Thompson v. State
464 S.W.3d 111
Ark.
2014
Check Treatment

Jeremy Clay THOMPSON, Appellant v. STATE of Arkansas, Appellee

No. CR-13-1067

Supreme Court of Arkansas.

Opinion Delivered October 9, 2014

2014 Ark. 413 | 111

counsel was ineffective. Appellant contended that Vance‘s statement was the same as that of Clarence Hayes, and the jury should have been made aware that the statements were the same inasmuch as the verdict rested on the credibility of the prosecution‘s witnesses. The allegation does not satisfy the Strickland standard for establishing that counsel was ineffective because it does not demonstrate that there is a reasonable probability that, but for counsel‘s failure to question Vance about his statement, the fact-finder would have had a reasonable doubt respecting guilt, i.e., the decision reached would have been different absent the error. In light of the totality of the evidence, even if Vance and Hayes had made the same statement, the allegation is not sufficient to show that the outcome of the trial would have been different had the jury known about the statements.

In his brief, appellant adds to the allegation concerning Vance‘s statement a claim that private papers were illegally seized and that counsel should have investigated the seizure. He also raises for the first time the arguments that the State failed to disclose the video tape before trial and that counsel should have moved to sever the felon-in-possession-of-a-firearm charge. Neither the additional claims concerning Vance‘s statement nor the claims regarding the video tape and counsel‘s failure to move to sever the charge will be considered in this appeal. Because arguments raised for the first time on appeal could not have been considered by the trial court, such arguments will not be addressed by this court in its review of the trial court‘s order. ; ; .

Appellant‘s claims in the petition and the amended petition were not supported by facts sufficient to overcome the presumption that counsel‘s conduct was within the wide range of reasonable, acceptable professional assistance. As appellant did not meet his burden of demonstrating that counsel made specific errors that prejudiced the defense, the trial court did not err in declining to grant relief under Rule 37.1.

Affirmed.

Courtney Hudson Goodson, J., issued concurring opinion in which Baker, J., joined.

J. Brent Standridge, Saline County Deputy Public Defender, for appellant.

Dustin McDaniel, Att‘y Gen., by: Lauren Elizabeth Heil, Ass‘t Att‘y Gen., for appellee.

DONALD L. CORBIN, Associate Justice

Appellant Jeremy Clay Thompson appeals the order of the Saline County Circuit Court convicting him of the offense of failure to appear, a Class C felony, and sentencing him to a term of imprisonment of seven years. On appeal, he argues that the circuit court erred in denying his motion for a directed verdict because there was insufficient evidence to support his conviction because he had not yet been charged with a crime when he failed to appear. We accepted certification of this case from the Arkansas Court of Appeals because it involves an issue of first impression and an issue needing clarification of the law; hence, our jurisdiction is pursuant to Arkansas Supreme Court Rule 1-2(b)(1) and (5) (2014). We reverse and dismiss.

Appellant was arrested on August 21, 2012, for the felony offense of theft of property. He was arrested pursuant to a warrant issued by the Saline County Circuit Court on August 17, 2012.1 Appellant signed an “Appearance Agreement” on August 22, 2012, agreeing to appear in the Saline County District Court on September 4, 2012, at 1:00 p.m. and agreeing to pay an unsecured cash bond of $2,500, which required him to pay $250 that day. This agreement was signed by Appellant and the Saline County sheriff. Appellant did not appear in district court that day as required, and the Saline County district judge issued an arrest warrant for Appellant on the theft charge and a failure-to-appear charge. The State subsequently filed a felony information on September 26, 2012, alleging that Appellant committed the offenses of theft of property, a Class D felony, failure to appear, a Class C felony, and was a habitual offender. After Appellant was arrested again, he appeared before a district judge and was released by order of the district court pursuant to a “Pre-Trial Release Order,” entered on November 21, 2012. Pursuant to this order, Appellant was required to post a $15,000 sheriffs bond and was to appear in district court on December 11, 2012. This order also advised Appellant that a violation of the order could “result in sanctions including arrest, imposition of additional costs and/or revocation of Defendant‘s release.”

Appellant again appeared in district court on the required date. Thereafter, on December 13, 2012, the district court entered an appearance order stating that Appellant had been informed of the pending charges, had waived a formal reading, had entered a plea of not guilty, and had been ordered to appear in the Saline County Circuit Court on December 17, 2012.

