Melvin E. HERRON, Appellant
STATE of Arkansas, Appellee
FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-15-1858],
HONORABLE BRAD KARREN, JUDGE
Law Firm, PLLC, by: Mark C. Lucas Jr., for Appellant.
Rutledge, Atty Gen., by: Rachel Kemp, Asst Atty Gen., for
T. WHITEAKER, Judge
Appellant Melvin Herron appeals an order from the Benton
County Circuit Court denying his petition for the return of
seized property, specifically a Mossberg 12-gauge shotgun.
Herron urges that the circuit court erred in finding that the
State proved the shotgun was contraband that had been used in
the commission of a felony. We agree, and we reverse and
remand with instructions.
provide the following background information to assist in
understanding the nature of this appeal. Herron, a
seventy-three-year-old man, lives on a farm that is
encompassed by the city of Centerton. In 2015, Herron was
accused of harassment by his neighbors, who alleged that
Herron would walk up and down the street "howling"
and firing a shotgun between 5:30 and 6:30 a.m. Charges were
filed in the Centerton District Court, and Herron was found
guilty of misdemeanor counts of harassment. He appealed his
district court convictions to the Benton County Circuit
in circuit court, the State amended the criminal information
to include two felony counts of first-degree stalking and two
misdemeanor counts of harassment. Herron pled not guilty to
the felony charges. Ultimately, the State moved to reduce the
first-degree stalking charges to misdemeanor counts of
third-degree stalking, and Herron entered a plea of nolo
contendere to the four misdemeanors. The court subsequently
entered an order granting the States motion to reduce the
felony counts to misdemeanors, accepting Herrons plea and
finding him guilty of committing the misdemeanors, and
sentencing him to 120 days in jail with 35 days suspended and
85 days jail credit for the time he served following his
district court conviction. The court also ordered Herron to
have no contact with his neighbors, ordered him to surrender
all firearms that he possessed, and forbade him from
possessing any firearms for twelve months.
waiting the prescribed twelve months, Herron filed a petition
in circuit court seeking the return of his seized property.
Herron specifically sought the return of a 12-gauge Mossberg
shotgun. The State responded to Herrons motion by asserting
that the shotgun had been used in the commission of a felony
and was therefore nonreturnable contraband pursuant to
Arkansas Code Annotated section 5-5-101 (Repl. 2013).
circuit court held a hearing on Herrons motion and
considered arguments of counsel about whether the shotgun had
been used in the commission of a felony. Herron argued that
he had not used the shotgun in the commission of a felony,
noting that all the counts to which he pled no contest in
both district court and circuit court were misdemeanors. The
State argued that it had amended the information to include
felony charges after Herron appealed from his district court
convictions. The State admitted that the felony charges had
been reduced and ultimately resulted in misdemeanor
convictions, but it still took the position that the shotgun
itself was used in the commission of a felony. The State
called no witnesses and presented no evidence at the hearing.
Herron was the only witness who testified.
court denied Herrons petition, entering an order finding
that the shotgun was contraband and thus not subject to
return under section 5-5-101. Herron filed a timely notice of
appeal and, after the court entered another order finding
that the shotgun was no longer needed for evidentiary
purposes, a timely amended notice of appeal.
begin our analysis by determining the appropriate standard of
review. We have found no cases specifically setting forth the
standard of review for an appeal arising under section
5-5-101. The circuit court in this case, however, held a
hearing and considered testimony on the relevant issues. Our
standard of review is therefore that of a bench trial.
See, e.g., Sharp v. State,350 Ark. 529,
531-32, 88 S.W.3d 848, 850 (2002) (setting forth standard ...