Ark. Code Ann. § 5-74-107 (2026)

Case Notes

Constitutionality.

—Federal Law.

The Supreme Court did not allow the State an Ark. R. Crim. P. 36.10 appeal because no substantial question of former jeopardy existed when federal and state offenses and proceedings were involved; since the state offense involving interpretation of § 5-74-105(a)(1) and subdivision (b)(1) of this section would not come into issue in the same manner due to a decision concerning the unconstitutionality of a federal law, Arkansas's correct and uniform administration of the criminal law was not in issue. State v. Banks, 322 Ark. 344, 909 S.W.2d 634 (1995).

Crime of Violence.

Allowing defendant's release on a bed-space bond under § 16-90-122 was erroneous because the release of offenders was only allowed if they were nonviolent in nature; defendant pled guilty to two counts of unlawful discharge of a firearm from a vehicle, which was a crime of violence under § 5-74-103. State v. Britt, 368 Ark. 273, 244 S.W.3d 665 (2006).

Evidence Sufficient.

Evidence supported defendant's convictions for second-degree unlawful discharge of a firearm from a vehicle under this section because (1) an employee at a fast food restaurant that was located in a gas station testified that she saw defendant shooting toward the gas station; (2) a gas station employee and a third witness testified that they witnessed gunfire from a black vehicle toward the gas station; (3) while the gas station employee and the third witness did not actually see defendant shooting the gun from the black vehicle, there was substantial evidence that defendant was the only person in the vehicle at the time of the shooting; (4) not one witness at the gas station testified that they saw another individual in the vehicle; (5) the third witness pursued defendant from the gas station until just a couple of minutes before he was arrested; and (6) when defendant was arrested, the vehicle was searched, no other individual was found, and a gun casing (that matched the gun that defendant threw out of the window of his vehicle after the shooting) fell out of his lap. McBride v. State, 99 Ark. App. 146, 257 S.W.3d 914 (2007).

At trial for capital murder and unlawful discharge of a firearm from a vehicle, witnesses' in-court identifications of defendant were not so unreliable that his conviction should be overturned because: (1) the jury clearly found the witnesses and their identifications of defendant credible; (2) defendant did not challenge or object to the witnesses' in-court identifications when they were made, but instead attempted to discredit their testimony on cross-examination; and (3) he merely challenged the in-court identifications in the context of his challenge to the sufficiency of the evidence. Davenport v. State, 373 Ark. 71, 281 S.W.3d 268 (2008).

Substantial evidence supported defendant's convictions for aggravated robbery, kidnapping, aggravated assault, theft of property, unlawful discharge of a firearm from a vehicle, and fleeing because while the state did not prove that defendant actually entered a bank, it did provide substantial evidence that he was the driver of the getaway car and thus was an accomplice of the two men who committed the aggravated robbery, kidnapping, and theft of property; while defendant did not personally shoot at an officer's vehicle, his conduct of driving the fleeing vehicle while another person in the car fired the shots sufficiently implicated him as an accomplice to unlawfully discharging a firearm from a vehicle. Barber v. State, 2010 Ark. App. 210, 374 S.W.3d 709 (2010).

There was testimony that the gun discharge occurred at a busy intersection, that other drivers were present at the time, and that several businesses were located nearby, and firing a gun into the air was reckless and created a substantial risk of physical injury and/or property damage; thus, there was substantial evidence to support defendant's unlawful-discharge conviction under this section. Oliver v. State, 2016 Ark. App. 332, 498 S.W.3d 320 (2016).

Evidence was sufficient to convict defendant of unlawful discharge of a firearm from a motor vehicle and battery as the victim suffered a serious physical injury. The victim testified that he received three gunshot wounds, was hospitalized, lost a kidney, and suffered further infections as a result of the wound; and the victim's injury caused protracted impairment of his health as the victim testified about the complications that resulted in infection and required him to return to the hospital, receive antibiotics, and have drainage tubes placed in his body. Johnson v. State, 2017 Ark. App. 71, 510 S.W.3d 298 (2017).

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).

Even assuming the witness was an accomplice, there was independent evidence tending to connect defendant with attempted capital murder, unlawful discharge of a firearm from a vehicle, and fleeing, as his letters and call to the witness were consistent with testimony that defendant was the shooter, and the jury could have found that defendant's alleged actions in firing the assault rifle at the officer and telling the driver to go aided and encouraged the driver in fleeing from the officer. Farmer v. State, 2019 Ark. App. 331 (2019).

Gang Activity.

Gang activity was not an element of the offense under this section, contrary to defendant's argument. Oliver v. State, 2016 Ark. App. 332, 498 S.W.3d 320 (2016).

Lesser-Included Offenses.

Trial court did not err in failing to instruct the jury on negligent homicide because it was not a lesser-included offense of unlawful discharge of a firearm from a vehicle, and defendant's proffered instruction did not meet any of the three alternative tests set out in § 5-1-110 where the culpable mental state for negligent homicide was directed at the act of causing the death of another person and the culpable mental state for first-degree unlawful discharge of a firearm from a vehicle was directed at the act of discharging the firearm. Webb v. State, 2019 Ark. App. 436, 587 S.W.3d 252 (2019).

Preservation for Review.

Although defendant argued that another person fired the shots from the vehicle, for purposes of his unlawful discharge of a firearm from a vehicle conviction, defendant did not raise this issue in his motion to dismiss, and although he did raise the issue in closing argument, that was not a substitute for a motion to dismiss; the issue was not preserved for review. Oliver v. State, 2016 Ark. App. 332, 498 S.W.3d 320 (2016).

Cited: Beck v. State, 317 Ark. 154, 876 S.W.2d 561 (1994); Nelson v. State, 324 Ark. 404, 921 S.W.2d 593 (1996); State v. Pulaski County Circuit Court, 326 Ark. 886, 934 S.W.2d 915 (1996).