This post examines an opinion from the Arkansas Supreme Court: Hinton v. State, 2015 WL 9259401 (2015). The court begins by explaining that on September 22, 2014,
a Pulaski County
jury found appellant, James E. Hinton III, guilty of aggravated robbery, theft
of property, and possession of a defaced firearm. He was sentenced to ten,
five, and five years' imprisonment, respectively, with the sentences to run
concurrently. Additionally, Hinton was charged as a habitual offender, and each
conviction was enhanced by five years pursuant to Arkansas Code Annotated § 16–90–120. Accordingly, Hinton was
sentenced to a total of fifteen years' imprisonment.
Hinton v. State,
supra.
The Supreme Court then went on to explain that HInton
filed
his timely notice of appeal. The court of appeals certified Hinton's appeal to
this court. Our jurisdiction is pursuant to Arkansas Supreme Court Rule1–2(b)(1), (5), and (6) (2015). Hinton presents two points on appeal: (1) the
circuit court erred in denying his motion for directed verdict regarding the
charge of Class B felony theft of property because the State failed to
introduce evidence that Hinton obtained the property by threat of serious
physical injury; and (2) Hinton's sentence is illegal because the
firearm-enhancement statute, Arkansas Code Annotated § 16–90–120, cannot
be employed when the underlying felony necessarily involves possession of a
firearm.
Hinton v. State,
supra. The court then concluded the
prefatory section of its opinion by summarizing the facts in the case:
Hinton arranged to buy a laptop
computer from a college student. While armed with a pistol, Hinton and his
accomplice arrived to purchase the laptop, then without paying for it, grabbed
the laptop and took off. Immediately after the laptop was grabbed from the
seller, law enforcement was notified. A foot chase ensued, Hinton was
apprehended, and the laptop and firearm were recovered. The jury convicted
Hinton as set forth above, and this appeal followed.
Hinton v. State,
supra.
The court then took up Hinton’s first argument on appeal,
i.e., that “the circuit court erred in denying his motion for directed verdict
regarding the charge of Class B felony theft of property because the State
failed introduce evidence that Hinton obtained the property by threat of
serious physical injury.” Hinton v. State,
supra. The court explained that
[w]e treat a motion for a directed
verdict as a challenge to the sufficiency of the evidence. Whitt v. State, 365
Ark. 580, 232 S.W.3d 459 (Arkansas Supreme Court 2006). When reviewing a
challenge to the sufficiency of the evidence, this court assesses the evidence
in the light most favorable to the State and considers only the evidence that
supports the verdict. Gillard v. State, 366 Ark. 217, 234
S.W.3d 310 (Arkansas Supreme Court 2006). We will affirm a judgment of
conviction if substantial evidence exists to support it. Gillard v. State,
supra.
Substantial evidence is evidence which
is of sufficient force and character that will, with reasonable certainty,
compel a conclusion one way or the other, without resorting to speculation or
conjecture. Ricks v. State, 316 Ark. 601, 873 S.W.2d 808 (Arkansas
Supreme Court 1994). We need consider only that testimony which supports the
verdict of guilty. Thomas v. State, 312 Ark. 158, 847 S.W.2d
695 (Arkansas Supreme Court 1993). Finally, the credibility of witnesses is an
issue for the jury and not the court. Burley v. State, 348 Ark.
422, 73 S.W.3d 600 (Arkansas Supreme Court 2002). The trier of fact is free to
believe all or part of any witness's testimony and may resolve questions of
conflicting testimony and inconsistent evidence. Burley v. State, supra. In
sum, we will affirm if there is substantial evidence to support the
conviction. Norton v. State, 271 Ark. 451, 609 S.W.2d 1 (Arkansas
Supreme Court 1980); Lunon v. State, 264 Ark. 188, 569 S.W.2d
663 (Arkansas Supreme Court 1978).
Additionally, when construing a
statute, we must construe the statute just as it reads, giving the words their
ordinary and usually accepted meaning in common language. Thompson v. State, 2014
Ark. 413, at 5, 464 S.W.3d 111, 114 (Arkansas Supreme Court 2014). Hinton was
convicted of theft of property.
