Ark. Code Ann. § 5-13-302 (2020)

Case Notes

Construction.

The phrase “while not in the commission of a lawful act” in subsection (a) was clearly intended to provide a defense to those persons who may have been legally justified in committing the proscribed acts, with the most obvious examples being a person acting in self-defense and a police officer returning the gunfire of a criminal suspect. Jackson v. State, 336 Ark. 530, 986 S.W.2d 405 (1999).

Trial court did not err in sentencing defendant, who was convicted of two counts of committing a terroristic act, to 30 years' imprisonment pursuant to the “three strikes” provision of § 5-4-501 (d)(1) based on the fact that he had been convicted the previous month of three counts of aggravated robbery in an unrelated case. Benson v. State, 86 Ark. App. 154, 164 S.W.3d 495 (2004).

Elements.

There was no violation of defendant's rights under § 5-1-110(a)(4) because when comparing the elements of the two offenses it was evident that the conduct of committing a terroristic act under this section was not a specific instance of conduct constituting first-degree battery under § 5-13-201. Warren v. State, 103 Ark. App. 124, 286 S.W.3d 768 (2008).

Where defendant was convicted of committing a terroristic act but the jury found that defendant did not employ a firearm for purposes of the firearm enhancement, defendant's inconsistent-verdict argument was not preserved for review; defendant failed to raise the argument below and no Wicks exception applied. McDaniel v. State, 2015 Ark. App. 714 (2015).

Trial counsel was not ineffective for failing to make an appropriate motion for directed verdict because appellant failed to show that the motion, even if properly preserved for appeal, would have been meritorious; there is no requirement in this section that defendant had to aim with an intention to hit the house rather than the victim, who was outside in front of the house. Lee v. State, 2017 Ark. 337, 532 S.W.3d 43 (2017).

Multiple Offenses.

The crime defined by the statute is not a continuous course of conduct crime; thus where the defendant fired three quick, successive shots into his girlfriend's apartment, he was properly convicted of three separate terroristic acts. McLennan v. State, 337 Ark. 83, 987 S.W.2d 668 (1999).

Since committing a terroristic act was not a continuous-course-of-conduct crime, in that each shot fired was punishable as a separate act, where defendant fired multiple shots at the victim, his conviction of both committing a terroristic act and of battery was not barred by double jeopardy. Brown v. State, 74 Ark. App. 281, 47 S.W.3d 314 (2001), aff'd, 347 Ark. 308, 65 S.W.3d 394 (2001).

In a case involving terroristic acts, where three shots were fired into an automobile, because each terroristic act was a separate offense that could have been committed with or without a firearm, each crime was subject to a firearm enhancement under § 16-90-120. McKeever v. State, 367 Ark. 374, 240 S.W.2d 583 (2006).

After defendant was convicted of three counts of committing a terroristic act, in violation of subdivision (a)(1) of this section, the trial court did not err in imposing multiple firearm enhancements because defendant committed three separate criminal offenses, and each offense was committed with a firearm. McKeever v. State, 367 Ark. 374, 240 S.W.3d 583 (2006).

Trial court properly denied appellant postconviction relief because he failed to show a double-jeopardy violation arising out of the charges for commission of a terroristic act, criminal attempt to commit first-degree battery, and aggravated assault; appellant could have been tried and convicted under the statute for the commission of a terroristic act for each shot that he fired. There were six separate criminal violations resulting from six separate impulses in the firing of six separate shots. Lee v. State, 2017 Ark. 337, 532 S.W.3d 43 (2017).

Sentencing.

Where defendant was convicted of multiple offenses and sentenced to 240 months for committing a terroristic act under this section and 192 months for domestic battery under § 5-26-303(a)(3), the enhancement of his sentence on both charges by 144 months pursuant to § 16-90-120 did not result in his sentence being enhanced twice for using a deadly weapon because the use of a firearm was not an element the prosecution had to prove to obtain his convictions. King v. State, 2012 Ark. App. 94 (2012).

Sufficiency of Evidence.

Defendant's convictions for first-degree murder, a terroristic act, and possession of firearms by certain persons were proper where the jury believed the witnesses's testimony that defendant fired the only shots and fired toward the group where the victim was standing and toward the nightclub. Jackson v. State, 363 Ark. 311, 214 S.W.3d 232 (2005).

In a case involving terroristic acts, the exclusion of a computer-generated threat to bolster a self-defense claim under § 5-2-606 was error since the evidence was relevant under Ark. R. Evid. 401; however, the error was harmless since evidence of other threats could have been elicited. McKeever v. State, 367 Ark. 374, 240 S.W.2d 583 (2006).

Evidence was sufficient to convict defendant of capital murder and a terroristic act when a witness, a retired deputy sheriff, described the perpetrator of a shooting, and defendant matched the description; moreover, a witness testified as to a possible motive, and defendant's relative testified that defendant had asked the relative to lie for defendant. Stephenson v. State, 373 Ark. 134, 282 S.W.3d 772 (2008).

Evidence that included defendant's firing a shot in the direction of a victim's truck, testimony of two individuals that on separate occasions defendant told them he had shot a man, and defendant's evading the responding police was sufficient to convict defendant of commission of a terroristic act in violation of this section. Warren v. State, 103 Ark. App. 124, 286 S.W.3d 768 (2008).

