GARY G. SEYLLER, JR. APPELLANT
STATE OF ARKANSAS APPELLEE
FROM THE CLEBURNE COUNTY CIRCUIT COURT [NO. 12CR-18-81]
HONORABLE TIM WEAVER, JUDGE.
and Zachary, PLLC, by: Joe A. Denton, for appellant.
Rutledge, Att'y Gen., by: Chris R. Warthen, Ass't
Att'y Gen., for appellee.
W. GRUBER, CHIEF JUDGE.
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).
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
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).
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.
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.
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
(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 ...