492, 976 S.W.2d 374 (1998); Willis v. State, 334 Ark. Learn more about FindLaws newsletters, including our terms of use and privacy policy. (b) (1) A person commits the offense of terroristic threatening in the second degree if, with the purpose of terrorizing another person, the person threatens to cause physical injury or property damage to another person. The record simply demonstrates that the trial judge properly did not allow the jury to attempt to sentence appellant to a term less than the statutory minimum or to a condition such as probation or a suspended sentence that is statutorily prohibited. Contact us. at 337 Ark. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. It was only if and when the jury returned guilty verdicts on both offenses that the trial court would be required to determine whether convictions could be entered as to both. See Ark.Code Ann. x[[o:~@`hdKOQquhb+PGJ!)$Z]u(3JJWyrs`1^/0{k|CFy].n]"^}NF4<>c[#lrc,_Oh/O0}cS? 2536, 81 L.Ed.2d 425 (1984). Terroristic act. 5-13-202(b) (Supp.1999). (2) Upon conviction, any person who commits a terroristic act is guilty of a Class Y felony if the person with the purpose of causing physical injury to another person causes serious physical injury or death to any person. Nor did he thereafter move to set aside one of the convictions. The first note concerned count 3, which is not part of this appeal. Statute # Class Name of Crime Ranking # 5-10-102 Y Murder I 10 # 5-38-202 Y Causing a Catastrophe (Offense date - 7/16/2003 and thereafter) 10 5-54-205 Y Terrorism (Offense date - 7/16/2003 and thereafter) 10 . (c)This section does not repeal any law or part of a law in conflict with this section, but is supplemental to the law or part of a law in conflict. Appellant maintains that the jury tried to refuse sentencing and attempted to sentence him outside the statutory minimums. Finally, the majority imagines that being charged with the separate offenses of second-degree battery and committing a terroristic act is equivalent to being charged with multiple counts of one offense. The fourth trial that began last week, United States v. Gilbert Baker, is expected to last several weeks and has been paused due to a positive COVID-19 test from one of the trial participants. FindLaw.com Free, trusted legal information for consumers and legal professionals, SuperLawyers.com Directory of U.S. attorneys with the exclusive Super Lawyers rating, Abogado.com The #1 Spanish-language legal website for consumers, LawInfo.com Nationwide attorney directory and legal consumer resources. Lock 2536, 81 L.Ed.2d 425 (1984) (even where Double Jeopardy Clause of federal constitution bars cumulative punishment for a group of offenses, the Clause does not prohibit the State from prosecuting [the defendant] for such multiple offenses in a single prosecution). 139, 983 S.W.2d 383 (1998). hWmoF++t_N,R6HL$, wf1|A zggFA`3@P hxspy6^" 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. 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. <> ARKANSAS SENTENCING STANDARDS GRID Effective Date - January 1, 1994, for Crimes Comm itted January 1, 1994 and thereafter Criminal History Score Offense . That is substantial evidence of serious physical injury. The majority impliedly does so with no authority for its conclusion. Box 1229 Explore career opportunities and sign up for Career Alerts. chng ti nhng nh u t i l cp 1 ca d n, nhn mua bn k gi nh gi t, t vn php l, lm th tc sang tn, vay vn ngn , Hnh nh sau cng ch ti Cng vin nc Thanh H. 5-13-310 Y Terrorist Act (Offense date - Prior to 8/12/2005) 8 # Only at that time will the trial court be required to determine whether convictions can be entered in both cases. Id. 3. `7Xr[vs}|#\`,'Q, 4z,+xwz{l]E9mZhFIB-lf@1rF# N{'E"EkQM"^6.YlUe Smith v. State, 337 Ark. Serious physical injury is an injury that creates a substantial risk of death or that causes protracted disfigurement, protracted impairment of health, or loss or protracted impairment of the function of any bodily member or organ. Ark.Code Ann. 419, 931 S.W.2d 64 (1996). . Second-degree battery does not require proof of an additional element that committing a Class Y terroristic act does not require. See Gatlin v. State, supra. We disagree with appellant's argument. 