Ferguson v. State

• Decision Date: 23 February 2005
• Docket Number: No. CA CR 03-1322.,CA CR 03-1322.
• Citation: 204 S.W.3d 113
• Parties: Eric Wayne FERGUSON, Appellant v. STATE of Arkansas, Appellee.
• Court: Arkansas Court of Appeals

204 S.W.3d 113

Eric Wayne FERGUSON, Appellant v. STATE of Arkansas, Appellee.

No. CA CR 03-1322.

Court of Appeals of Arkansas, Divisions III & IV.

February 23, 2005.

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James Law Firm, by: William O. "Bill" James, Jr., Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Laura Shue, Ass't Att'y Gen., for appellee.

LARRY D. VAUGHT, Judge.

Eric Wayne Ferguson appeals from the judgment adjudicating him guilty of possession of firearms by certain persons and two counts of aggravated assault. He argues that the trial court abused its discretion by allowing the State to introduce the name and nature of his prior felony conviction, over his objection, after he offered to stipulate that he was among the class of persons prohibited from possessing a firearm. We agree and reverse.

On May 9, 2001, two employees of Rentwise, a furniture rental business, went to Ferguson's home with the purpose of repossessing certain items. According to the employees, they came face-to-face with Ferguson. The parties then exchanged unpleasantries. Included in their exchange was a threat uttered by Ferguson. The employees further testified that Ferguson opened the door of his home, with pistol in hand, cocked the pistol, and said "you em-effs better get off my porch right now."

According to their version of events, Ferguson began walking down the stairs of his house with the gun, and the Rentwise employees returned to their truck and called 911. When the police arrived, the Rentwise employees filed a complaint. One of the employees alleged that Ferguson had pointed a gun directly at him. Based on this information, Ferguson was arrested and charged with two counts of aggravated assault and possession of firearms by certain persons.

At his trial on these charges, Ferguson attempted to stipulate to his inclusion in the class of people prohibited from owning a firearm, based on an earlier conviction for aggravated assault. Relying on the Supreme Court's holding in Old Chief v. United States, 519 U.S. 172, 117 S.Ct. 644, 136 L.Ed.2d 574 (1997), a case with almost factually identical circumstances, he argued that the probative value of submitting the name and nature of his prior felony to prove that he was a member of a certain class of persons would be too prejudicial, particularly in light of the fact that he agreed to stipulate to his inclusion in this class of persons.

Ferguson claims that the prejudicial effect of his prior aggravated-assault conviction substantially outweighed its probative value in light of his offer to stipulate that he had a previous felony conviction. Ark. R. Evid. 403. The State argues that it was entitled to decline the stipulation and present its best case. In support of this assertion it relies on Timmons v. State, 81 Ark.App. 219, 100 S.W.3d 52 (2003) (holding that in order to prove prior conviction of a felony, the State may introduce docket sheet as evidence of appellant's prior conviction). Additionally, the State argues that Ferguson's offer to stipulate to the fact that he was a felon did not address whether or not his prior felony was violent and that the violent finding is an essential element of the offense. Finally, the State alleges that because Old Chief interprets federal law, it is therefore entitled to no deference by our court.

As a starting point, we discuss the essential elements of possession of a firearm by certain persons. In order to sustain a conviction, the State was required to prove that Ferguson had 1) possession or ownership of a firearm, and 2) a particular status (felon, mentally ill, involuntarily committed). Ark.Code Ann. § 5-73-103(a)(1) (1997).¹ Contrary to the State's assertion, the question of whether the prior felony was violent is not a fact question for the jury. Indeed, according to the Arkansas Model Jury Instructions — Criminal, whether a felony is a violent felony is a question of law. AMI Crim.2d. 7302. The "Note on Use" accompanying this instruction states that, if it is alleged that the prior felony was violent, the court should make the determination based on the definition of "violent felony" contained in Ark.Code Ann. § 5-73-101(3)(1997).

It logically follows that if the "violent" nature of the prior felony is a question of law, then it cannot be an essential element of the charge. In this case, the jury was not asked to make a legal determination. Instead, the question of the violent nature of the offense was presented to the judge, after the State had rested, for a legal determination—the precise procedure set out by the model instruction. Therefore, it is of no consequence that Ferguson's proposed stipulation did not include a legal conclusion as to the violent (or non-violent) nature of the felony conviction, because this is not an element of the charged offense.

