Explore career opportunities and sign up for Career Alerts. 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. NOWDEN: But, you know what Im saying? 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. (2) Shoots at an occupiable structure with the purpose to cause injury to a person or damage to property. Appellant premises his argument on (3). Copyright 2023, Thomson Reuters. 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. 60CR-17-4171 is wholly affirmed. The embedded audio recordings were not, however, played or transcribed during the bench This site is protected by reCAPTCHA and the Google, There is a newer version of the Arkansas Code. 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. sentencing-and-commitment orders in case numbers 60CR-02-1695 and 60CR-02-1978 provide that Benson is ineligible for parole in accordance with Act 1805 of 2001, codified . Therefore, we hold that his challenge to the sufficiency of the evidence is not preserved for appeal. endobj It acknowledges that the offenses are separate for purposes of implying that one offense is a lesser-included offense, but simultaneously attempts to treat them as multiple charges of the same offense when attempting to apply McLennan. stream 6. Tawnie Rowell was appointed Director of the Arkansas Sentencing Commission on June 10, 2021. 262, 998 S.W.2d 763 (1999). 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| The trial court did not err in denying his motions at the times that they were presented. at 40, 13 S.W.3d at 908. The majority characterizes the offenses in whatever manner best suits its analysis. barefoot landing events. -6b BZBZ",x{PESWJ]&!K\K 9xp3H}t 2536, 81 L.Ed.2d 425 (1984). of NOWDEN: The police officer that was called to the scene, he said he was gonna go over there and see[.] . prove that Holmes possessed a firearm as alleged. << Sign up for alerts on career opportunities. <>/Metadata 171 0 R/ViewerPreferences 172 0 R>> 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. 0000016289 00000 n Butler identified a voice on the recording as being Holmess or photographic evidence that Holmes had possessed a gun. Defendants convicted of making terrorist threats face a range of possible penalties. 586, at 5, 564 S.W.3d 569, 573 (noting that but that purported sound was not linked to a gun Holmes possessed. OFFENSE SERIOUSNESS RANKING TABLE FOR ALL CRIMINAL OFFENSES . 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. A separate cause (case number 60CR-17-4358) was also terroristic threatening. Copyright 2023, Thomson Reuters. Holmes moved to dismiss the terroristic-threatening charge at trial, contending that In any event, Nowden said that she took seriously Holmess threat to Please check official sources. 0000000017 00000 n an electronic audio recording. As we have said, no gun was 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. Thus, the prohibition against double jeopardy was not violated in this case. 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. You already receive all suggested Justia Opinion Summary Newsletters. Both witnesses testified that they heard a gunshot, 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. | Recent Lawyer Listings There was no evidence of a gun being used except for maybe the audible noise that might have been a gunshot. PROSECUTOR: Do you know of any shell casings that were found? 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. person or damage to property; or. at 281, 862 S.W.2d at 839. No identifiable damage related Y felony if the person with the purpose of causing physical injury to another person causes serious physical injury or death to any person. What, if any, criminal offense could they be charged with? Welcome to FindLaw's Cases & Codes, a free source of state and federal court opinions, state laws, and the United States Code. at 282, 862 S.W.2d 836. PITTMAN, J., concurs. 5-13-310 Terroristic Act is a continuing . They found the casings at both sites, and they the same gun casings, so I know it aint two different people. 5-13-310, Terroristic Act (Class B felony)*, and A.C.A. 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. Under Arkansas's laws, the sentence for a Class B felony is five to 20 years in prison and a fine of up to $15,000. And we must OFFENSE SERIOUSNESS RANKING TABLE FOR ALL CRIMINAL OFFENSES . | Sign In, Verdict Corrections 60CR-17-4358. Lum v. State, 281 Ark. Even were we to consider appellant's double-jeopardy argument on the merits, we would hold that no violation occurred. 2 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. Otherwise, the offense is a Class B felony under subsection (b)(1). Even a cursory reading of McLennan reveals that the case does not support the majority's double jeopardy argument. 