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. That the majority opinion relies upon McLennan while so clearly recognizing that the appellant in this case has been not been charged with multiple counts of the same offense demonstrates the extraordinary lengths taken to justify a result I consider troublesome and unfair. 119 0 obj <> endobj The evidence at trial indicated that Hobbs sold methamphetamine to an informant, which led to a search warrant at her residence in February of 2018. The case was prosecuted by Assistant United States Attorneys Cameron McCree and Lauren Eldridge and was also tried before Judge Baker. Each of appellant's shots required a separate conscious act or impulse in pulling the trigger and is accordingly punishable as a separate offense. You can explore additional available newsletters here. Second-degree battery is a lesser-included offense of first-degree battery, and may be shown by proof of either purposefully causing physical injury to another, purposely causing serious physical injury to another person by means of a deadly weapon, or by recklessly causing physical injury to another person by means of a deadly weapon. <>/ExtGState<>/XObject<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> Therefore, to the extent that appellant now argues that the jury should not have been instructed on both offenses, he is wrong. endstream endobj 120 0 obj <>/Pages 117 0 R/Type/Catalog>> endobj 121 0 obj <>/Font<>/ProcSet[/PDF/ImageC/Text]>>/Rotate 0/TrimBox[0.0 0.0 612.0 792.0]/Type/Page>> endobj 122 0 obj <>stream 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. 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. 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. 161 0 obj <> endobj 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. (b)(1)Upon conviction, any person who commits a terroristic act is guilty of a Class B felony. 5-13-310, Terroristic Act (Class B felony)*, and A.C.A. Although appellant raises his double-jeopardy argument first, preservation of the appellant's right to freedom from double jeopardy requires us to examine the sufficiency of the evidence before we review trial errors. $2WIT$Y").Hx\DZI&/,:Jn: )X.,pw'CM$tU=J 138, 722 S.W.2d 842 (1987). The weeks first trial began Monday morning with a case in which Sparkle Hobbs, aka Sparkle Bryant, 33, of Little Rock, was charged with conspiracy to possess with intent to distribute heroin, methamphetamine, and fentanyl. Thus, even though the majority fails to acknowledge this requirement, it is necessary, pursuant to our supreme court's holding in Rowbottom v. State, supra, to determine whether the Arkansas General Assembly intended to enact an additional penalty for conduct supporting convictions for both second-degree battery and committing a terroristic act. _UOTE_*KK*AY$P4x2)Sv)ugxNX4$M$Y2 Thanh tra TP H Ni cng b quyt nh thanh tra trch nhim ca phng, qun , TBCKVN Lnh o Tp on Mng Thanh cho bit, tp on ny s xy dng mt khch sn bnh vin ln nht ng Dng ti khu th Thanh , Hn 20 km ng trc Nam H Ni vi tng mc u t 5.000 t ng c thm nha, trng cy xanh khnh thnh dp , H iu ha L phi xanh trong lng khu th Thanh H Mng Thanh Consequently, the sentencing order in case no. The effects of today's decision may be far-reaching.6 The federal Constitution provides a floor below which our fundamental rights do not fall. ] Ohio v. Johnson, 467 U.S. 493, 499, 104 S.Ct. 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. The Hill court reversed and remanded on other grounds, but stated that the trial court correctly denied appellant's motions. 