Fendley v. State, CR

Decision Date18 October 1993
Docket NumberNo. CR,CR
Citation314 Ark. 435,863 S.W.2d 284
PartiesChristopher E. FENDLEY, Appellant, v. STATE of Arkansas, Appellee. 93-637.
CourtArkansas Supreme Court

Daniel D. Becker, Public Defender, Little Rock, for appellant.

Clint Miller, Asst. Atty. Gen., Little Rock, for appellee.

NEWBERN, Justice.

Christopher Fendley was found guilty and sentenced as an habitual offender to six years imprisonment for being a felon in possession of a firearm. The Statute making it an offense for a felon to possess a firearm criminalizes that conduct "Unless so authorized by and subject to such conditions as prescribed by the Governor...." Fendley contends the State failed to prove he had not been authorized by the Governor to possess a firearm. We affirm the conviction because the language to which he refers creates a defense to the crime rather than an element of it, and the evidence was sufficient to prove he conducted himself in violation of the Statute.

Mr. Fendley pawned a shotgun at a pawn shop in Hot Springs. Fendley completed an information card that listed his name, driver's license number, and address. The card was sent to the Garland County Sheriff's Office where it was determined that Fendley was a convicted felon, and a warrant for his arrest was issued.

The Statute mentioned above is Ark.Code Ann. § 5-73-103 (Supp.1991). It states, in pertinent part:

(a) Unless so authorized by and subject to such conditions as prescribed by the Governor, or his designee, or the Bureau of Alcohol, Tobacco and Firearms of the United States Treasury Department, or other bureau or office designated by the Treasury Department, no person shall possess or own any firearm who has been:

(1) Convicted of a felony;....

The prosecutor presented evidence that Fendley was a convicted felon, and he presented the information card Fendley completed to pawn the shotgun. Fendley's attorney moved for a directed verdict, stating that the prosecutor had failed to prove all the elements of the offense.

The State contends the "authorization" clause permitting a felon to possess a firearm if authorized by the Governor, his designee, or the Treasury Department creates a defense on which Mr. Fendley was obliged to present evidence rather than an element to be proved by the State. Fendley presented no such evidence at his trial.

Arkansas Code Ann. § 5-1-111(c) and (d) (1987), refer to two types of criminal defenses as follows:

(c) The issue of the existence of a defense need not be submitted to the jury unless evidence is admitted supporting the defense. If the issue of the existence of a defense is submitted to the jury, the court shall charge that any reasonable doubt on the issue requires that the defendant be acquitted. A defense is any matter:

(1) So designated by a section of this code; or

(2) So designated by a section not a part of this code; or

(3) Involving an excuse or justification peculiarly within the knowledge of the defendant on which he can fairly be required to introduce supporting evidence.

(d) The defendant must prove an "affirmative defense" by a preponderance of the evidence. An "affirmative defense" is any matter:

(1) So designated by a section of this code; or

(2) So designated by a statute not a part of this code.

The "a...

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3 cases
  • Renfro v. State, CR
    • United States
    • Arkansas Supreme Court
    • January 29, 1998
    ...creates a defense under § 5-1-111(c)(3), because such a matter was peculiarly within Renfro's knowledge. See Fendley v. State, 314 Ark. 435, 863 S.W.2d 284 (1993) (court held "authorization" clause in Ark.Code Ann. § 5-73-103 (Supp.1991), which permits a felon to possess a firearm if author......
  • Adams v. State
    • United States
    • Arkansas Supreme Court
    • October 18, 1993
  • Jackson v. State, CR
    • United States
    • Arkansas Supreme Court
    • March 11, 1999
    ...excluding those persons, such as police officers, who act with some legal justification. We agree with the State. In Fendley v. State, 314 Ark. 435, 863 S.W.2d 284 (1993), this court reviewed a similar criminal provision in Ark.Code Ann. § 5-73-103 (Supp.1991), which provided in pertinent (......

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