Arkansas Code Annotated § 5–36–103 states
in pertinent part:
`(a) A person commits theft of property
if he or she knowingly:
(1) Takes or exercises unauthorized
control over or makes an unauthorized transfer of an interest in the property
of another person with the purpose of depriving the owner of the property; or
(2) Obtains the property of another
person by deception or by threat with the purpose of depriving the owner of the
property.
(b) Theft of property is a:
(1) Class B felony if: . . .
(B) The property is obtained by the
threat of serious physical injury.’
As used in Arkansas Code §
5–36–103, `obtain’ means `[i]n relation to property, to bring about a transfer
or purported transfer of property or of an interest in the
property, whether to the actor or another person.’ Arkansas Code § 5–36–101(7)(A).
Hinton v. State,
supra. Having outlined, and parsed,
the applicable law, the Supreme Court took up the facts in the case, noting
that
we must review the testimony presented.
The facts related to this appeal stem from the sale of a laptop between private
parties on the campus of the University of Arkansas at Little Rock (`UALR’). At
trial, Samuel Shelton, a student at UALR, testified that, through the classified
advertising website, Craig's List, he advertised for the sale of his new laptop
for $1,300. Shelton testified that, a few days later, he received a response to
his advertisement and arranged to meet an individual to purchase the laptop.
Shelton testified that he arranged to meet the individual on September 12,
2012, around 4:00 p.m. at the Trojan Grill, a restaurant on campus, to sell his
laptop for $1,300.
Shelton testified that he had his
roommate, Christopher Dunbar, go with him, and his friends Tyler Kent, Carissa
Asetta, and Ryan Reed went as well. Shelton testified that he sat with Kent and
Reed at one table, and Asetta and Dunbar sat at a nearby table to observe.
Shelton further testified that two men arrived to purchase the laptop and that
both men were black—one wearing a white tank top and one wearing a black
sleeveless shirt. Shelton testified that they sat and talked for about fifteen
minutes and that the two men stated they were waiting on their friend to arrive
with the cash to purchase the laptop; suddenly, one of the men grabbed the
laptop and started to run.
Shelton testified that he stood up to
run after him, but Hinton pushed him in the back and shoved him into some crepe
myrtles and rose bushes. Shelton testified that when he stood back up, Hinton
had the laptop, and Reed had tackled the man in the black shirt to the ground.
Shelton testified that he followed Hinton and saw that Hinton had a pistol in
his right hand and the laptop in his left hand. Shelton testified that he
followed Hinton, who met up with his accomplice, and when the police arrived
soon thereafter, Hinton was apprehended.
Hinton v. State,
supra.
The opinion then explains that Dunbar testified that he accompanied
Shelton to sell the laptop
on the day in question and sat a few tables over from Shelton and witnessed the
attempted sale of the laptop. Dunbar testified that when the laptop was taken,
he immediately called campus security and was directing law enforcement to the
location of the two men. Dunbar further testified that Hinton pointed the
pistol at him two times—both before and after the laptop was taken from
Shelton. Specifically, Dunbar testified that Hinton pointed the gun at him
first before Hinton grabbed the laptop from the man in the black shirt and then
during the chase after Hinton grabbed the laptop from the man in the black
shirt. Law enforcement testified that they arrived at the scene, recovered the
laptop and firearm, and apprehended Hinton. The serial number on the firearm
had been scratched off.
Upon review, the testimony presented at
trial, viewed in the light most favorable to the State, establishes that Hinton
committed theft by threat of serious physical injury. Here, the record
demonstrates that Dunbar testified that he was threatened with the gun two
times, including before the laptop
was obtained by Hinton and after Hinton obtained it. Dunbar testified that,
while on the phone with law enforcement, when Hinton's accomplice passed the
laptop off to Hinton, Dunbar followed Hinton and
[Hinton] had both the gun and the
laptop. . . . And right when we hit the grassy area, that is when [Hinton]
began to turn around, . . . [a]nd that's when I, again, had the gun pointed at
me.
Hinton v. State, supra
(emphasis in the original).
