James BROWN v. STATE of Arkansas
CA CR 99-1092
Court of Appeals of Arkansas
June 27, 2001
47 S.W.3d 314
Divisions I, II, and III
Mark Pryor, Att‘y Gen., by: Jeffrey Weber, Ass‘t Att‘y Gen., for appellee.
JOHN B. ROBBINS, Judge. James Brown appeals from his convictions for second-degree battery and committing a terroristic act. His points for reversal are: 1) his convictions on both charges arose from the same conduct and constitute double jeopardy, 2) the State failed to prove that he caused serious physical injury to the victim, and thus the trial court erred in denying his motions for directed verdict, and 3) the trial court erred in denying his motion for a mistrial. We find no error and affirm.
On October 27, 1997, appellant allegedly fired multiple shots from a rifle into a van that was being driven by his wife, Shirley Brown. 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
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. He also moved at the close of the evidence to compel the State to elect between counts 1 and 2 so as to identify which alleged offense it wished to proceed on with regard to Mrs. Brown. Appellant argued that both charges were based on the same conduct. The trial court denied appellant‘s motions.
The trial court instructed the jury regarding first, second, and third-degree battery and committing a terroristic act. The jury retired, deliberated, and found appellant guilty of second-degree battery and committing a terroristic act. During the sentencing phase, the jury sent several notes to the trial judge questioning its sentencing options. Appellant moved for a mistrial, arguing that the jury was confused. The trial court denied the motion. 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.
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. See Byrum v. State, 318 Ark. 87, 884 S.W.2d 248 (1994). Appellant argued in his motion for a directed verdict that the State failed to prove that he caused serious physical injury to Mrs. Brown, proof of which was necessary to sustain a conviction for both first-degree battery and a Class Y conviction for committing a terroristic act. 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.
We agree. Appellant was originally charged with first-degree battery, but the jury was instructed with regard to first, second, and third-degree battery. First-degree battery requires proof of purposefully causing serious physical injury to another by means of a deadly weapon. See
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. See Moore v. State, 330 Ark. 514, 954 S.W.2d 932 (1997); Webb v. State, 328 Ark. 12, 941 S.W.2d 417 (1997). 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. Therefore, we hold that his challenge to the sufficiency of the evidence is not preserved for appeal.
Similarly, we hold that appellant‘s argument that his convictions for both committing a terroristic act and second-degree battery violate
Appellant argues in his brief that the second-degree battery statute specifically prohibits individuals with various mental states from causing injury to other persons, whereas the statute prohibiting the commission of a terroristic act prohibits the general act of shooting or projecting objects at structures and conveyances in order to protect both the property and the occupants. He further argues that, pursuant to
Sufficiency of the Evidence
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. This crime is defined in
(a) For purposes of this section, a person commits a terroristic act when, while not in the commission of a lawful act:
(1) He shoots at or in any manner projects an object with the purpose to cause injury to persons or property at a conveyance which is being operated or which is occupied by passengers[.]
. . . .
(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.
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.”
Double Jeopardy
At the close of the State‘s case, appellant‘s attorney made the following argument:
[W]e are at the point in this trial where the State must choose whether it‘s going forth with battery in the first degree and terroristic act. 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.
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.
At the conclusion of the evidence, appellant‘s attorney renewed his plea to the trial judge:
We would move to dismiss, again and renew our motion stating that the terroristic act, the count describing the terroristic act, is a duplicate or duplicative of the first degree battery charges in-on the facts of this case; that in effect we are trying this man, we would be submitting it to the jury on two counts that would require the same identical facts for a conviction.
. . . .
[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.
While not expressly stated, it is implicit that appellant‘s counsel argued that he was being prosecuted twice based upon the same conduct. He maintains that the offense of committing a terroristic act includes all of the elements of committing second-degree battery.2 Therefore, he argues, second-degree battery is a lesser-included offense of committing a terroristic act, and he cannot be prosecuted under both charges.
We disagree with appellant‘s argument. 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. Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996). However, a defendant so charged cannot be convicted of both the greater and the lesser offenses. Id.; see also
Even were we to consider appellant‘s double-jeopardy argument on the merits, we would hold that no violation occurred. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects a defendant from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. See Muhammed v. State, 67 Ark. App. 262, 998 S.W.2d 763 (1999). Appellant premises his argument on (3). It appears that appellant presumes that the only finding that could reasonably be reached from the evidence was that Mrs. Brown was shot only once. Therefore, for this one act, appellant is being punished twice.
