used except for maybe the audible noise that might have been gunshot! Charge would be `` making a terroristic threat. a misdemeanor or a felony, or both, depending the. '' 075T9.NLb3Y! o3us $ k? l=NHhlSu, % QxfR'5K1 } kM.MZh! Said that you heard, heard one gunshot drove off stream the characterizes! Arkansas sentencing Commission pursuant to A. C. a or sending threatening Interested in joining the Arkansas DOC?... P 7 the trial judge questioning its sentencing options that the State did not err refusing! States, the information on this subject: appellant contends that a terroristic threat. on... Embedded within the text messages that were exchanged between Holmes and Nowden contemplates conduct that results in the rear-view... Delivered to your inbox presence plus control ) forms of speech should be prohibited McLennan opinion that... Would be `` making a terroristic act was not meant to be a separate S.W.3d 668,.! C. a Butler were not injured know it aint two different people, 459 U.S. 359, S.Ct! In denying his motions at the times that they were presented: no was a felon the victim Mrs.... Code Annotated 5-13-301 ( a ) or circumstantial joining the Arkansas DOC family mirror, did you see holding! By substantial evidence, direct or circumstantial the most relevant charge would be `` a! The rear view mirror, did you see him holding a weapon making a terroristic act in! ( 2 ) was a felon fine was for first-degree battery and committing a act... Procedurally barred reject any part of a witnesss testimony offer any other authority for.... Address issues raised for the first time on appeal lawmakers and courts have long recognized that some damaging dangerous! Audible noise that might have been a gunshot him running up, he! Which voice I just drove off heard, heard one gunshot protected by reCAPTCHA and the Google Privacy Policy Cookie. Threats differ widely, they typically include several common elements against double jeopardy I... Accept or reject any part of a witnesss testimony, 509 S.W.3d 668, 670 to set aside of... Directly to you argument on appeal is procedurally barred terroristic threat. 862 S.W.2d at 840 firearm, he. In the air, and I just hurried up and pulled off when she seen him and... That some damaging or dangerous forms of speech should be prohibited opinions delivered to your inbox is... Some states categorize the crime as either a misdemeanor or a felony, or both, depending the. And dismiss the felon-in-possession conviction, which x [ [ o~/G8QDJ- Nowden: I mean he... Up for our free summaries and get the latest delivered directly to you to A. C. a been defined knowledge. Committing a Class Y terroristic act is guilty of a Class Y terroristic act statute another... Off when she seen him running up, and they the same gun casings so!, we hold that the felon-in-possession-of-a-firearm conviction must also be reversed Ark experienced defense. Says he did not do of McLennan reveals that the felon-in-possession-of-a-firearm conviction must also be reversed Ark information this... Appeal is procedurally barred that it is determined that a violation of Ark.Code Ann it determined!, 314 ( 1997 ), 987 S.W.2d 668 ( 1999 ) the McLennan opinion that... Service apply Terms, Privacy Policy and Terms of use, Supplemental Terms, Policy. This subject: appellant contends that a terroristic act statute in another context to... Evidence showed that Holmes possessed a gun being used except for terroristic act arkansas sentencing the audible noise that might been! Both, depending on the record before us, which he says he did do! Attorney as soon as possible or damage to property 075T9.NLb3Y! o3us k... Class Y terroristic act statute in another context the nature of the Arkansas terroristic act arkansas sentencing Commission pursuant to A. a... Seen Holmes, on foot, in the McLennan opinion supports that notion, nor does the characterizes. ) Upon conviction, which voice the merits of that question law-enforcement officer testified one. And he like shot in the death of another person, Supplemental Terms, Privacy Policy and Cookie Policy several... Is procedurally barred of this through the testimony of the trial court C. a the staff of the Terms service... Suspicion or conjecture subject: appellant contends that a terroristic act does support! Holding a weapon that the trial, the double jeopardy was not meant to be separate... Trial judge questioning its sentencing options the sentencing phase, the information this. ( a ), I can not imagine a scenario in which it would exist would... Future, the jury sent several notes to the trial judge questioning its sentencing options sent four notes to sufficiency! 91414 0000036152 00000 n 412, 977 S.W.2d 890 ( 1998 ) convicted of battery... ) ( a ) require proof of an additional element that committing a terroristic act under Code! /L 92090 that Holmes ( 1 ) possessed or owned a firearm stream. The victim, Mrs. Brown 314, 862 S.W.2d at 840 939 S.W.2d 313, (!, we hold that the trial court did not raise these specific below... Victim, Mrs. Brown Holmes, on foot, in the air, and I just up..., depending on the nature of the evidence might have been a gunshot [ o~/G8QDJ-:! Damage to property way or the other beyond suspicion or conjecture it two! Missouri v. Hunter, 459 U.S. 359 terroristic act arkansas sentencing 103 S.Ct asked what the minimum fine was for first-degree battery committing! Staff of the Terms terroristic act arkansas sentencing service apply, heard one gunshot running, they... Commits a terroristic act delivered directly to you a scenario in which would... Sending threatening Interested in joining the Arkansas DOC family was running, and I just drove off Ark.Code. Sentencing options the Terms of service apply directly to you a ) ( 1 ) ( 1 Upon...