The Supreme Court goes on to explain that,
[l]ater in his testimony, on redirect
examination, Dunbar testified again:
PROSECUTOR: Whenever the laptop was
handed off, you said that you don't remember it; it's been two years ago; you
don't remember exactly how it was caught; is that right?
DUNBAR: I remember that it seemed
almost like a—like a sports' maneuver, like a—almost like a handoff, like—
PROSECUTOR: Okay. So you can recall
that it was a handoff, but you can't recall exactly how it was caught?
DUNBAR: I don't know how his arms were
around it while this happened, but I know that it looked like he was falling
and—and he lifted up the laptop to be grabbed, and it was grabbed.
PROSECUTOR: By whom?
DUNBAR: By the man who pointed the gun
at me—gun at me originally.
PROSECUTOR: Okay. And so that was after
the gun had been pointed at you?
DUNBAR: Yes.
Hinton v. State,
supra.
The Supreme Court then found that,
[t]hus, Dunbar testified that the gun
was pointed at him both before and after the laptop was obtained by Hinton.
Here, viewing the evidence in the light most favorable to the State, as we
must, and giving the statutory definition of `obtain’ its ordinary and usually
accepted meaning in common language, there is substantial evidence to support
Hinton's conviction. Crawford v. State, 309 Ark. 54, 55, 827 S.W.2d
134, 135 (Arkansas Supreme Court 1992); Smith v. State, 306
Ark. 483, 815 S.W.2d 922 (Arkansas Supreme Court 1991). In other words,
substantial evidence supports that Hinton, in relation to the property—the
laptop—brought about a transfer of the laptop by threat of serious physical
injury, when Hinton pointed a firearm at Dunbar and then grabbed the laptop. See Arkansas
Code Annotated §§ 5–36–101(A)(7) & 5–36–103. Accordingly, we affirm
on this point.
Hinton v. State,
supra.
The Supreme Court then took up Hinton’s second argument on
appeal, i.e., that the
five-year enhancement for each offense
is an illegal sentence. Hinton asserts that the enhancements he received
pursuant to Arkansas Code Annotated § 16–90–120(a) are illegal
because that statute does not apply when the underlying felony is simple
possession of a firearm because such an offense cannot be committed without a
firearm. In other words, Hinton contends that the firearm-enhancement
statute does not apply to felonies that require possession as an element of the
offense.
Hinton v. State,
supra.
It went on to explain that the
statute in question is Arkansas
Code Annotated § 16–90–120(a), which provides as follows:
`Any person convicted of any offense
that is classified by the laws of this state as a felony who employed any
firearm of any character as a means of committing or escaping from the felony,
in the discretion of the sentencing court, may be subjected to an additional
period of confinement in the state penitentiary for a period not to exceed
fifteen (15) years.’
We construe criminal statutes strictly,
resolving any doubts in favor of the defendant. State v. Thompson, supra.
We also adhere to the basic rule of statutory construction, which is to give
effect to the intent of the legislature. State v. Thompson, supra. 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. State v.
Thompson, supra.
Hinton v. State,
supra.
The Supreme Court went on to explain that
[a]pplying our rules of statutory
construction, we must first look to the plain language of the statute. Despite the
plain language of the term `any ... felony’ in Arkansas Code Annotated §
16–90–120(a), Hinton relies on McKeever v. State, 367 Ark.
374, 240 S.W.3d, 583 (Arkansas Supreme Court 2006), and asserts that we
narrowed the scope of the statute by limiting its application so that any
felony that requires the possession of a firearm as an element of the offense
is no longer subject to the enhancement.
Specifically, Hinton asserts that
in McKeever, this court resurrected a repealed statute,
Arkansas Code Annotated § 5–4–505, and `engrafted’ the repealed statute into
our current law. The repealed statute, Arkansas Code Annotated § 5–4–505,
specifically stated that the enhancement did not apply to a felony conviction
that required possession or use of a deadly weapon as the offense. Therefore,
Hinton contends that McKeever has
revived the repealed exception to the enhancement that Hinton now argues is
applicable to his case.
Hinton v. State,
supra.