180, 76 L.Ed. (b)(2)Any person who shall commit a terroristic act as defined in subsection (a) of this section shall be deemed 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. The Onion Joins Free-Speech Case Against Police as Amicus, Lawyer Removed from Radio City Music Hall After Facial Recognition Flagged Her As Opposing Counsel. Likewise, in the instant appeal, the jury was presented with evidence from which it could conclude that Mr. Brown fired at least nine rounds from the vehicle he was driving, blowing out the windshield of his own vehicle, causing multiple gunshot holes and damage to the back, side, and front of Mrs. Brown's van, and successfully hitting his wife's body twice with gunfire. What little legislative intent we can glean supports a holding that the legislature intended only to prescribe additional punishment for the conduct leading to the charges in this case, rather than to proscribe separate, cumulative punishment for the two offenses. McLennan was convicted of three counts of committing a terroristic act for firing a handgun three, quick, successive times into his former girlfriend's kitchen window, though no one was injured. In Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. See Kemp v. State, 335 Ark. All rights reserved. 60CR-17-4358. 83, 987 S.W.2d 668 (1999). 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. <>/OutputIntents[<>] /Metadata 179 0 R>> 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.) Please try again. For more information about the legal concepts addressed by these cases and statutes, visit FindLaw's Learn About the Law. See Ark.Code Ann. 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. Tawnie Rowell was appointed Director of the Arkansas Sentencing Commission on June 10, 2021. Arkansas Sentencing Standards Seriousness Reference Table. This impact assessment was prepared (03/12/2019, 09:22 a.m.) by the staff of the Arkansas Sentencing Commission pursuant to A. C. A. . 5-13-201(a)(1) (Repl.1997). hb```"O 1T`We)MP&g8/|d|1y*.vr;\,\g &Q Pursuant to Arkansas Code Annotated section 5-73-103(a)(1) (Repl. (AD^ww>Y{ Law enforcement received information that Williams was dealing drugs from his residence. 83, 987 S.W.2d 668 (1999), that committing a terroristic act is not a continuous-course-of-conduct crime. Appellant premises his argument on (3). PITTMAN, J., concurs. D 7\rF > endobj Id. hb```t!b`0p\` #}ii0.~(f` pA*y2/XsY!ps]A I x 83, 987 S.W.2d 668 (1999), and holds that appellant's convictions and sentences for both Class Y terroristic act and second-degree battery do not violate the prohibition against double jeopardy. Share sensitive information only on official, secure websites. Have a question about Government Services? Nevertheless, even though the majority holds that appellant's argument is procedurally barred, it asserts that [e]ven were we to consider appellant's double-jeopardy argument on the merits, we would hold that no violation occurred. Proceeding from the State's contentions and proof that appellant fired multiple shots at Mrs. Brown's van and that Mrs. Brown was personally hit twice, the majority opinion concludes that appellant's convictions for second-degree battery and committing a terroristic act are not constitutionally infirm because they are based on two separate criminal acts.. Second-degree battery may be proved by means other than purposefully causing serious physical injury, i.e., by recklessly causing serious physical injury to another person by means of a deadly weapon. .+T|WL,XOVPvH e%*x{]wu sw,}*m@})H~h) < WwmD#X5 N6DoEh&`'BqQ_q7osh). %%EOF Justice Smith's opinion is crystal clear on this subject: Appellant contends that a violation of Ark.Code Ann. 149 0 obj <>stream 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. Appellant's first statement on the subject at trial came at the close of the State's case-in-chief and began, [W]e are at the point in this trial where the State must choose whether it's going forth with battery [or] terroristic act. His last comments came at the close of his own case-in-chief, before the jury was instructed, and concluded, [I]t's unfair to the defendant to-to have it submitted to the jury on both counts, when he could be convicted of both counts, when, in reality, it's one set of facts and one act and one act only.. 31 (a) The Arkansas Crime Information Center shall maintain a registry of 32 all sentencing orders . Wilson v. State, 56 Ark.App. Second-degree battery is a Class D felony. A person commits a terroristic act under Arkansas Code Annotated section 5-13 . Moreover, whether injuries are temporary or protracted is a question for the jury. ,*`\daqJ97|x CN`o#hfb Both the timing and content of appellant's objections and motions at trial show that they were directed at forcing the State to elect between the two offenses before submission of the case to the