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Brown v. State

Supreme Court of Arkansas

January 22, 2015

MARLIN BROWN, APPELLANT
v.
STATE OF ARKANSAS, APPELLEE

Page 227

APPEAL FROM THE PULASKI COUNTY CIRCUIT COURT, SEVENTH DIVISION. NO. CR-11-3070. HONORABLE BARRY SIMS, JUDGE.

AFFIRMED.

Dan Hancock, Deputy Public Defender, by: Clint Miller, Deputy Public Defender, for appellant.

Dustin McDaniel, Att'y Gen., by: Vada Berger, Ass't Att'y Gen., for appellee.

OPINION

ROBIN F. WYNNE, Associate Justice.

Page 228

Marlin Brown appeals his convictions for three counts of rape, three counts of aggravated robbery, and one count of Class B felony kidnapping. On appeal, he argues that " the abolition by statute of the statute of limitations defense for defendants whose DNA profile is included in a DNA database violates the Equal Protection Clause of the Fourteenth Amendment" to the United States Constitution, as well as ex post facto principles as applied to him. We have jurisdiction pursuant to Arkansas Supreme Court Rule 1-2(b)(3) (2014), as the appeal involves an issue of federal constitutional interpretation. We affirm.

Appellant's convictions arose from incidents that took place on January 2, January 25, and January 30, 2001. The victims in all three were approached inside or immediately outside their homes by a man with a gun who raped them in their homes and took cash or debit and credit cards. The victims were unable to give detailed descriptions of the attacker because he threatened to kill them if they looked at him, he had his face partially covered in at least the first two attacks, and he covered the victims' faces with a comforter or blanket during the rapes. On August 31, 2011, the State filed a felony information charging appellant with five counts of rape, three counts of aggravated robbery, and two counts of kidnapping. The State also charged appellant under Arkansas Code Annotated section 16-90-120 with having employed a firearm while committing a felony, under Arkansas Code Annotated section 5-4-501(b) with having been previously been convicted of four or more felonies, and under Arkansas Code Annotated section 5-4-501(c) with having been previously convicted of one or more enumerated serious felonies involving violence.

On August 17, 2012, appellant filed a motion to declare Arkansas Code Annotated section 5-1-109(b)(1)(B) and (j) unconstitutional. Those subsections provide:

(b) Except as otherwise provided in this section, a prosecution for another offense shall be commenced within the following periods of limitation after the offense's commission:
(1)(A) Class Y felony or Class A felony, six (6) years.

Page 229

(B) However, for rape, ยง 5-14-103, the period of limitation is eliminated if biological evidence of the alleged perpetrator is identified that is capable of ...

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