A jury trial was held on June 5, 2013, at which time the State nol-prossed the theft-of-property charge. Following the presentation of the State‘s evidence, Appellant moved for a directed verdict. In so doing, Appellant argued that the State failed to meet its burden of proof because at the time of the alleged failure to appear, Appellant had not been formally charged with a criminal offense. The circuit court denied the motion. Appellant renewed his directed-verdict motion at the close of all the evidence, but the circuit court again denied it. Prior to the court instructing the jury, Appellant proffered a nonmodel jury instruction setting forth the offense of failure to appear, which included an element that a formal charge was pending at the time Appellant failed to appear. The circuit court declined to give this instruction. The jury found Appellant guilty and sentenced him as a habitual offender to a term of seven years’ imprisonment. This appeal followed.

Appellant‘s sole point on appeal is that the circuit court erred in denying his motion for a directed verdict because he could not be convicted of the offense of felony failure to appear when he had not yet been charged with any criminal offense. The State counters that the circuit court properly denied Appellant‘s motion because, even assuming that there must be a felony charge pending at the time Appellant failed to appear, the theft-of-property charge was pending in the sense that there was a pending offense awaiting the filing of formal charges.2

On appeal, we treat a motion for directed verdict as a challenge to the sufficiency of the evidence. See . In reviewing a challenge to the sufficiency of the evidence, this court determines whether the verdict is supported by substantial evidence, direct or circumstantial. See id. Substantial evidence is evidence forceful enough to compel a conclusion one way or the other beyond suspicion or conjecture. See id. When a defendant challenges the sufficiency of the evidence that led to a conviction, the evidence is viewed in the light most favorable to the State. See .

The issue in this appeal turns on the language found in the failure-to-appear statute, codified at Arkansas Code Annotated section 5-54-120. The version of the statute, which is applicable in this case, provided as follows:

(a) A person commits the offense of failure to appear if he or she fails to appear without reasonable excuse subsequent to having been:

....

(2) Lawfully set at liberty upon condition that he or she appear at a specified time, place, and court.

(b) Failure to appear is a Class C felony if the required appearance was in regard to a pending charge or disposition of a felony charge either before or after a determination of guilt of the charge.

Ark.Code Ann. § 5-54-120(a)(2), (b) (Supp. 2011).

Clearly, under section 5-54-120(b), the offense of failure to appear can only be a Class C felony if the required appearance was “in regard to a pending charge or disposition of a felony charge either before or after a determination of guilt of the charge.” Appellant asserts that the word “pending” as used in section 5-54-120(b) necessarily contemplates that a charge has already been filed against an accused. The State counters that such an interpretation defies basic rules of statutory construction.

This court reviews issues of statutory interpretation de novo, as it is for this court to decide the meaning of a statute. See . We construe criminal statutes strictly, resolving any doubts in favor of the defendant. See id. We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. See id. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. See id.

Under these rules, we must first look to the plain language of the statute and only then, if the language is ambiguous, do we resort to the rules of statutory interpretation. In Webster‘s New World Dictionary 998 (3d College ed. 1988), the word “pending” in its adjective form is defined as “not decided, determined, or established.” The definition uses the ex-ample “a pending lawsuit” to illustrate the word‘s meaning. Similarly, Black‘s Law Dictionary defines “pending” in its adjective form as “[r]emaining undecided; awaiting decision.” Black‘s Law Dictionary 1248 (9th ed. 2009). Under these two definitions, it is clear that a “pending charge,” as used in section 5-54-120(b), means a charge that has been filed but not yet adjudicated.

The State acknowledges the aforementioned definitions but argues that “pending” as defined in Black‘s is also “commonly understood to refer to events—such as the filing of formal charges—after a case has been initiated by arrest.” See Black‘s Law Dictionary 1248 (9th ed. 2009). But, the State fails to acknowledge the fact that its preferred definition of “pending” applies when the word is used as a preposition, such as “pending the filing of charges.” The word “pending” as used in section 5-54-120(b) is used as an adjective to modify the word “charge.” Moreover, we do not agree that interpreting “pending” to mean a charge that has already been filed would render the rest of the language in section 5-54-120(b) superfluous. The remainder of that provision, “disposition of a felony charge either before or after a determination of guilt of the charge,” simply specifies that an accused must appear at proceedings when there is going to be a disposition of a felony charge, whether it be a trial, dismissal, or other adjudication of a felony charge (before a determination of guilt) or sentencing (after a determination of guilt). Accordingly, the circuit court erred in denying Appellant‘s motion for a directed verdict because there was not sufficient evidence supporting his conviction.3 We therefore reverse and dismiss his conviction and sentence.