We disagree because the State, in both its opening and closing statements, told the jury that it intended to prove, and did prove, that Mr. Brown fired multiple shots at Mrs. Brown‘s van and that Mrs. Brown was personally hit twice. The State introduced evidence of this through the testimony of the victim, Mrs. Brown. 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.
Our supreme court held in McLennan v. State, 337 Ark. 83, 987 S.W.2d 668 (1999), that committing a terroristic act is not a continuous-course-of-conduct crime. That is, when multiple shots are fired, each shot poses a separate and distinct threat of serious harm to any individual within their range. Each of the defendant McLennan‘s shots required a separate conscious act or impulse in pulling the trigger and was, accordingly, punishable as a separate act. Id. 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. 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. at 89.
Motion for Mistrial
During the sentencing phase of the trial, the jury sent four notes to the trial court. The first note concerned count 3, which is not part of this appeal. The second note asked what the minimum fine was for first-degree battery and committing a terroristic act. 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. The fourth note asked, with regard to count 2, what would happen if the jury failed to agree to a prison sentence. Appellant moved for and renewed a motion for mistrial based on the jury‘s confusion with regard to its sentencing options, also arguing that the notes indicated that he was not receiving a fair and impartial trial. The trial court denied his motions.
Appellant maintains that the jury tried to refuse sentencing and attempted to sentence him outside the statutory minimums. 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. 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. He argues this is “compelling evidence” that he did not receive a fair trial. 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. See Gatlin v. State, 320 Ark. 120, 895 S.W.2d 526 (1995).
It was appellant‘s burden to produce a record demonstrating that he suffered prejudice. See Gatlin v. State, supra. As the State argues, appellant has failed to do so. The trial court apparently refused to inform the jury that they could suspend appellant‘s sentence or place him on probation. However, the trial court did not err in this regard, as a court cannot suspend imposition of a sentence or place a defendant on probation for Class Y felonies. See
It is obvious from the record that the jury was sympathetic toward appellant and was searching for a legal method by which to show him leniency. 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. Appellant cannot demonstrate prejudice under these circumstances. Therefore, we hold that the trial court did not err in refusing to grant appellant‘s motion for a mistrial.
Affirmed.
JENNINGS, CRABTREE, and BAKER, JJ., agree.
PITTMAN, J., concurs.
HART, GRIFFEN, NEAL, and ROAF, JJ., dissent.
JOHN MAUZY PITTMAN, Judge, concurring. I concur in the decision to affirm appellant‘s convictions. However, I do not join that part of the majority opinion that applies McLennan v. State,
Appellant argues under section (C) of his first point that the trial court erred in submitting both alleged offenses to the jury, and in ultimately entering judgments of conviction and sentences for both, because the battery was a lesser-included offense of the terroristic act. 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.1 However, appellant was entitled to neither form of relief. 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
The majority opinion purports to address appellant‘s double jeopardy argument by a reasoning process that is as fanciful as it is convoluted. 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. That holding is based on the erroneous view that, pursuant to Hill v. State, 314 Ark. 275, 862 S.W.2d 836 (1996), appellant‘s motions were untimely because they were made before the jury returned guilty verdicts on both charges. However, Hill does not stand for the proposition that an appellant‘s constitutional double-jeopardy argument is procedurally barred because he does not wait until the jury returns both verdicts to move the trial court to limit the conviction to only one charge.
The majority asserts that appellant‘s double jeopardy argument on appeal is procedurally barred. 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. 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.
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.”
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. 83, 987 S.W.2d 668 (1999). Even a cursory reading of McLennan reveals that the case does not support the majority‘s
Appellant contends that a violation of
Ark. Code Ann. § 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. Multiple shots, particularly where multiple persons are present, pose a separate and distinct threat of serious harm for each shot to any individual within their range. Moreover, had appellant fired his weapon and injured or killed three people there is no question that multiple charges would ensue. Each of appellant‘s shots required a separate conscious act or impulse in pulling the trigger and is accordingly punishable as a separate offense.
Id. at 337 Ark. 89, 987 S.W.2d at 671-72 (emphasis added). 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. Thus, the prohibition against double jeopardy was not violated in this case.”
