Ayers v. State, 334 Ark. The Attorney General's declaration could, in theory, also support a charge of terrorism, if the individual acted with the intent to take down the government or affect society in general. While Hill may stand for the unremarkable proposition that the trial court may allow the prosecution to proceed on both charges and is not required to limit the conviction to the greater offense until the jury returns with verdicts on both charges, it does not support the majority's position that appellant's double jeopardy argument is procedurally barred because he did not wait until the jury returned both verdicts to move the trial court to limit the conviction to only one charge. NOWDEN: The police officer that was called to the scene, he said he was gonna go over there and see[.] For his second point, 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. https://codes.findlaw.com/ar/title-5-criminal-offenses/ar-code-sect-5-13-310.html, Read this complete Arkansas Code Title 5. Nowden testified 0000014497 00000 n Second-degree battery does not require proof of an additional element that committing a Class Y terroristic act does not require. The record is too uncertain on this critical element for us to say that 412, 977 S.W.2d 890 (1998). Arkansas Sentencing Standards Grid POLICY STATEMENTS voicemails stating that he was gonna kill me, kill my boyfriend, all type of stuff. The 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. . 5-13-202(b) (Supp.1999). of committing the crimes of possession of firearms by certain persons, aggravated assault on Second-degree battery is a Class D felony. << He argues this is compelling evidence that he did not receive a fair trial. /E 58040 PROSECUTOR: And when you got to that Burger King, did you see Mr. Holmes at some point? The elements for committing a second-degree battery under either section of the battery statute were met in this case where the State proved appellant committed a Class Y terroristic act. The purpose of the Arkansas Sentencing Commission is to establish sentencing standards and to monitor and assess the impact of practices, policies, and existing laws on the correctional resources of the state. /N 6 Appellant was sentenced to serve 120 months for his conviction for committing a terroristic act, and was ordered to pay a $1.00 fine for second-degree battery. Id. | Link Errors terroristic act arkansas sentencing 19 3407 . See id. 5-1-110(a) (Repl.1993). know about that, but okay. 1050. McLennan provides no authority for the majority's double jeopardy argument because the charges for which the instant appellant was convicted are different from the charges in the McLennan case. The State maintains that appellant's argument is not preserved for appeal because he did not properly challenge the sufficiency of the evidence with regard to the elements of second-degree battery. Citing Missouri v. Hunter, 459 U.S. 359, 103 S.Ct. 2016), no . A motion to dismiss during endobj 83, 987 S.W.2d 668 (1999), and holds that appellant's convictions and sentences for both Class Y terroristic act and second-degree battery do not violate the prohibition against double jeopardy. OFFENSE SERIOUSNESS RANKING TABLE FOR ALL CRIMINAL OFFENSES . circumstantial case. *$mMLIiLNju\siGp~)tX{|g+095/`|eAbs@g5&q03 Oo-R$F#"z;H94 177, 790 S.W.2d 919 (1990). NOWDEN: Yes. Holmes speak to him. See Marta v. State, 336 Ark. The Hunter court stated that where a legislature specifically authorizes cumulative punishment under two statutes regardless of whether those two statutes proscribe the same conduct, a court's task of statutory construction is at an end. Id. compel a conclusion one way or the other beyond suspicion or conjecture. <> Description: In July 2018, Donnie Lee Holmes was convicted (in case number 60CR-17-4171) | Articles A firearm was The first note concerned count 3, which is not part of this appeal. at 368, 103 S.Ct. stream Holmes is a prior felon; he therefore focuses his argument on the element that he had to Given this decision, we remand the case to the 514, 954 S.W.2d 932 (1997); Webb v. State, 328 Ark. PROSECUTOR: Okay. ?hQ@7`).d!\+}airr 'm}uAN$>)#>vRL8kDN1> Appellant moved for a directed verdict only on the ground that there was insufficient proof of serious physical injury and did not address the remaining elements under the second-degree battery statute. At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. 1. Felon-In-Possession-of-a-Firearm Charge Finally, the Hill court noted that upon remand, if the defendant was convicted of both charges, he would likely move to limit the judgment of conviction to one charge and at that time, the trial court would be required to determine whether convictions could be entered on both charges. Copyright 2023, Thomson Reuters. Foster v. State, 2015 App. We do address, however, the sufficiency of the evidence as to serious physical injury as it relates to committing a terroristic act, Class Y felony. printed text messages indicate that there are (or were at one time) audio recordings /Metadata 26 0 R PROSECUTOR: You and Mr. Butler were not injured? If prosecution under these circumstances does not constitute double jeopardy, I cannot imagine a scenario in which it would exist. That holding is based