Brown v. State , 74 Ark. App. 281 ( 2001 )

John B. ROBBINS, Judge.

James Brown appeals from his convictions for second-degree battery and committing a terror-istic 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.

Arguments Not Preserved for Appeal

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 Ark. Code Ann. § 5-13-201 (a)(1) (Repl. 1997). Second-degree battery is a lesser-included offense of first-degree battery, and may be shown by proof of either purposefully causing physical injury to another, purposely causing serious physical injury to another person by means of a deadly weapon, or by recklessly causing physical injury to another person by means of a deadly weapon. See Ark. Code Ann. §§ 5-13-202(a)(l)-(3).

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 Arkansas Code Annotated section 5-1-110(4) and (5) (Repl. 1997) is not preserved for appeal. 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. Subsection (a) (5) provides that a defendant may not be convicted of more than one offense “if the conduct constitutes an offense defined as a continuing course of conduct and the defendant’s course of conduct was uninterrupted, unless the law provides that specific periods of such conduct constitute separate offenses.”

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 section (a)(5), that the single act of shooting was a continuing course of conduct. However, appellant did not raise these specific objections below and we decline to address issues raised for the first time on appeal. See Breedlove v. State, 62 Ark. App. 219, 970 S.W.2d 313 (1998).

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 Ark. Code Ann. § 5-13-310 (Repl. 1997), and the jury was instructed to consider the following relevant portions of that statute:

(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.

A motion for directed verdict challenges the sufficiency of the evidence. Ayers v. State, 334 Ark. 258, 268, 975 S.W.2d 88, 93 (1998). On review, the appellate court views the evidence and all reasonable inferences deducible therefrom in the fight most favorable to the appellee and affirms if there is substantial evidence to support the conviction. Wilson v. State, 56 Ark. App. 47, 48, 939 S.W.2d 313, 314 (1997). Substantial evidence is that which has sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Smith v. State, 337 Ark. 239, 241, 988 S.W.2d 492, 493 (1999). Only evidence that supports the conviction will be considered. McDole v. State, 339 Ark. 391, 396, 6 S.W.3d 74, 77 (1999).

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. § 5-1-102(19) (Repl. 1997). Ms. Brown testified that she was hit by gunfire in the buttocks area; that, as a result, part of her intestine was removed; that she had to wear a colostomy bag for three months after the shooting; that she stayed in the hospital for nine days; and that she incurred nearly $30,000 in medical expenses. Not only did she lose part of a bodily organ, her intestine, but she lost function, as well, to such an extent that she needed a colostomy bag for three months. That is substantial evidence of serious physical injury. See also Henderson v. State, 291 Ark. 138, 722 S.W.2d 842 (1987). Moreover, whether injuries are temporary or protracted is a question for the jury. Lum v. State, 281 Ark. 495, 499, 665 S.W.2d 265, 267 (1984); Harmon v. State, 260 Ark. 665, 670, 543 S.W.2d 43, 46 (1976). The trial court properly denied the appellant’s motion.

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 terror-istic 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 Ark. Code Ann. § 5-1-110(a) (Repl. 1993). Under the statute, the trial court should enter the judgment of conviction only for the greater conviction. See Hill v. State, 314 Ark. 275, 862 S.W.2d 836 (1993). The trial court is clearly directed to allow prosecution on each charge. Id. It is when the jury returns guilty verdicts that the defense should move the trial court to limit the judgment of conviction to one charge. Id. “Only at that time will the trial court be required to determine whether convictions can be entered in both cases.” Id. at 282. In the instant case, rather than waiting until the jury returned its verdicts and moving the trial court to limit conviction to only one charge, appellant attempted to prematurely force a selection on the State. The trial court did not err in denying his motions at the times that they were presented.

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.

Likewise, in the instant appeal, the jury was presented with evidence from which it could conclude that Mr. Brown fired at least nine rounds from the vehicle he was driving, blowing out the windshield of his own vehicle, causing multiple gunshot holes and damage to the back, side, and front of Mrs. Brown’s van, and successfully hitting his wife’s body twice with gunfire. 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. 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.

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 is well-settled that a mistrial is an extreme remedy that should be granted only when the error is beyond repair and cannot be corrected by curative relief. See Marta v. State, 336 Ark. 67, 983 S.W.2d 924 (1999); Rychtarik v. State, 334 Ark. 492, 976 S.W.2d 374 (1998); Willis v. State, 334 Ark. 412, 977 S.W.2d 890 (1998). Our supreme court has held that a mistrial is a drastic remedy which should only be used when there has been an error so prejudicial that justice cannot be served by continuing the trial, or when fundamental fairness of the trial itself has been manifestly affected. See Peeler v. State, 326 Ark. 423, 932 S.W.2d 312 (1996). The trial court has wide discretion in granting or denying a motion for a mistrial, and the appellate court will not disturb the court’s decision absent an abuse of discretion or manifest prejudice to the movant. See Kemp v. State, 335 Ark. 139, 983 S.W.2d 383 (1998).

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 Ark. Code Ann. § 5-4-301 (a)(1)(C).

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.

1 He was also charged and found guilty of another count of committing a terroristic act with respect to a second victim (count 3). Appellant appeals only his convictions for counts 1 and 2 involving Mrs. Brown.

2 The State initially argues that this court cannot review the element’s of second-degree battery because appellant did not abstract the second-degree battery instruction. However, each of the battery instructions, including the second-degree battery instruction, is clearly abstracted in appellant’s brief.