Hunt v. State, CR 03-717.

• Decision Date: 13 November 2003
• Docket Number: No. CR 03-717.,CR 03-717.
• Parties: Gary William HUNT v. STATE of Arkansas.
• Court: Arkansas Supreme Court

128 S.W.3d 820

354 Ark. 682

Gary William HUNT v. STATE of Arkansas.

No. CR 03-717.

Supreme Court of Arkansas.

November 13, 2003.

William R. Simpson, Jr., Public Defender, by: Sandra S. Cordi, Deputy Public Defender; and Erin Vinett, Deputy Public Defender, Little Rock, for appellant.

Mike Beebe, Att'y Gen., by: Kent G. Holt, Ass't Att'y Gen., Little Rock, for appellee.

W.H. "DUB" ARNOLD, Chief Justice.

Appellant Gary Hunt was charged with possession of cocaine, possession of drug paraphernalia, felon in possession of a firearm, and simultaneous possession of drugs and firearm. Hunt was convicted only of possession of cocaine, felon in possession of a firearm, and simultaneous possession of drugs and a firearm. He was sentenced to concurrent prison terms of ten years for the possession of cocaine, five years for felon in possession of a firearm, and five years for simultaneous possession of drugs and a firearm. This case comes to this court by a petition for review. When this court grants a petition to review a decision by the court of appeals, this court reviews the appeal as if it had been originally filed in this court. Lewellyn v. Lewellyn, 351 Ark. 346, 93 S.W.3d 681 (2002). Hunt brings two points on appeal: (1) whether the trial court erred in declining to direct a verdict on the charges of felon in possession of a firearm and simultaneous possession of drugs and firearms, because the "firearm" in question did not meet the statutory definition of a firearm due to its degraded condition; and (2) whether as a matter of fundamental error, the trial court erred in declining to direct a verdict on the charge of possession of cocaine and simultaneous possession of drugs and firearms, because the State did not prove that the cocaine in question was a useable amount under Harbison v. State, 302 Ark. 315, 790 S.W.2d 146 (1990). We affirm.

At trial, the State presented four witnesses: Lieutenant Hayward Finks, Detective Troy Ellison, Detective Willie Thomas, and State Crime Lab Analyst Lori Stacks. Officer Hayward Finks testified that he was patrolling with other officers on October 11, 2001, in an area where there had been complaints of narcotics activity. Officer Finks testified that he observed Hunt standing in an alley and holding a rifle. The officers drew their weapons and ordered appellant to drop the gun, and he complied. Hunt was then arrested and searched. Officer Finks testified that when he saw the gun it was muddy, rusty, and had mud in the barrel.

Detective Troy Ellison testified substantially the same as Lieutenant Finks regarding the initial contact with Hunt. Ellison stated that the gun was muddy and rusty with mud in the barrel; and, Ellison testified that he did not know whether the gun was able to be shot. However, Detective Ellison testified that he searched Hunt and found a matchbox with a white rock-like substance in it.

The State's third witness, Detective Willie Thomas, testified much to the same regarding Hunt's initial contact with the police officers. Thomas testified that the gun was muddy, rusty, and that if he was going to fire a gun, he would not choose that particular gun. The State's final witness was Arkansas State Crime Lab analyst Lori Stacks. Stacks, a chemist, examined the rock-like substance seized from Hunt. Stacks testified that the substance testified positive for cocaine; however, Stacks did not testify to the weight of the substance.

After the State rested its case, the defense moved for a directed verdict as to all four charges. The trial court granted the defense's motion as to the paraphernalia charge because the State had lost the item in question and descriptions of the item varied. The defense then presented two witnesses, Marchelio Robinson and Samuel Johnson. Both men indicated that they were longtime friends of Hunt, but they never knew him to own a firearm. After these defense witnesses, the defense counsel renewed its motion for directed verdict; however, the renewed motions were denied.

At the close of all the evidence, the trial court found Hunt guilty of the remaining three offenses: simultaneous possession of drugs and firearms, felon in possession of a firearm, and possession of cocaine. At a separate sentencing proceeding, the trial court sentenced Hunt to ten years for the simultaneous possession offense, and ten years for the felon possession of cocaine offense, and five years for felon in possession of a firearm offense. The trial court ran the sentences concurrently. Appellant filed a timely notice of appeal.

For his first point on appeal, Hunt argues that the trial court erred in not granting his directed-verdict motion on the charges of felon in possession of a firearm and simultaneous possession of drugs and firearm. Hunt contends that the firearm which he was in possession of did not meet the statutory definition of a firearm due to its degraded condition. We disagree.