Where defendant stepped out of his motel room and fired a .45 caliber semiautomatic pistol through the windshield of a nearby car, striking all three occupants and killing two of them, the evidence was sufficient to support defendant's conviction of committing a terroristic act under subdivisions (a)(1)(A) and (B) of this section as to the third victim because the evidence established that the third victim was shot in the foot, and the court rejected defendant's argument that the evidence was insufficient for failing to establish that the victim suffered a “serious physical injury” as that term is defined in § 5-1-102(21). The evidence was sufficient to establish that the victim suffered a serious physical injury because the victim suffered a gunshot wound from a .45 caliber semiautomatic pistol that was serious enough to warrant emergency medical care, the victim continued to experience pain and tenderness while walking and was often unable to wear shoes due to the lasting effects of the wound, and the victim was unable to participate in activities that he enjoyed before sustaining the injury, such as playing basketball, and had visible scarring from the entry and exit of the bullet; this evidence was sufficient to support the jury's factual finding that the victim suffered a serious physical injury as a result of defendant's actions. Butler v. State, 2009 Ark. App. 695, 371 S.W.3d 699 (2009).

Evidence that defendant shot his wife four times as she sat in her vehicle was sufficient to support his conviction for terroristic acts under this section, which only required proof that defendant shot at a “conveyance” occupied by the wife with the purpose of injuring her. Frost v. State, 2010 Ark. App. 163 (2010).

In a case in which defendant was found guilty on three counts of attempted first-degree murder, of being a felon in possession of a firearm, and three counts of committing a terroristic act, he unsuccessfully argued that substantial evidence did not support his convictions; while the evidence was circumstantial, substantial evidence supported the conclusion that defendant committed the crimes in question. Moments after the shooting, a dark-colored car was observed speeding away from the area without its lights on even though it was dark outside, that car crashed into another vehicle five blocks from the shooting, a witness positively identified defendant as the person who emerged from the driver's side of the car carrying a long rifle, shell casings from a rifle were recovered from the scene of the shooting, defendant's DNA was found on the driver's side airbag of the car, and the car contained a letter addressed to defendant. Smith v. State, 2010 Ark. App. 216 (2010).

Shot fired at the victims' house, the intruders' clear intent to rob the victims, the earlier threat to kill the victims, and the testimony that one of the intruders turned around and started shooting while he was being chased out of the house was sufficient to convict defendant of committing terroristic acts under subdivision (a)(2) of this section. Davis v. State, 2012 Ark. App. 362 (2012).

Evidence was sufficient to sustain defendant's conviction for committing a terroristic act because, after initially shooting at the victim, defendant fired his weapon two more times as the victim was in the process of shutting his door. The natural and probable consequences of defendant's action in continuing to shoot as the door was closing resulted in the bullets striking the trailer, even though defendant aimed with the purpose of causing personal injury. Wells v. State, 2012 Ark. App. 596, 424 S.W.3d 378 (2012).

It was defendant's brother who fired the shot that killed the victim, and although defendant claimed the State failed to prove it was his conscious object to assist his brother, the law in Arkansas made no distinction between the criminal liability of a principal and an accomplice; defendant drove around with the stated purpose to assist in hunting down and killing the victim, and thus the evidence supported his convictions of first-degree murder and committing a terroristic act, and the circuit court properly denied his motions for directed verdict. Starling v. State, 2015 Ark. App. 429, 468 S.W.3d 294 (2015).

Circuit court did not err in denying defendant's motions for directed verdict because, through the testimony and evidence presented at trial, the jury was apprised of the involvement of the witnesses in the shooting of the victim, and the jury was presented with evidence that defendant chased the victim, blocked the victim's vehicle with defendant's vehicle, and ran up to the victim's car, shooting once into the hood of the car and a second time through the windshield of the car, killing the victim. Starling v. State, 2016 Ark. 20, 480 S.W.3d 158 (2016).

Substantial evidence supported a first-degree felony murder conviction and three terroristic-act convictions where the State was only required to prove that defendant in fact shot at the conveyance the victims were occupying regardless of whether he intended to do so, and three eyewitnesses testified that the surviving victim was in the vehicle when defendant shot at it. Shelton v. State, 2017 Ark. App. 195, 517 S.W.3d 461 (2017).

Although defendant claimed that the only evidence of his intent was the statement he gave to police that the gun accidentally went off, the evidence was sufficient to support his conviction of a terroristic act because there was evidence that defendant honked his horn at the car in front of him at a stop sign, that the other driver honked back, and then defendant exited his vehicle and shot at the other vehicle, killing one of its occupants; in addition, defendant's attorney conceded during argument at trial that the evidence was sufficient to withstand a motion for directed verdict as to the terroristic act. Holmes v. State, 2019 Ark. App. 508, 588 S.W.3d 835 (2019).

Circuit court properly sentenced defendant for capital murder, unlawful discharge of a firearm from a vehicle, terroristic act, and employing a firearm in the commission of a felony because nothing in the capital-murder statute required the State to prove anything regarding the weapon alleged to have been used, the evidence was sufficient for the jury to conclude that defendant shot at an occupiable structure (the victim's home) in an attempt to cause injury to the people standing in front of it, defendant was not prejudiced by the hearsay testimony of a detective regarding a witness's statements to him and the court's failure to give the limiting instruction, and the findings of guilt sufficiently triggered the sentence enhancement. Martinez v. State, 2019 Ark. 85, 569 S.W.3d 333 (2019).

Cited: Webb v. State, 48 Ark. App. 216, 893 S.W.2d 357 (1995); Guy v. State, 323 Ark. 649, 916 S.W.2d 760 (1996); Watson v. State, 329 Ark. 511, 951 S.W.2d 304 (1997); Palmer v. State, 60 Ark. App. 97, 959 S.W.2d 420 (1998); Jones v. State, 332 Ark. 617, 967 S.W.2d 559 (1998).