FROM THE SEBASTIAN COUNTY CIRCUIT COURT, FORT SMITH DISTRICT
[NO. 66FCR-17-34] HONORABLE JAMES O. COX, JUDGE
Lisa-Marie Norris, for appellant.
Rutledge, Att'y Gen., by: Kathryn Henry, Ass't
Att'y Gen., for appellee.
W. GRUBER, CHIEF JUDGE
Charles Silmon was charged in the Sebastian County Circuit
Court with delivery of hydrocodone, a Class B felony in
violation of Ark. Code Ann. § 5-64-426(c)(2)(A), and
with the sentencing enhancement offense of "Proximity to
certain facilities" in violation of Ark. Code Ann.
§ 5-64-411, alleging that the delivery was committed on
or within 1000 feet of the real property of a church. A jury
found Silmon guilty of both charges, and he was sentenced to
five years' imprisonment on the delivery charge and the
statutory ten years' imprisonment on the enhancement.
Silmon does not appeal the delivery conviction. He argues
only that the circuit court erred in ruling that his
sentencing-enhancement offense did not require proof of a
culpable mental state. We reverse and remand.
jury trial, Fort Smith police officer Greg Napier testified
that he participated in the controlled buy of narcotics from
Silmon. The buy occurred at Silmon's home located at 1500
Rutgers Circle. Napier testified that the New Apostolic
Church is located at 1208 Princeton Street, which is around
the corner from Silmon's residence. Napier physically
measured the distance from Silmon's home to the church
using a Rolatape, which amounted to 998 feet. The straight
distance on Google Maps measured 820 feet.
close of the State's case, Silmon's counsel moved for
directed verdict, challenging only the proximity enhancement
I'm going to move for directed verdict on the proximity
to the church to the certain facilities charge. I'm not
moving for directed verdict on the actual delivery of the
hydrocodone. I've admitted to the Jury that my client did
that. I believe that the evidence is sufficient for that to
go to the Jury, but I object to the proximity to certain
facilities going to the Jury.
In looking at the jury instruction, it says the State must
prove beyond a reasonable doubt that he committed this
offense. It does not talk in here about what the particular
mental state is, but there has to be a mental state
denying the motion, the circuit court stated, "This is
almost a strict liability issue. In the statute and in the
instruction, there is no mention of mental state. It's
just, he's done it, he committed a crime like this within
that . . . distance." Silmon's counsel renewed the
motion at the close of all the evidence, which was again
denied. The jury found Silmon guilty of the delivery charge
and found that Silmon committed the delivery offense within
1000 feet of a church.
Code Annotated section 5-64-411 provides that a person is
subject to enhanced sentencing of an additional ten-year term
of imprisonment if the person "[p]ossesses with the
purpose to deliver, delivers, manufactures, or trafficks a
controlled substance in violation of §§ 5-64-420 -
5-64-440" and "[t]he offense is committed on or
within" 1000 feet of the real property of a church. Ark.
Code Ann. § 5-64-411(a)(1)(B)(2)(H) (Repl. 2016). For
his sole argument on appeal, Silmon contends that the circuit
court erred in ruling that the sentencing enhancement did not
require proof of a culpable mental state. The State,
acknowledging our recent decision in Small v. State,
2018 Ark.App. 80, 543 S.W.3d 516, concedes
error. In Small, we held that Ark. Code
Ann. § 5-64-411 requires a culpable mental state,
Arkansas Code Annotated section 5-64-411, however, adds an
enhanced sentence for a person found guilty of certain
offenses, including that for which appellant was convicted,
only if an additional requirement is met. That additional
requirement is the location where the act is committed.
Accordingly, we hold that the circuit court erred in
concluding that section 5-64-411 did not require a culpable
mental state, and we reverse and remand on this point.
Small v. State, 2018 Ark.App. 80, at 5-6, 543 S.W.3d
at 520. Because Arkansas Code Annotated section 5-64-411 does
not proscribe a specific mental state, one must be imputed
pursuant to Ark. Code Ann. § 5-2-203(b) (Repl. 2013),
Except as provided in §§ 5-2-204(b) and (c), if the
statute defining an offense does not prescribe a culpable
mental state, a culpable mental state is nonetheless required
and is established only if a ...