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Herron v. State

Court of Appeals of Arkansas, Division IV

September 11, 2019

Melvin E. HERRON, Appellant
v.
STATE of Arkansas, Appellee

Page 409

          APPEAL FROM THE BENTON COUNTY CIRCUIT COURT [NO. 04CR-15-1858], HONORABLE BRAD KARREN, JUDGE

          Lucas Law Firm, PLLC, by: Mark C. Lucas Jr., for Appellant.

         Leslie Rutledge, Att’y Gen., by: Rachel Kemp, Ass’t Att’y Gen., for Appellee.

         OPINION

         PHILLIP 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.

Page 410

          We 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 Court.

          Once 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 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.

         After 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).

          The 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.

         The 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.

          We 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 ...


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