Now we turn to the central question of the appeal, whether the trial court abused its discretion by refusing the stipulation. We use an abuse of discretion standard in reviewing a trial court's balancing of the probative value of prior-crime evidence against the danger of unfair prejudice. Cook v. State, 345 Ark. 264, 45 S.W.3d 820 (2001). The availability of other means of proof is a factor in deciding whether to exclude prejudicial evidence. Id. Evidence likely to provoke an emotional response rather than a rational decision is unfairly prejudicial. Id.

As argued by Ferguson, the situation here is similar to Old Chief, which also involved a prosecution for felon in possession of a firearm and for assault. In Old Chief, as here, the issue was the defendant's legal status as a felon. Further, in Old Chief, as here, there was no factual connection between the earlier crime and the charged offenses. Finally, in Old Chief, as in this case, the defendant offered to stipulate to a prior felony conviction.

At the outset of its opinion, the Supreme Court acknowledged the standard rule that "a defendant's Rule 403 objection offering to concede a point generally cannot prevail over the Government's choice to offer evidence showing guilt and all the circumstances surrounding the offense." Old Chief, 519 U.S. at 183, 117 S.Ct. 644. Likewise, a defendant's objection pursuant to Rule 403 of the Arkansas Rules of Evidence which is identical to its federal counterpart in all pertinent respects, and his offer to concede a point generally cannot prevail over the State's choice to offer evidence showing guilt and all the circumstances surrounding the offense. Combs v. State, 270 Ark. 496, 500, 606 S.W.2d 61, 63 (1980).

However, while it is generally true that the prosecution is entitled to prove its case by evidence of its own choice, and a criminal defendant may not stipulate his way out of the full evidentiary force of the case to be presented against him, the Supreme Court considered this general rule in the unique context of criminal elements that relate solely to a defendant's status. In Old Chief, the defendant was charged with violating a federal statute that prohibited the possession of a firearm by anyone with a prior felony conviction. Like Ferguson in this case, Old Chief offered to stipulate to the prior-conviction element. Old Chief argued that his offer to stipulate rendered evidence of the name and nature of his prior offense—assault with intent to cause serious bodily injury—inadmissible because the probative value of such evidence was substantially outweighed by the danger of unfair prejudice. The trial court admitted the judgment record for the prior conviction into evidence, and Old Chief was convicted of the charged offense. The United States Supreme Court stated:

Given [the] peculiarities of the element of felony-convict status and of admissions and the like when used to prove it, there is no cognizable difference between the evidentiary significance of an admission and of the legitimately probative component of the official record the prosecution would prefer to place in evidence. For purposes of the Rule 403 weighing of the probative against the prejudicial, the functions of the competing evidence are distinguishable only by the risk inherent in the one and wholly absent from the other. In this case, as in any other in which the prior conviction is for an offense likely to support conviction on some improper ground, the only reasonable conclusion was that the risk of unfair prejudice did substantially outweigh the discounted probative value of the record of conviction, and it was an abuse of discretion to admit the record when an admission was available.

Old Chief, 519 U.S. at 191, 117 S.Ct. 644. The Court recognized "that the prosecution with its burden of persuasion needs evidentiary depth to tell a continuous story." Id. at 190, 117 S.Ct. 644. However, the Court further acknowledged that this maxim "has virtually no application when the point at issue is a defendant's legal status, dependent on some judgment rendered wholly independently of the concrete events of later criminal behavior charged against him." Id. The Court thereby limited its Old Chief holding to cases involving proof of felon status and concluded that the trial court abused its discretion by allowing evidence of the prior assault conviction because it was unduly prejudicial, especially in light of the proffered stipulation. Id.

Similarly, here, Ferguson's proffered stipulation, which like Old Chief's was taken from the wording of the statute, would have proved conclusively that he was a felon.² Thus, the probative value of the conviction, as compared to the stipulation, was negligible. The unfair prejudice was significant—there was a significant risk that the jury would declare guilt on the two assault charges based upon an emotional response to the prior assault charge rather than make a rational decision based upon the evidence. Id. Further, as Old Chief warns, when a prior conviction is for a gun crime or one similar to other charges in a pending case the "risk of unfair...