Reversed and dismissed.

Baker and Goodson, JJ., concur.

Courtney Hudson Goodson, Justice, concurring.

I agree that the evidence was insufficient to support the conviction in this case because the State failed to prove that Thompson had a pending charge against him; however, I write to clarify that a “pending charge” is not an element of the offense of failure to appear. Rather, the State was required to prove the existence of a “pending charge” because it sought to classify Thompson‘s charge as a class C felony under the statute.

The plain language of the statute governing the offense of failure to appear establishes the elements of that offense and states,

A person commits the offense of failure to appear if he or she fails to appear without reasonable excuse subsequent to having been:

(1) Cited or summonsed as an accused; or

(2) Lawfully set at liberty upon condition that he or she appear at a specified time, place, and court.

Ark.Code Ann. § 5-54-120(a) (Supp. 2013). Notably, the statutory elements do not incorporate the phrase “pending charge.” Indeed, the plain language of the statute indicates that the General Assembly did not intend to require a pending charge in all cases of failure to appear because it provided two distinct avenues for the offense to occur. First, a person can be convicted of failure to appear pursuant to subsection (a)(1) where he or she has been “cited or summonsed as an accused” and fails to appear without reasonable excuse. This subsection ostensibly covers those instances where the defendant has been formally charged by the State. The statute provides an additional possibility for conviction in subsection (a)(2), namely where a person has been “lawfully set at liberty upon condition that he or she appear at a specified time, place, and court.” As subsection (a)(1) covers those instances in which a person has been formally charged, subsection (a)(2) necessarily must mean something different. It is a fundamental principle of statutory interpretation that this court construes the statute so that no word is left void, superfluous, or insignificant, and this court gives meaning and effect to every word in the statute, if possible. ; see also . Thus, the statute contemplates that a person can commit the offense of failure to appear where there has been no formal charge as long as that person has been lawfully set at liberty upon condition that he or she appear at a specified time, place, and court.

Subsection (b) deals with classification of the failure-to-appear offense and provides that an offense is a class C felony “if the required appearance was in regard to a pending charge or disposition of a felony charge either before or after a determination of guilt of the charge.” Ark.Code Ann. § 5-54-120(b) (Supp. 2013). Factors relating to classification of a crime are “relevant only to the determination of sentence” and not elements of the crime itself. . Such classification factors must be established by a preponderance of the evidence. See . In the instant case, the State sought to classify Thompson‘s offense as a class C offense and thus was required to establish the existence of a pending charge, which it failed to do. As a result, I agree that the evidence was insufficient to support Thompson‘s conviction for the offense of class C failure to appear.

Baker, J., joins.

Notes

1
At the bottom of this arrest warrant there is a “Return of Service” that was to be completed by the sheriff or deputy sheriff upon Appellant‘s arrest and includes a blank to fill in the amount of bail ordered, as well as a blank for the signature of a judge. This was all left blank on Appellant‘s arrest warrant.
2
We disagree with the State‘s assertion that Appellant‘s argument is not preserved for our review because “the jury was not instructed to consider the pendency of the theft charge as an element of failure to appear.” The issue of which instructions were given is irrelevant to a review of a directed-verdict motion, because that motion is decided by the circuit court before the case is submitted to a jury.
3
Although the issue was not raised by Appellant, we note our concern with the process surrounding Appellant‘s arrest and release. The “Return of Service” on the initial arrest warrant was never completed nor does it bear the required signatures of the sheriff or a judge. The “Appearance Agreement” signed by Appellant, which was the basis for the charge of failure to appear, was signed only by Appellant and the Saline County sheriff. Cheryl Spade, the Saline County district court clerk, testified at trial that sometimes an accused is “bonded out by the Saline County Sheriff‘s Department in advance and they set the date, and that‘s what happened in this case.” Nothing in our Rules of Criminal Procedure allow the release of an arrested person by anyone other than a judicial officer. See Ark. R.Crim. P. 9.1, 9.2 (2012).
Read the detailed case summary