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Seyller v. State

Court of Appeals of Arkansas, Division IV

October 2, 2019

GARY G. SEYLLER, JR. APPELLANT
v.
STATE OF ARKANSAS APPELLEE

          APPEAL FROM THE CLEBURNE COUNTY CIRCUIT COURT [NO. 12CR-18-81] HONORABLE TIM WEAVER, JUDGE.

          Denton and Zachary, PLLC, by: Joe A. Denton, for appellant.

          Leslie Rutledge, Att'y Gen., by: Chris R. Warthen, Ass't Att'y Gen., for appellee.

          RITA W. GRUBER, CHIEF JUDGE.

         Appellant Gary G. Seyller, Jr., was convicted by a Cleburne County Circuit Court jury of possession of a firearm by certain persons pursuant to Ark. Code Ann. § 5-73-103(c)(1)(A) (Repl. 2016), a Class B felony. He was sentenced as a habitual offender to twelve years' imprisonment. On appeal, appellant argues that the circuit court erred as a matter of law in finding that a prior federal conviction was a violent-felony conviction as contemplated by Ark. Code Ann. §§ 5-73-103(c)(1)(A) and 5-73-101(11) (Supp. 2017). We affirm.

         On March 26, 2018, appellant was charged with five offenses: (1) possession of firearms by certain persons under Ark. Code Ann. § 5-73-103(c)(2), a Class D felony; (2) criminal impersonation under Ark. Code Ann. § 5-37-209(b)(1)(A), a Class A misdemeanor; (3) obstruction of governmental operations under Ark. Code Ann. § 5-54-102(b)(1), a Class A misdemeanor; (4) driving with a suspended license under Ark. Code Ann. § 27-16-303(a)(1), an unclassified misdemeanor; and (5) failure to register/expired tags under Ark. Code Ann. § 27-14-701, an unclassified misdemeanor. The State amended the felony information on October 24, 2018, changing the possession-of-firearms charge by certain persons to a Class B felony under Ark. Code Ann. § 5-73-103(c)(1)(A), alleging that appellant had a prior violent-felony conviction. A jury trial took place on October 26, 2018.

         At the beginning of trial, appellant's counsel objected to the State's amendment of the possession charge, arguing that appellant's federal conviction for aggravated assault under 18 U.S.C. § 113(a)(3), which was relied on to amend the charge from a Class D to a Class B felony, did not qualify as a prior violent-felony conviction under Ark. Code Ann. § 5-73-101(11). The State argued that appellant pled guilty to aggravated assault, indicating that the federal indictment provided that appellant "did assault with a dangerous weapon, namely his vehicle, Cleburne County Deputy Bernum . . . with the intent to do bodily harm"; and that the offense meets the definition of a violent felony. Appellant's counsel responded that Ark. Code Ann. § 5-73-101(11) requires the prior conviction to have one of the four elements set out in section 5-73-101(11)(A)-(D) as an element of the offense and that the facts related to the prior conviction do not matter. The State responded that the conviction at issue met the definition of a violent felony under subdivisions (11)(B) and (D). The circuit court ruled that the prior conviction met the definition of a violent felony under subdivisions (11)(B) and (D).

         The only count submitted to the jury was the possession charge because the State nolle prossed the other four counts. The jury found appellant guilty and sentenced him as a habitual offender to twelve years' imprisonment.

         We review issues of statutory construction de novo. Thompson v. State, 2014 Ark. 413, at 5, 464 S.W.3d 111, 115. We construe criminal statutes strictly, resolving any doubts in favor of the defendant. Id. We also adhere to the basic rule of statutory construction, which is to give effect to the intent of the legislature. Id. We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning in common language, and if the language of the statute is plain and unambiguous, and conveys a clear and definite meaning, there is no occasion to resort to rules of statutory interpretation. Id. A statute is ambiguous only where it is open to two or more constructions, or where it is of such obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its meaning. Magness v. State, 2012 Ark. 16, at 3, 386 S.W.3d 390, 393.

         Pursuant to Ark. Code Ann. § 5-73-103(a), it is unlawful for a convicted felon to possess a firearm. The offense is a Class B felony if the person has a prior violent-felony conviction under Ark. Code Ann. § 5-73-103(c)(1)(A). Arkansas Code Annotated section 5-73-101(11) defines violent-felony conviction:

(11) "Violent felony conviction" means a conviction for any felony offense against the person which is codified in § 5-10-101 et seq., § 5-11-101 et seq., § 5-12-101 et seq., § 5-13-201 et seq., § 5-13-301 et seq., § 5-14-101 et seq., and § 5-14-201 et seq., or any other offense containing as an element of the offense one (1) of the following:
(A) The use of physical force;
(B) The use or threatened use of serious ...

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