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Radford v. State

Court of Appeals of Arkansas, Division III

February 7, 2018

TOMMY LEE RADFORD APPELLANT
v.
STATE OF ARKANSAS APPELLEE

         APPEAL FROM THE OUACHITA CIRCUIT COURT [NO. 52CR-15-182] HONORABLE ROBIN J. CARROLL, JUDGE

          James Law Firm, by: Michael Kiel Kaiser and William O. "Bill" James, Jr., for appellant.

          Leslie Rutledge, Att'y Gen., by: Jacob H. Jones, Ass't Att'y Gen., for appellee.

          BRANDON J. HARRISON, JUDGE.

         In 2016, a Ouachita County jury convicted Tommy Lee Radford on two counts of threatening a judicial officer and one count of terroristic threatening. Radford challenges the sufficiency of the State's evidence against him. He also argues that his constitutional right to a speedy trial was violated. None of Radford's arguments are preserved for review, so we must affirm his conviction without addressing the merit of his points. Although he did not challenge the length of his sentence (95 years) in this appeal, it is illegal on its face. The problem, in a nutshell, is that the sentence is too long given the habitual status that is checked on the sentencing order. More on this later. A facially illegal sentence is a matter that we routinely address on our own initiative. The conviction on every count is affirmed; but we remand the case to the circuit court for resentencing.

          I.

         The State's case against Radford is based on Radford's conduct after he appeared before a circuit judge, in a different criminal case, regarding a bond decision. In this case, the State's proof rests primarily on Camden police officer Ben Opelt's testimony. Officer Opelt testified that on 26 January 2015, Radford became "upset" after circuit judge Edwin A. Keaton set a $50, 000 secured bond in a criminal case against Radford. Officer Opelt told the jury about vulgar verbal statements and obscene gestures that Radford had repeatedly made after exiting the courtroom once the bond decision had been made. The bad behavior escalated as the officer and Radford entered the jail portion of the court building.

         A person commits the offense of first-degree terroristic threatening if, with the purpose of terrorizing another person, he or she threatens to cause death or serious physical injury to another person. Ark. Code Ann. § 5-13-301(a)(1)(A) (Repl. 2013). A person acts with purpose with respect to the results of his conduct when it is his or her conscious object to cause the results. Ark. Code Ann. § 5-2-202. "Serious physical injury" means a physical 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.

         Ark. Code Ann. § 5-53-202 makes threatening a judicial officer a crime:

(a) A person commits the offense of threatening a judicial official or juror if the person directly or indirectly utters or otherwise makes a threat toward another person whom the person knows or should know to be a:
(1) Judicial official;
(2) Juror; or
(3) Member of the immediate family of a judicial official or juror.
(b)(1) Threatening a judicial official or juror is a Class B felony if the person threatens:
(A) To cause death or serious physical injury to a judicial official, juror, or any member of a judicial official's or ...

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