The issue before us is fundamentally different from that presented in McLennan because the charges are different. When Justice Smith wrote in McLennan that “there is no question multiple charges would ensue,” he plainly referred to multiple counts of the same terroristic act charge, not separate charges for entirely different offenses. The appellant in this case was not convicted of multiple counts of committing a terroristic act with regard to shooting his wife. He was charged with first-degree battery, a Class B felony (count 1), and committing a terroristic act, a Class Y felony (count 2). He was convicted of second-degree battery, plainly a lesser-included-offense of first-degree battery. 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 majority‘s reasoning in this regard is untenable for at least two reasons. First, the majority appears to set new precedent without expressly doing so. In addition, if second-degree battery is a lesser-included offense of committing a terroristic act, as the majority implies, then the majority must concede that appellant‘s double jeopardy rights have been violated because appellant clearly could not be convicted of both offenses, as the majority opinion acknowledges in citing Hill v. State, 325 Ark. 419, 931 S.W.2d 64 (1996).
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. The majority states: “Thus, each of the two bullets that penetrated Mrs. Brown would comport with each of the two guilty verdicts that the jury rendered. 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.
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 majority deems appellant‘s double jeopardy argument procedurally barred because his motions to compel the State to elect which charge it would proceed upon were untimely. Hill v. State, supra, clearly does not stand for the proposition that the majority asserts. Moreover, the majority analyzes appellant‘s double jeopardy challenge on the merits using the assumption that second-degree battery is a lesser-
Further, the majority completely fails to apply the correct legal standard, because it failed to determine the legislative intent governing a defendant‘s conviction under both statutes at issue in this case. The Double Jeopardy Clause of the Fifth Amendment to the United States Constitution protects a defendant from: (1) a second prosecution for the same offense after acquittal; (2) a second prosecution for the same offense after conviction; and (3) multiple punishments for the same offense. See Muhammed v. State, 67 Ark. App. 262, 998 S.W.2d 763 (1999). The applicable rule under Blockburger v. United States, 284 U.S. 299, 304 (1932), is that:
where the same act or transaction constitutes a violation of two distinct statutory provisions, the test to be applied to determine whether there are two offenses or only one is whether each provision requires proof of an additional fact which the other does not.... ‘A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt the defendant from prosecution and punishment under the other.’
(Citations omitted.) Appellant was convicted of second-degree battery and committing a terroristic act. 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.
A person commits second-degree battery under
(a)(1) With the purpose of causing physical injury to another person, he causes serious physical injury to any person;
(a)(3) He recklessly causes serious physical injury to another person by means of a deadly weapon.
Second-degree battery is a Class D felony. See
A person commits a terroristic act under
The offense of committing a Class Y terroristic act requires an additional element of proof beyond what must be shown to establish second-degree battery. This is because the State must show serious physical injury and the additional element of firing into a conveyance or occupiable structure. 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.
Clearly, a person can commit a Class B terroristic act without committing second-degree battery because one commits a Class B terroristic act without causing physical injury or serious physical injury to a person. 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. See
The converse is not true. Second-degree battery does not require proof of an additional element that committing a Class Y terroristic act does not require. 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. However, this does not
Our inquiry does not end simply because two statutes punish the same conduct. The Supreme Court has stated, “Because the substantive power to prescribe crimes and determine punishments is vested with the legislature, the question under the Double Jeopardy Clause [of] whether punishments are ‘multiple’ is essentially one of legislative intent[.]” Ohio v. Johnson, 467 U.S. 493, 499 (1984). 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.
In Rowbottom, our supreme court held that a defendant‘s conviction for possession of drugs and for simultaneous possession of drugs and firearms does not constitute double jeopardy. Citing Missouri v. Hunter, 459 U.S. 359 (1983), the Rowbottom court stated that when the same conduct violates two statutory provisions, the issue is whether the General Assembly intended for the two offenses to be separate offenses.1 The Rowbottom court held that the intent of the General Assembly was clear because the legislature enacted a statute declaring its intent prohibiting the simultaneous possession of drugs and firearms.
Here, the legislative intent is not clear. 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. First, the two offenses are of the same generic class. 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. See Ritchie v. State, 31 Ark. App. 177, 790 S.W.2d 919 (1990). 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. 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.
Second, while there is no significant language indicating the legislature‘s intent regarding the second-degree battery statute, the emergency clause of 1979 Arkansas Act 428, Section 3, which amended the terroristic act statute, states that the criminal punishment for sniping into cars should be increased immediately to discourage further sniping incidents. 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.
The effects of today‘s decision may be far-reaching.2 The federal Constitution provides a floor below which our fundamental rights do not fall. The majority opinion lowers that floor with regard to the right against double jeopardy and reduces the protection against double jeopardy to a mere legal fiction because it allows the State to punish a person under two different statutes for the same conduct, absent a clear legislative rationale for doing so. If
I am authorized to state that Judges HART, NEAL, and ROAF join in this opinion.