The Supreme Court, though, was not persuaded, explaining
that Hinton's argument
is misplaced for
three reasons. First, a careful review of McKeever
demonstrates that Hinton’s analysis of that opinion is incorrect. In McKeever,
McKeever was charged with committing terroristic acts. In McKeever, we
explained,
`[t]he issue before the court is one of
statutory interpretation. . . . The plain language of the firearm-enhancement
statute shows that the legislature intended for it to apply to `any offense . .
. in addition to any fine or penalty provided by law as punishment for the
felony itself.’ Arkansas Code Annotated § 16–90–120. In the instant case,
McKeever committed three separate criminal offenses, and each of those three
offenses was committed with a firearm. As such, each of the offenses was
subject to a sentence enhancement under Arkansas Code Annotated § 16–90–120.
Still, McKeever argues that in pulling a gun and firing at the car, he
committed only one act that the legislature sought to punish under the
firearm-enhancement statute—that is to say, he used one firearm in one violent
incident. Thus, he appears to contend that since he used only one firearm in
one incident during the commission of three separate offenses, he is subject
only to one enhancement. We disagree. This court rejected a similar argument
in Welch v. State, 269 Ark. 208, 599 S.W.2d 717 (Arkansas
Supreme Court 1980).’
In that case, appellant argued that the
punishment for each of the three offenses could not be enhanced under
the firearm-enhancement statute because all three offenses were parts of a
single criminal episode. We stated:
`Even so, the robbery and the two rapes
were separate offenses, each of which could have been committed with or without
a firearm. No double jeopardy is involved, because there is no constitutional
barrier to the enhancement of the separate punishment for each of three
distinct crimes, all of which were committed with a firearm. Welch
v. State, supra.
Likewise, in the instant case, each
terroristic act was a separate offense, each of which could have been committed
with or without a firearm. Each of the three distinct crimes was committed with
a firearm; thus, each crime was subject to enhancement. The circuit court did
not err in sentencing McKeever to multiple firearm enhancements under Arkansas
Code Annotated § 16–90–120.’
McKeever v. State,
supra.
The court therefore concluded its analysis of Hinton’s
second argument on appeal by explaining that
[t]hus, this court did not make a
distinction that a felony that could be committed without a firearm cannot be
subject to the firearm enhancement. Second, Hinton's argument is misplaced
because the statute at issue clearly states `any . . . felony’ and therefore
does not support Hinton's position. Courts do not read into a statute a
provision that was not included by the General Assembly—and the repealed
statute has not been recodified. See Harrell
v. State, 2012 WL 5462868 (Arkansas Supreme Court 2012).
Third, even applying strict
construction of penal statutes does not override the primary consideration of
all statutory construction `the intent of the legislature.' Dollar v. State,
287 Ark. 61, 697 S.W.2d 868 (Arkansas Supreme Court 1985). Here, Hinton has
failed to show that the firearm enhancement for his conviction for possessing a
defaced firearm pursuant to Arkansas Code Annotated § 5–73–107 is an
illegal sentence, and we affirm on this point.
McKeever v. State,
supra.
One of the Supreme Court Justices – Justice Wynne -- wrote a
separate opinion, in which she concurred in part with the majority’s opinion
and also dissented in part from it:
While I fully agree with the majority
regarding the second point on appeal, I would reverse on the first point
because the evidence is insufficient to support the verdict. The undisputed
evidence shows that neither appellant nor his accomplice obtained the laptop by
threat of serious physical injury to any person. Therefore, I respectfully
dissent.