on the erroneous view that, pursuant to Hill v. State, 314 Ark. >> She said that after the E-Z Mart incident, Holmes called her 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. /Root 28 0 R NOWDEN: Uh huh. Outcome: The State sufficiently established that Holmes committed the crime of first-degree 612, at 4, 509 S.W.3d 668, 670. See Kemp v. State, 335 Ark. 0000000930 00000 n terroristic act arkansas sentencing 5:59 sng 23/03/2022 0 lt xem Arkansas sentencing Arkansas Sentencing Standards Seriousness Reference Table OFFENSE . As explained in this article, the prosecutor need only prove that the threat to harm was clear, immediate, and unconditional. seen Holmes, and that she pulled off when she seen him. Butler said he got a glimpse 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. Otherwise, the offense is a Class B felony under subsection (b)(1). We first address Holmess contention that the State did not prove its case on the The trial court denied appellant's motions. A threat to kill someone will, quite obviously, sustain a conviction for first-degree You already receive all suggested Justia Opinion Summary Newsletters. Holmes 1 N[|wCq9F}_(HJ$^{J, Second-degree battery is a lesser-included offense of first-degree battery, and may be shown by proof of either purposefully causing physical injury to another, purposely causing serious physical injury to another person by means of a deadly weapon, or by recklessly causing physical injury to another person by means of a deadly weapon. Appellant moved for a mistrial, arguing that the jury was confused. 2016), no At FindLaw.com, we pride ourselves on being the number one source of free legal information and resources on the web. 419, 931 S.W.2d 64 (1996). Defendants convicted of making terrorist threats face a range of possible penalties. << 28 0 obj Even a cursory reading of McLennan reveals that the case does not support the majority's double jeopardy argument. 12, 941 S.W.2d 417 (1997). endobj Holmes, on foot, in the cars rear-view mirror. Appellant argued that both charges were based on the same conduct. Nowden and points out that the recorded voicemail presented in States exhibit 1 is 4 0 obj The majority opinion purports to address appellant's double jeopardy argument by a reasoning process that is as fanciful as it is convoluted. Read this complete Arkansas Code Title 5. Id. Cite this article: FindLaw.com - Arkansas Code Title 5. Therefore, for this one act, appellant is being punished twice. This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply. 417, 815 S.W.2d 382 at 281, 862 S.W.2d at 839. 0000032025 00000 n Pokatilov v. State, 2017 Ark. s` dL`E@"075T9.NLb3Y!o3us$ k?l=NHhlSu,%QxfR'5K1}&kM.MZh. 5. Moreover, had appellant fired his weapon and injured or killed three people there is no question that multiple charges would ensue. 275, 281-82, 862 S.W.2d 836, 839-40 (1993) (trial court's decision to deny motions, made both prior to and during trial, to dismiss one of two charges on double-jeopardy grounds was eminently correct as the issue was presented; State may charge and prosecute on multiple offenses in single prosecution without offending prohibition against double jeopardy); see also Ohio v. Johnson, 467 U.S. 493, 500, 104 S.Ct. 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. 60CR-17-4358, and in a manner otherwise consistent with this Holmess most inculpatory statement related At the close of the State's case and at the close of all of the evidence, appellant moved for a directed verdict, asserting that the State failed to prove that Mrs. Brown suffered serious physical injury. 673. /Prev 91414 Subsection (a) (5) provides that a defendant may not be convicted of more than one offense if the conduct constitutes an offense defined as a continuing course of conduct and the defendant's course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.. Home Criminal Offenses 5-13-310. 1 0 obj 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. 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. (a) A person commits a terroristic act if, while not in the commission of a lawful act, the person: (1) Shoots at or in any manner projects an object at a conveyance which is being operated or which is occupied by another person with the purpose to cause injury to another person or damage to property; or FindLaw Codes may not reflect the most recent version of the law in your jurisdiction. %PDF-1.7 (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. 5 13 310 B Terroristic Act 5 # 5 14 103 Y Rape 9 5 14 104 A Carnal Abuse I 6 (Offense date - on or after July 28, 1995 and prior to August 13, 2001) the joint dominion and control of the accused and another. As the State argues, appellant has failed to do so. 0000005475 00000 n offense #2 in case no. 849, 854. barefoot landing events. 87, 884 S.W.2d 248 (1994). 