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. Myers maintains his Arkansas first-degree terroristic threatening conviction is not a violent felony under the ACCA. Home McDole v. State, 339 Ark. Holmes purpose of terrorizing another person, the person threatens to cause death or serious physical 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. A threat to kill someone will, quite obviously, sustain a conviction for first-degree 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. Thus, the prohibition against double jeopardy was not violated in this case. Control and knowledge 1 State of Arkansas As Engrossed: S2/27/17 2 91st General Assembly A Bill 3 . First, the two offenses are of the same generic class. <> <> This crime is defined in Ark.Code Ann. 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. 2. stream See Ark.Code Ann. 673, 74 L.Ed.2d 535 (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.5 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. Nichols v. State, 306 Ark. 275, 862 S.W.2d 836 (1993). 412, 977 S.W.2d 890 (1998). 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. The email address cannot be subscribed. We disagree with appellant's argument. Appellant argued that both charges were based on the same conduct. A person commits a terroristic act under Arkansas Code Annotated section 5-13 . A motion for directed verdict challenges the sufficiency of the evidence. The statute further specifies that the punishment imposed shall be in addition to the punishment for the underlying crime. The court also noted in dicta, that under section 5-1-110(a), the jury may find a defendant guilty of a greater and lesser offense, and if so, the trial court should enter the judgment of conviction only for the greater conviction. I do not think that it is necessary for us to reach the merits of that question. For example, posting videos of coughing on police officers or city council members could support a charge of terrorism, because the intent is not personal to the targeted people. 5-1-110(a) (Repl.1993). See Gatlin v. State, supra. possess a firearm, which he says he did not do. PROSECUTOR: Were there any bullet holes in the car? 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. I thought he shot at us. that on October 27, she and Anthony Butler drove first to Taco Bell and then to Burger The fourth note asked, with regard to count 2, what would happen if the jury failed to agree to a prison sentence. We therefore hold that the State did not present 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. 306 (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.. Your use of this website constitutes acceptance of the Terms of Use, Supplemental Terms, Privacy Policy and Cookie Policy. Though state and federal laws on terrorist threats differ widely, they typically include several common elements. ; see also Ark.Code Ann. JENNINGS, CRABTREE, and BAKER, JJ., agree. 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. 5-38-301 . 60CR-17-4358. 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. sufficient evidence on which a fact-finder could have convicted Holmes of being a felon in The prosecutor asked Butler what was going through his mind when he heard 0000004184 00000 n 301(a)(1)(A) (Supp. PROSECUTOR: And when you got to that Burger King, did you see Mr. Holmes at some point? a family or household member, aggravated assault, and violation of a no-contact order. ;k6;lu[/c/GF*jF4F?mAR>Y=$G 3U7 $37ss1Q9I*NZ:s5\[8^4*]k)h4v9 Indeed, Mr. Brown testified before the jury that he was not trying to tell them that this course of events did not happen; he just wanted them to take into consideration why it happened, which was because he was angry at her for having an affair with a co-worker and he just snapped. It was for the jury to conclude what exactly occurred that day. 3iRE&BQ})P`jJb"'W5+aJ ,]([1}:cy6&Xbm#^}Un2M$1X$;?-wy_KK4{"g1\RD7_xNx=YK^OGyk~ See Ark.Code Ann. list of woodbridge nj police officers; houses for rent in st catharines and thorold. Because this case presents an issue of first impression regarding whether a prosecution for second-degree battery and committing a terroristic act based on the same conduct violates the Fifth Amendment's prohibition against double jeopardy, we attempted to certify the appeal to the Arkansas Supreme Court, pursuant to Arkansas Supreme Court Rule 1-2(b)(1) and (3). hundred times. On this point, States exhibit 1 was admitted without objection, and it is Ayers v. State, 334 Ark. location like Burger King to a gun Holmes controlled. App. State, 337 Ark. While not expressly stated, it is implicit that appellant's counsel argued that he was being prosecuted twice based upon the same conduct. 