At the close of the State's case, Hunt moved for a directed verdict with regard to two specific issues. First, appellant asserted that because the State had not produced the actual physical item seized from Hunt that subsequently tested positive for cocaine at the crime lab, the State had not adduced substantial evidence with regard to the paraphernalia charge. The trial court granted this motion. However, appellant also moved for a directed verdict with regard to the charges of felon in possession of a firearm and simultaneous possession of drugs and a firearm. The specific issue raised by Hunt was that the rifle which appellant was accused of possessing did not meet the statutory definition of a firearm. Appellant renewed that motion at the close of all the evidence.

The standard of review in cases challenging the sufficiency of the evidence is well established. We treat a motion for a directed verdict as a challenge to the sufficiency of the evidence. Fairchild v. State, 349 Ark. 147, 76 S.W.3d 884 (2002); Branscum v. State, 345 Ark. 21, 43 S.W.3d 148 (2001). This court has repeatedly held that in reviewing a challenge to the sufficiency of the evidence, we view the evidence in a light most favorable to the State and consider only the evidence that supports the verdict. Stone v. State, 348 Ark. 661, 74 S.W.3d 591 (2002). We affirm a conviction if substantial evidence exists to support it. Id. Substantial evidence is that which is of sufficient force and character that it will, with reasonable certainty, compel a conclusion one way or the other, without resorting to speculation or conjecture. Haynes v. State, 346 Ark. 388, 58 S.W.3d 336 (2001).

The basic rule of statutory construction, to which all other interpretive guides must yield, is to give effect to the intent of the legislature. Thomas v. State, 315 Ark. 79, 864 S.W.2d 835 (1993); Mountain Home Sch. Dist. v. T.M.J. Builders, Inc., 313 Ark. 661, 858 S.W.2d 74 (1993). In interpreting a penal statute, "[i]t is well settled that penal statutes are strictly construed with all doubts resolved in favor of the defendant, and nothing is taken as intended which is not clearly expressed." Hales v. State, 299 Ark. 93, 94, 771 S.W.2d 285, 286 (1989). However, even a penal statute must not be construed so strictly as to defeat the obvious intent of the legislature. Russell v. State, 295 Ark. 619, 751 S.W.2d 334 (1988). In this regard, we will not construe penal statutes so strictly as to reach absurd consequences which are clearly contrary to legislative intent. Cox v. State, 313 Ark. 184, 853 S.W.2d 266 (1993); Williams v. State, 292 Ark. 616, 732 S.W.2d 135 (1987); Ashing v. State, 288 Ark. 75, 702 S.W.2d 20 (1986).

Arkansas Code Annotated § 5-1-102(6) states:

(6) "Firearm" means any device designed, made, or adapted to expel a projectile by the action of an explosive or any device readily convertible to that use, including such a device that is not loaded or lacks a clip or other component to render it immediately operable, and components that can readily be assembled into such a device.

Ark.Code Ann. § 5-1-102(6)(Supp.2001). Hunt argues that the testimony from the three police officers indicate that this was not a firearm. Hunt concedes that the General Assembly did not intend to require that a firearm be immediately operable in all instances; however, Hunt states as a purely practical matter, there must be some temporal limit on what may be considered a firearm.

Hunt maintains that a firearm is a piece of metal, or combination of metal and work, depending on the gun. Both wood and metal degrade over time; thus, at some point a gun will reach a point at which it loses its essential characteristics of a gun. Hunt argues that the State's own witnesses uniformly testified that the gun was rusted and was covered with mud and dirt. Two of the three officers stated that they could not tell whether the gun would shoot at all. One of the officers said that he would not fire the gun. Hunt argues that this is not the sort of item that the General Assembly ever intended the State to bring under a firearm.

However, a plain reading of the statute reveals that the definition's dependent clause makes clear that it is immaterial whether the firearm-device is loaded or lacks a component, such as a clip or magazine, that could make it capable of expelling a projectile. Thus, once a device is made for the purpose of expelling a projectile by the action of an explosive, it meets the statutory definition of a firearm. Hunt does not argue that the rifle he possessed was not designed to expel a projectile by the action of an explosion, but argued that the rifle was not "immediately operable." Had the legislature intended Hunt's temporal meaning of a firearm, it could have simply defined a firearm as a device only capable of expelling a projectile. Since the firearm in question was designed to be used in a manner consistent with Ark.Code Ann. § 5-1-102(6), the rifle is a firearm within the ordinary meaning of the word used by ...