McDaniel v. State , 2015 Ark. App. 714 ( 2015 )

Cite as 2015 Ark. App. 714
ARKANSAS COURT OF APPEALS
DIVISION IV
No. CR-15-302
Opinion Delivered December 16, 2015
EUGENE MCDANIEL III APPEAL FROM THE PULASKI
APPELLANT COUNTY CIRCUIT COURT,
FIFTH DIVISION
V. [NOS. CR-2013-3038; CR-2010-06;
CR-2010-176]
STATE OF ARKANSAS
APPELLEE HONORABLE WENDELL GRIFFEN,
JUDGE
AFFIRMED
BRANDON J. HARRISON, Judge
Eugene McDaniel III appeals his conviction for committing a terroristic act and the
revocation of his probation. He argues that an inconsistency in the jury’s verdicts shows
that the State failed to prove that he (1) committed a terroristic act and (2) violated the
conditions of his probation. We hold that his argument is not preserved and affirm.
On 4 January 2010, McDaniel was charged with breaking or entering, theft of
property, and criminal mischief in case number CR-2010-06. On 13 January 2010, he
was charged with residential burglary and theft of property in case number CR-2010-176.
McDaniel entered a guilty plea in both cases and was sentenced to five years’ probation in
CR-2010-06 and five years’ probation in CR-2010-176.
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On 19 September 2013, McDaniel was charged with the offenses of committing a
terroristic act, first-degree battery (two counts), and possession of a firearm by certain
persons. He was also charged with a firearm enhancement pursuant to Ark. Code Ann. §
16-90-120 (Repl. 2013). Also on 19 September 2013, the State filed a petition to revoke
McDaniel’s probation in CR-2010-176 based on his committing these new offenses. And
on 14 January 2014, the State filed a petition to revoke McDaniel’s probation in CR-
2010-06, also based on his committing these new offenses.
A jury trial was held in August 2014, at which the State presented evidence that
McDaniel and several others were involved in an altercation with Anthony Parker at
Parker’s residence. This altercation resulted in McDaniel and two others shooting toward
Parker and his house; Parker sustained a number of gunshot wounds, and seven-year-old
Nyla Watson, the daughter of Parker’s girlfriend, was also shot in the foot. The jury
found McDaniel guilty of committing a terroristic act but not guilty of first-degree battery
with respect to Parker and Watson. 1 The jury also found that McDaniel did not employ a
firearm as a means of committing a terroristic act for purposes of the firearm enhancement.
McDaniel was sentenced to fifteen years’ imprisonment for committing a terroristic
act. The circuit court also revoked his probation based on his commission of this crime
and sentenced him to three years’ imprisonment with three years’ suspended imposition of
sentence (SIS) in CR-2010-06 and five years’ imprisonment with five years’ SIS in CR-
2010-176. This appeal followed.
1
The sentencing order indicates that the offense of possession of firearms by certain
persons was severed.
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For his first point on appeal, McDaniel argues that the State failed to prove that he
committed a terroristic act as evidenced by the jury’s inconsistent verdicts. A person
commits a terroristic act if, while not in the commission of a lawful act, the person shoots
at an occupiable structure with the purpose to cause injury to a person or damage to
property. Ark. Code Ann. § 5-13-310(a)(2) (Repl. 2013). McDaniel asserts that the State
failed to prove that he committed a terroristic act because the jury found that he did not
employ a firearm in committing a terroristic act, and an element of the crime is
“shoot[ing] at an occupiable structure.” He asserts that he “cannot be guilty of having
committed [a] terroristic act if he did not, beyond a reasonable doubt, employ a firearm to
commit the ‘shoots’ element of the definition of terroristic act.” In support, he provides a
lengthy block quote from United States v. Randolph, a Sixth Circuit Court of Appeals
decision, which reversed Randolph’s conviction for drug trafficking because the jury also
“found that the drugs ‘involved in’ the conspiracy were ‘none.’ This unanimous finding
negates an essential element of the charged drug conspiracy and is only susceptible to one
interpretation: the government failed to prove Randolph guilty of the charged drug
conspiracy beyond a reasonable doubt.” 2015 FED App. 0163P, at 12 (6th Cir.).
In response, the State argues that a jury may convict on some counts but not on
others, and may convict in different degrees on some counts, because of compassion or
compromise, and not solely because there was insufficient evidence of guilt. Jordan v.
State, 323 Ark. 628, 631, 917 S.W.2d 164, 165 (1996). The State also contends that, if
viewed as a sufficiency argument, then McDaniel failed to make this argument below, so
it is not preserved for our review.
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In reply, McDaniel acknowledges that he did not raise this argument below, but he
asserts that the argument falls under one of the four exceptions outlined in Wicks v. State,
270 Ark. 781, 606 S.W.2d 366 (1980). In Wicks, the Arkansas Supreme Court presented
the following four narrow exceptions to the contemporaneous-objection requirement: (1)
when the circuit court, in a death-penalty case, fails to bring to the jury’s attention a
matter essential to its consideration of the death penalty itself; (2) when defense counsel
has no knowledge of the error and thus no opportunity to object; (3) when the error is so
flagrant and so highly prejudicial in character that the circuit court should intervene on its
own motion to correct the error; and (4) when the admission or exclusion of evidence
affects a defendant’s substantial rights. Thomas v. State, 370 Ark. 70, 257 S.W.3d 92
(2007).
In this case, McDaniel contends that the third Wicks exception applies. He argues
that “a circuit court judge’s failure to intervene in the trial to secure a defendant’s right to
have the State prove its case beyond a reasonable doubt is structural error that an Arkansas
appellate court may address for the first time on direct appeal,” citing Anderson v. State,
353 Ark. 384, 108 S.W.3d 592 (2003). He also argues that this case is an “internally
inconsistent verdict” case, not an inconsistent-verdicts case; therefore, the case law
governing inconsistent verdicts does not apply.
We hold that McDaniel’s argument is not preserved for our review because he
failed to raise it below. See Russell v. State, 2014 Ark. App. 357 (holding that appellant’s
inconsistent-verdict argument was not preserved for appellate review because it was never
made to the circuit court); Fletcher v. State, 2014 Ark. App. 50 (holding that appellant’s
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Cite as 2015 Ark. App. 714
inconsistent-verdict argument was not preserved for appellate review when that argument
was never made to the circuit court after the jury returned its verdict or in a posttrial
motion). We disagree that this case falls under the third Wicks exception; our case law is
clear that Wicks presents only narrow exceptions that are to be rarely applied, and the third
Wicks exception has been applied only to cases in which a defendant’s fundamental right
to a trial by jury is at issue. See Anderson, supra. And whether one frames this case as an
inconsistent-verdict case or an internally-inconsistent-verdict case, the fact remains that no
argument on either basis was made to the circuit court. Because McDaniel has not
preserved his argument for our review, and because no Wicks exception applies, we affirm
his conviction.
For his second point on appeal, McDaniel contends that because the State failed to
prove that he committed a terroristic act, it also failed to prove that he violated any law
punishable by imprisonment; therefore, the circuit court erred in revoking his probation.
He develops no argument on this point and instead cites only to his argument under Point
I. Because we affirm McDaniel’s conviction, we also affirm the revocation of his
probation based on his committing a terroristic act, which demonstrates his violation of a
law punishable by imprisonment.
Affirmed.
KINARD and HOOFMAN, JJ., agree.
Don Thompson, Deputy Pub. Def., by: Clint Miller, Deputy Pub. Def., for appellant.
Leslie Rutledge, Att’y Gen., by: Evelyn D. Gomez, Ass’t Att’y Gen., for appellee.
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