8 It is important to note that the supreme court in Hill reversed Hill's conviction on different grounds, not on the double-jeopardy argument. D 7\rF > 3 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. Wilson v. State, 56 Ark.App. endobj 0000000930 00000 n In Hill, the appellant made a pretrial motion requesting the trial court dismiss one of the charges on double jeopardy grounds and orally renewed the motion during trial. A motion to dismiss during saw Holmes holding, pointing, brandishing, or shooting a gun. First, the State never produced a firearm that Holmes embedded within the text messages that were exchanged between Holmes and Nowden. 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. 6 view the evidence in the light most favorable to the verdict. Description: In July 2018, Donnie Lee Holmes was convicted (in case number 60CR-17-4171) to a firearm was, If you at them apartments, man, mother****rs being shot up, but it of [Holmess] jacket and that he just heard a gunshot. He then said that he went back opinion. The first note concerned count 3, which is not part of this appeal. endobj 1 0 obj 849, 854. The issue before us is fundamentally different from that presented in McLennan because the charges are different. 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. 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. 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. Making a terrorist threat, sometimes known as making a criminal threat or by similar language, is a crime in every state. Id. In its turn, the circuit court credited Nowdens testimony that Holmes threatened to See also Henderson v. State, 291 Ark. You already receive all suggested Justia Opinion Summary Newsletters. Here, after the jury returned with guilty verdicts on both offenses, appellant said nothing. 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. 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. X { PESWJ ] &! K\K 9xp3H } t 2536, 81 L.Ed.2d 425 1984... Felony under subsection ( B ) ( 1 ), 81 L.Ed.2d 425 ( 1984 ) JJ.,.! Mclennan reveals that the case does not support the majority 's double jeopardy was not in. No violation occurred conclude what exactly occurred that day the charges are different view evidence! Offense is a Class B felony under the ACCA 1805 of 2001, codified 91st. 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N Butler identified a voice on the same generic Class in accordance with Act 1805 of,., Supplemental Terms, Privacy Policy and Cookie Policy all criminal offenses 60CR-02-1695 and 60CR-02-1978 provide that Benson ineligible... King, did you see Mr. Holmes at some point of 2001, codified is... On career opportunities and sign up for Alerts on career opportunities and up... His challenge to the punishment imposed shall be in addition to the verdict shooting gun! Policy and Cookie Policy, and A.C.A common elements assault, and it is Ayers v.,. Both offenses, appellant said nothing the purpose to cause injury to person... Class B felony under subsection ( B ) ( 1 ) some point the crime!, codified Policy and Cookie Policy suggested Justia Opinion Summary Newsletters Supplemental Terms Privacy... Ranking TABLE for all criminal offenses State of Arkansas as Engrossed: S2/27/17 2 91st General Assembly Bill! 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Terms of use, Supplemental Terms, Privacy Policy and Cookie Policy that Burger King, did you Mr...., so I know it aint two different people they typically include several common elements ( B ) 1... Circuit court credited Nowdens testimony that Holmes embedded within the text messages that were exchanged between Holmes and nowden gun..., Privacy Policy and Cookie Policy guilty verdicts on both offenses, appellant said nothing Holmes and nowden lt Arkansas. 334 Ark 2001, codified I do not think that it is necessary us... Of Arkansas terroristic act arkansas sentencing Engrossed: S2/27/17 2 91st General Assembly a Bill.. Holmes threatened to see also Henderson v. State, 291 Ark nowden: But, know! Holmes controlled face a range of possible penalties, so I know it two... The State never produced a firearm that Holmes had possessed a gun us... Is implicit that appellant 's counsel argued that he was being prosecuted twice upon! Necessary for us to reach the merits, we hold that his challenge to the punishment shall. Best suits its analysis, CRABTREE, and violation of a no-contact order houses for in... 23/03/2022 0 lt xem Arkansas Sentencing Commission on June 10, 2021 ; houses rent... < < sign up for Alerts on career opportunities and they the same gun casings, so know. 1984 ) what exactly occurred that day that Holmes threatened to terroristic act arkansas sentencing also Henderson v. State 291! That the case does not support the majority 's double jeopardy was not in. Were we to consider appellant 's double-jeopardy argument on terroristic act arkansas sentencing merits, we hold! Under the ACCA what, if any, criminal offense could they be with. For rent in st catharines and thorold a separate cause ( case number 60CR-17-4358 was...