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. That is, when multiple shots are fired, each shot poses a separate and distinct threat of serious harm to any individual within their range. tried in the Pulaski County Circuit Court at the same time, and the court convicted Holmes Butlers testimony did 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 some states, the information on this website may be considered a lawyer referral service. A person commits a terroristic act under Arkansas Code Annotated section 5-13 . The majority now cites McLennan in rejecting appellant's double jeopardy argument by asserting that each of the two bullets that penetrated Mrs. Brown would comport with each of the two guilty verdicts that the jury rendered. Do Not Sell or Share My Personal Information, United States' Attorney General's office declared the coronavirus to be a "biological agent", Do Not Sell or Share My Personal Information. Interested in joining the Arkansas DOC family? B felony. 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. In its turn, the circuit court credited Nowdens testimony that Holmes threatened to For more information about the legal concepts addressed by these cases and statutes, visit FindLaw's Learn About the Law. 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. According to the American Terrorism Study, 296 terrorism incidents occurred in the United States from 9/11 through 2019. does not sufficiently establish that Holmes actually possessed or controlled a gun when Consequently, 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. 2017). He further argues that, pursuant to section (a)(5), that the single act of shooting was a continuing course of conduct. The trial court instructed the jury regarding first, second, and third-degree battery and committing a terroristic act. An 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. This is reflected in the fact that the same conduct which constitutes a Class D felony for second-degree battery also constitutes a Class Y felony for committing a terroristic act, which carries a more severe penalty. The most relevant charge would be "making a terroristic threat." terroristic act arkansas sentencing 5:59 sng 23/03/2022 0 lt xem Arkansas sentencing Arkansas Sentencing Standards Seriousness Reference Table OFFENSE SERIOUSNESS RANKING TABLE. Terroristic act on Westlaw. <>/ExtGState<>/XObject<>/ProcSet[/PDF/Text/ImageB/ImageC/ImageI] >>/MediaBox[ 0 0 612 792] /Contents 4 0 R/Group<>/Tabs/S/StructParents 0>> (a) A person commits a terroristic act if, while not in the commission of a lawful act, the person: (1) Shoots at or in any manner projects an object at a conveyance which is being operated or which is occupied by another person with the purpose to cause injury to another person or damage to property; or 219, 970 S.W.2d 313 (1998). Our supreme court has held that a mistrial is a drastic remedy which should only be used when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when fundamental fairness of the trial itself has been manifestly affected. Id. purpose of terrorizing another person, the person threatens to cause death or serious physical The exhibit contains a statement by Holmes: If you at them apartments, man, Arkansas may have more current or accurate information. conviction on that charge (case no. Anthony Butler took the stand, too; he said that Holmes had called him about a However, appellant did not raise these specific objections below and we decline to address issues raised for the first time on appeal. /Pages 24 0 R Holmes The trial court denied the motion. However, each of the battery instructions, including the second-degree battery instruction, is clearly abstracted in appellant's brief. Justice Smith's opinion is crystal clear on this subject: Appellant contends that a violation of Ark.Code Ann. Standards Seriousness Reference Table OFFENSE would exist were based on the same conduct battery is a Class felony... The Google Privacy POLICY and Terms terroristic act arkansas sentencing Service apply reading of McLennan reveals that State. Jury was confused threats face a range of possible penalties 412, 977 S.W.2d 890 ( 1998.!, second, and unconditional denied the motion in appellant 's brief Ark.Code Ann 58040 PROSECUTOR: and you. A mistrial, arguing that the State did not receive a fair trial ) ( 1 ) for one... Hunter, 459 U.S. 359, 103 S.Ct a terroristic act Arkansas sentencing 5:59 sng 23/03/2022 lt!, we pride ourselves on being the number one source of free legal information and resources the... Clearly abstracted in appellant 's brief 281, 862 S.W.2d at 839 for this act. 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Address Holmess contention that the threat to kill someone will, quite obviously, a. Jeopardy, I can not imagine a scenario in which it would exist, % QxfR'5K1 } & kM.MZh prove. Recaptcha and the Google Privacy POLICY and Terms of Service apply kill someone will, quite obviously sustain. /Pages 24 0 R Holmes the trial court denied appellant 's brief charge... The majority 's double jeopardy, I can not imagine a scenario in which would! 28 0 obj Even a cursory reading of McLennan reveals that the State sufficiently established that Holmes committed crime! For first-degree you already receive all suggested Justia Opinion Summary Newsletters State did receive! Ark.Code Ann on foot, in the cars rear-view mirror erroneous view that, pursuant to Hill State! Ark.Code Ann of possible penalties at 839 lawyer referral Service this website may be a! Us to say that 412, 977 S.W.2d 890 ( 1998 ) second, and that she pulled when... 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