jury and to prevent the jury from being instructed on both offenses.3 However, appellant was entitled to neither form of relief. The State introduced evidence of this through the testimony of the victim, Mrs. Brown. ) or https:// means youve safely connected to the .gov website. See Marta v. State, 336 Ark. 5-13-202(a)(1) (Repl.1997). SN GIAO DCH BT NG SN MNG THANH - THANH H, B1.4 BT10 08, S= 225m2 hng ng nam, ng 14m ngay li vo vn hoa 3000m2, gn chung c v h gi 40tr/m2 ( c thng lng), B2.4 BT01 15 S200m2 mt ng 20.5m ngay st ng trc 60m, kinh doanh tt, nhn t s dng lun, gi 55tr/m2 ( c thng lng), B1.4 LK30 10din tch 100m2 mt ng 17m hng ng bc nm gn chung c v h, nhn ra trng hc, xong 100% h tng gi bn 46tr/m2, A1.2 lk3 01 din tch 100m2 gc ng t , ng 90% gi 64tr/m2, B2.3 LK 13 9 100m2 ng 14m hng ng, nhn cng trng hc, gi 46tr/m2, A1.2 BT4 03 200m2 ng 14m hai mt thong, gi 47tr/m2, B1.4 LK7 22,23 din tch 85m2 hng ty bc mt ng 25m, st h iu ha v ng 30m, B1.1 LK 17 07 din tch 90m2 hng ng nam mt ng 25m i din trng hc chung c tin kinh doanh, , lm vn phng, B1.1 lk 15 28, gc 2 mt thong, mt tin 6m su 18m nhn t xy lun, i din trng mm non gi TT, A 1.2 LK2 10 gc ng ba nm i din cng vin hng mt gn chung c, h iu ha gi TT, A1.2 LK03 01 gc ng t mt ng 14 v 17m din tch 100m2 gi tt, A1.2 LK1 4 ng 17,5m din tch 96m2 gi TT, A1.2 LK5 11 mt knh ng 17m din tch 85m2 v tr p v thong nht khu A1.2 gi TT, A3.1 LK1 98mt knh din tch 100m2 hng ty, nm st ng 60m gi TT, -A3.1 LK1 48,50 din tch 125m2 nm sau shophouse xy 6 tng gi TT, A1.2 BT4 04200m2 trc l mt knh gn h iu ha 16ha, mt sau l vn hoa v tr l tng hoc kinh doanh gi TT, B1.3 BT02 05 276m2 mt ng 25m mt tin 12m ngay u li vo d n gn h v tr khng th p hn m vn phng, nh hng. It is important to note that the supreme court in Hill reversed Hill's conviction on different grounds, not on the double-jeopardy argument. See Ark.Code Ann. 673. A .gov website belongs to an official government organization in the United States. He was charged with first-degree battery, a Class B felony (count 1), and committing a terroristic act, a Class Y felony (count 2), with regard to Shirley Brown.1. Trong tng lai khng xa, h thng cng vin cy xanh h iu ha , UBND Thnh ph H Ni va ph duyt iu chnh xut d n Xy dng tuyn ng t ng L Trng Tn n ng Vnh ai 3( Ni vo tuyn , Copyright 2018 MUONGTHANH-THANHHA.COM. See Gatlin v. State, 320 Ark. Contact us. 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. The majority then treats appellant's double-jeopardy argument as if the dispositive issue is whether committing a terroristic act is a continuous-course-of-conduct crime, pursuant to McLennan v. State, 337 Ark. We find no error and affirm. Arkansas Code Annotated section 5-74-102 (Repl.1997) specifically refers to distributing a controlled substance while possessing a firearm. 3 0 obj 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. Subsection (a)(4) provides that a defendant may not be convicted of more than one offense if the offenses differ only in that one is designed to prohibit a designated kind of conduct generally and the other offense is designed to prohibit a specific instance of that conduct. endstream endobj startxref 2 0 obj However, the Hill court did not find that appellant's double jeopardy argument was barred where he made a pretrial motion and orally renewed the motion during the trial. v3t@4w=! (c) This section does not repeal any law or part of a law in conflict with this section, but is supplemental to the law or part of a law in conflict. JENNINGS, CRABTREE, and BAKER, JJ., agree. During the sentencing phase, the jury sent several notes to the trial judge questioning its sentencing options. The State maintains that appellant has not produced a record by which it is apparent that he suffered prejudice as a result of the questions asked by the jurors. 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. Thus, the prohibition against double jeopardy was not violated in this case.. %PDF-1.7 423, 932 S.W.2d 312 (1996). The trial court denied appellant's motions. 47, 48, 939 S.W.2d 313, 314 (1997). Terroristic threatening in the second degree is a Class A misdemeanor. 120, 895 S.W.2d 526 (1995). The trial court denied his motions. 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