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, Att'y Gen., by: Rachel Kemp, Ass't
Att'y Gen., for appellee.
PHILLIP T. WHITEAKER, Judge
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
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
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 State's motion to reduce
the felony counts to misdemeanors, accepting Herron's
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 Herron's 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 Herron's 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 Herron's 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. 519,
531-32, 88 S.W.3d 848, 850 (2002) (setting forth standard of
review in an appeal considering whether certain machines were
illegal gambling devices). Under this standard of review, we
determine whether the circuit court's findings were
clearly erroneous or clearly against the preponderance of the
evidence. Id. A finding is clearly erroneous when,
although there is evidence to support it, the reviewing court
on the entire evidence is left with a definite and firm
conviction that a mistake has been committed. Id.
our analysis turns to the applicable law. Section 5-5-101(a)
provides that "[a]ny seized property shall be returned
to the rightful owner or possessor of the seized property
except contraband owned by a defendant." Subsection
(b)(1) of the statute defines "contraband" as
"any [a]rticle possessed under a circumstance prohibited
by law [or] [w]eapon or other instrument used in the
commission or attempted commission of a felony." Ark.
Code Ann. § 5-5-101(b)(1)(A)-(B).
circuit court, the parties did not dispute that Herron was
the rightful owner of the shotgun or that the shotgun had
been seized. The parties centered their dispute on whether
the shotgun met the definition of contraband under the
statute. The State argued that a felony conviction is not
necessary to meet the definition of "contraband"
within the relevant statute, only that the weapon be used in
the "commission" of a felony. Herron argued that
even under the State's position, he did not
"commit" a felony because he was convicted of a
misdemeanor. The circuit court concluded that the shotgun was
"contraband" on the evidence before
For the reasons set forth below, we disagree.
arguments presented by the parties to the circuit court raise
an issue of statutory interpretation. We review issues of
statutory interpretation de novo because it is for this court
to decide what a statute means. K.F. v. State, 2019
Ark.App. 312, at 3, S.W.3d____, ____ . We construe criminal
statutes strictly, resolving any doubts in favor of the
defendant. J.L.W. v. State, 2019 Ark.App. 40, at 5,
570 S.W.3d 480, 483. Additionally, in construing any statute,
we place ...