As noted in the majority opinion, this
case involves the taking of a laptop computer from a college student, Samuel
Shelton, who thought that he was meeting a potential purchaser on the campus of
the University of Arkansas at Little Rock. Shelton's roommate, Christopher
Dunbar, and friends Tyler Kent, Carissa Asetta, and Ryan Reed were with him;
Reed and Kent sat at a table with Shelton, while Dunbar and Asetta sat at a
different table to observe. Two men, one wearing a white shirt and the other
wearing a black shirt, came up to Shelton and asked if he was the one selling
the laptop; they said that their friend was coming to purchase it. They sat
there for about fifteen minutes, when suddenly the man in the black shirt
grabbed the laptop and started to run. Shelton stood up to run after him but
was pushed down by the man in the white shirt, who was later identified as
Hinton. Ryan Reed tackled the man with the laptop, and Hinton came by, grabbed
the laptop, and continued to run. Chris Dunbar immediately dialed campus police
and kept them on the phone as he followed Hinton. Shelton and Dunbar followed
the two men as they ran off campus; Kent followed from behind. Shelton and
Dunbar both testified to seeing Hinton holding a small pistol in his right hand
as he carried the laptop box in his left hand. Dunbar testified that Hinton
pointed the gun at him on two occasions after the laptop was taken.
Hinton argues that the circuit court
erred in denying his motion for directed verdict on the charge of Class B
felony theft of property by threat of serious physical injury because the State
failed to introduce substantial evidence that either appellant or his
accomplice obtained Shelton's laptop computer by threat of serious physical
injury. On appeal from the denial of a directed-verdict motion challenging the
sufficiency of the evidence, we view the evidence in the light most favorable
to the verdict, considering only the evidence that supports the verdict, and
determine whether the verdict is supported by substantial evidence, which is
evidence of sufficient certainty and precision to compel a conclusion one way
or the other and pass beyond mere suspicion or conjecture. Turner v. State,
2014 Ark. 415, at 3, 443 S.W.3d 535, 537 (Arkansas Supreme Court 2014).
McKeever v. State,
supra.
The Justice went on to explain that
[a]s applicable in the present case, a
person commits theft of property if he or she knowingly `[t]akes or exercises
unauthorized control over . . . the property of another person with the purpose
of depriving the owner of the property.' Arkansas Code Annotated §
5–36–103(a) (Repl. 2013). Hinton was convicted under Arkansas Code
Annotated section 5–36–103(b)(1)(B) for obtaining Shelton's laptop computer
`by threat of serious physical injury to any person.’ Here, Hinton argues that
when he obtained the laptop, there was no threat of serious physical injury to
any person. The State concedes that the act of pushing Shelton to the ground
was not a threat of serious physical injury.
Instead, the State contends that `appellant's
display of the gun and pointing it at Dunbar as he was fleeing constituted the
threat of serious injury.’ According to the State, that this occurred after
appellant's accomplice took the computer does not matter because theft is a
continuing offense, lasting as long as the thief retains the
stolen property. The case that the State cites for this proposition,
however, is not on point. In Hall v. State, 299 Ark. 209, 772
S.W.2d 317 (Arkansas Supreme Court 1989), this court held that theft by receiving—not theft of property—is a continuing offense. Hall v. State, supra (citing State v.
Reeves, 264 Ark. 622, 574 S.W.2d 647 (Arkansas Supreme Court 1978) (theft
by receiving is a continuing offense for purposes of statute of limitations)).
Notably, the State does not argue that Hinton pointed the gun at Dunbar before
the laptop was taken from Shelton. Instead, the State contends that it is
sufficient that Hinton pointed the gun at Dunbar twice during the pursuit.
McKeever v. State,
supra.
The Justice went on to explain that
I find merit in Hinton's argument. He
and his accomplice obtained the computer without a threat of serious
physical injury—his accomplice simply grabbed it and ran. The threat of serious
physical injury by pointing the gun clearly occurred after the
property had been obtained from Shelton. Nor was there a threat of serious
physical injury to any person when the laptop was passed from his accomplice to
Hinton.
Unlike the offense of robbery, the
General Assembly has not defined the theft-of-property statute to include the
use or threat of force in resisting apprehension immediately after committing
the offense. See Arkansas Code Annotated § 5–12–102(a) (`A
person commits robbery if, with the purpose of committing a felony or
misdemeanor theft or resisting apprehension immediately after
committing a felony or misdemeanor theft, the person employs or
threatens to immediately employ physical force upon another person.’ (Emphasis
added.))
Accordingly, I would reverse Hinton's
conviction for Class B felony theft of property.
McKeever v. State,
supra.
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