FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66FCR-17-733] HONORABLE J. MICHAEL FITZHUGH, JUDGE
C. Self, for appellant.
Rutledge, Att'y Gen., by: Kathryn Henry, Ass't
Att'y Gen., for appellee.
W. GRUBER, CHIEF JUDGE
Sebastian County jury found appellant William French guilty
of possession of methamphetamine with the purpose to deliver,
two counts of possession of drug paraphernalia, and a
sentencing-enhancement offense of "proximity to certain
facilities."Arkansas Code Annotated section 5-64-411
(Repl. 2016) provides that a person is subject to an
additional term of ten years' imprisonment if he or she
possesses with the purpose to deliver within 1000 feet of,
among other facilities, a church. For his sole point on
appeal, appellant argues that the circuit court erred in
denying his motion to dismiss the enhancement offense brought
pursuant to this statute. We reverse and remand for a new
trial on the enhancement offense.
trial, Fort Smith police officer Keith Shelby testified that
while patrolling the south side of Fort Smith at around 7:00
p.m. on June 13, 2017, he saw appellant driving a vehicle in
which neither he nor his passengers appeared to be wearing
seatbelts. Officer Shelby lost sight of the vehicle before he
saw it again, running a stop sign right in front of him.
Before Officer Shelby turned on his lights, appellant pulled
into a driveway at the corner of 33rd and Vicksburg, and
Officer Shelby pulled in behind him. Officer Shelby testified
that he discovered methamphetamine and drug paraphernalia in
the vehicle. He also testified that a church was located
about a block and half from the location of the stop and was
visible from the location.
Smith police officer Greg Napier then testified that he was
asked to determine whether there were any facilities in the
area that qualified under the enhancement statute. He said
that he discovered a church right down the street that could
be seen from the traffic stop. He testified that he arranged
to meet Officer Shelby at the location of the stop and began
his measurement from that location. At that point in the
testimony, the State attempted to introduce several
photographs of the area taken by Officer Napier, and
I am going to object to the introduction of these pictures
and the testimony about the proximity because there has been
nothing presented to show that my client had knowledge of
this church being there and I believe that he is being
punished for or this is creating an element of a crime where
a mental state should be required and is not. And because it
is not it violates his due process rights.
court overruled the objection, and the photos were
introduced. Officer Napier testified that the photographs
showed that Southside Full Gospel Church is located near the
traffic stop. He testified that he used a Rolatape to
physically measure the distance between the church and the
traffic stop and that the distance is 535.11 feet.
close of the State's case, appellant moved for a directed
verdict on the charges, including the enhancement charge. He
renewed his objection to Officer Napier's testimony and
to lack of due process, arguing nothing demonstrated that
appellant knew that the church was there. The court denied
the motions without explanation. At the close of the
evidence, appellant renewed the motions, which the court
appeal, appellant contends that the circuit court erred in
denying his motion to dismiss the enhancement charge brought
pursuant to Arkansas Code Annotated section
5-64-411(a)(1)(B), (a)(2)(H) because there was no proof of a
mental state to sustain the conviction. He cites Small v.
State, 2018 Ark.App. 80, 543 S.W.3d 516, in support of
his argument. In Small, we held that section
5-64-411 requires a culpable mental state. 2018 Ark.App. 80,
at 5-6, 543 S.W.3d at 520. Because the statute does not
prescribe a culpable mental state, we held that one must be
imputed under Arkansas Code Annotated section 5-2-203(b),
which provides that if a statute defining an offense does not
prescribe a culpable mental state, one is nonetheless
required and "is established only if a person acts
purposely, knowingly, or recklessly." Ark. Code Ann.
§ 5-2-203(b) (Repl. 2013).
court treats a motion for directed verdict as a challenge to
the sufficiency of the evidence. Hinton v. State,
2015 Ark. 479, 477 S.W.3d 517. We will affirm the denial of a
motion for directed verdict if substantial evidence, direct
or circumstantial, supports the verdict. Matlock v.
State, 2015 Ark.App. 65, 454 S.W.3d 776.
State recognizes that we handed down Small after the
jury trial in this case and that the enhancement statute
requires a culpable mental state. The State argues, however,
that substantial evidence exists that appellant acted
recklessly in possessing with the purpose to deliver
methamphetamine within 1000 feet of a church, and it urges us
to affirm the circuit court for reaching the right result for
a different reason. See also Silmon v. State, 2018
Ark.App. 388, ___ S.W.3d___ . We decline the suggestion. The
court in this case instructed the jury that appellant was
guilty of the enhancement offense if it found beyond a
reasonable doubt that he committed the methamphetamine
offense within ...