{
  "id": 1873726,
  "name": "Cecil FISHER, Sr. v. STATE of Arkansas",
  "name_abbreviation": "Fisher v. State",
  "decision_date": "1986-12-15",
  "docket_number": "CR 86-87",
  "first_page": "490",
  "last_page": "494",
  "citations": [
    {
      "type": "official",
      "cite": "290 Ark. 490"
    },
    {
      "type": "parallel",
      "cite": "720 S.W.2d 900"
    }
  ],
  "court": {
    "name_abbreviation": "Ark.",
    "id": 8808,
    "name": "Arkansas Supreme Court"
  },
  "jurisdiction": {
    "id": 34,
    "name_long": "Arkansas",
    "name": "Ark."
  },
  "cites_to": [
    {
      "cite": "260 Ark. 743",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1616765
      ],
      "weight": 2,
      "year": 1976,
      "opinion_index": 0,
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        "/ark/260/0743-01"
      ]
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    {
      "cite": "606 S.W.2d 61",
      "category": "reporters:state_regional",
      "reporter": "S.W.2d",
      "case_ids": [
        1709165
      ],
      "year": 1980,
      "opinion_index": 0,
      "case_paths": [
        "/ark/270/0496-01"
      ]
    },
    {
      "cite": "269 Ark. 469",
      "category": "reporters:state",
      "reporter": "Ark.",
      "year": 1980,
      "opinion_index": 0
    },
    {
      "cite": "284 Ark. 16",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1878645
      ],
      "weight": 2,
      "year": 1984,
      "opinion_index": 0,
      "case_paths": [
        "/ark/284/0016-01"
      ]
    },
    {
      "cite": "263 Ark. 493",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1672711
      ],
      "weight": 2,
      "year": 1978,
      "opinion_index": 0,
      "case_paths": [
        "/ark/263/0493-01"
      ]
    },
    {
      "cite": "278 Ark. 478",
      "category": "reporters:state",
      "reporter": "Ark.",
      "case_ids": [
        1748066
      ],
      "weight": 2,
      "year": 1983,
      "opinion_index": 0,
      "case_paths": [
        "/ark/278/0478-01"
      ]
    }
  ],
  "analysis": {
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  "last_updated": "2023-07-14T18:33:16.506369+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "Cecil FISHER, Sr. v. STATE of Arkansas"
    ],
    "opinions": [
      {
        "text": "John I. Purtle, Justice.\nThe appellant was convicted of Battery in the First Degree, Ark. Stat. Ann. \u00a7 41-1601 (Repl. 1977), and Felon in Possession of a Firearm, Ark. Stat. Ann. \u00a7 41-3103 (Repl. 1977). He was sentenced as an habitual offender to thirty and twelve years, respectively, the terms to run consecutively. During the trial the court overruled his motion for a severance of the two charges. His motion for a new trial was also denied.\nThree arguments are presented on appeal: (1) that the court erred in refusing to sever the charges; (2) that the court erred in sustaining the state\u2019s objection to hearsay testimony; and (3) that the trial judge erroneously overruled appellant\u2019s objection to an allegedly improper impeachment by the state. For the reasons stated below, we do not agree with any of appellant\u2019s arguments and affirm the convictions.\nThe facts of the case are not in dispute, except as set out in the discussion below. Therefore, we will not describe the details of the incident that gave rise to the charges.\nAn amended information charging the appellant as an habitual offender was filed on August 27,1985. The trial was held on October 7, 1985. After the jury was selected the appellant moved for severance of the offenses. The motion was denied and the trial on both charges continued. Appellant argued that it was prejudicial to try the felon in possession charge along with the battery offense because the state would be allowed to introduce evidence of the defendant\u2019s prior convictions in its case-in-chief.\nThe appellant\u2019s argument on the court\u2019s failure to grant a severance is based upon A.R.Cr.P. Rule 22.2(b)(ii). This rule states that the court may grant severance during the trial if it is deemed necessary to achieve a fair determination of the defendant\u2019s guilt or innocence. However, A.R.Cr.P. Rule 22.1 (a) provides:\nDefendant\u2019s motion for a severance . . . must be timely made before trial, except that a motion for severance may be made before or at the close of all the evidence if based upon a ground not previously known. Severance is waived if the motion is not made at the appropriate time.\nThe record does not reflect, nor does the appellant recite, any ground for severance not previously known to him. A motion for severance is a matter which rests within the discretion of the trial court. Henry v. State, 278 Ark. 478, 647 S.W.2d 419 (1983). We hold that the court did not err in denying the motion for severance made after the commencement of the trial. In accord, Owen v. State, 263 Ark. 493, 565 S.W.2d 607 (1978).\nThe second argument for reversal is that the court erred in sustaining the state\u2019s objection to the appellant\u2019s proffer of hearsay concerning what appellant had been told by his parole officer. The officer allegedly told him that he could not possess a gun while he was on parole. The appellant argues that the officer\u2019s silence indicated that it would not be a violation of law to possess a gun after his parole was served.\nThe statement by the parole officer to the defendant that he could not possess a firearm while on parole fits within the definition of hearsay under A.R.E. 801 (c). The \u201cmatter asserted\u201d was that he had been told that he could not possess a firearm while on parole. Obviously, the proffered statement was \u201cother than one made by the declarant. . . offered in evidence to prove the truth of the matter asserted.\u201d\nThe parole officer\u2019s silence on the question of whether the appellant could lawfully possess a firearm after the completion of his parole was a \u201cstatement\u201d only if it was nonverbal conduct intended as an assertion. See A.R.E. 801(a)(2). Whatever the case may be, the proffered evidence is irrelevant. The fact that the defendant was not aware that it was a criminal offense for a felon to possess a firearm is a mistake of law, and, as such, is not a defense in this case.\nThe appellant argues that the statement and ensuing silence were admissible to show his state of mind, which arguably would have been relevant to a defense of mistake of law. A mistake of law is an affirmative defense if the defendant \u201cacted in reasonable reliance upon an official statement of the law contained in . . .an official interpretation of the public servant or agency charged by law with responsibility for the interpretation or administration of the law defining the offense.\u201d See Ark. Stat. Ann. \u00a7 41-206(3)(c) (Repl. 1977). The proffered testimony might have been relevant to a mistake of law defense had the parole officer made a statement regarding possession of a firearm after the defendant\u2019s completion of his parole term. However, the parole officer\u2019s silence was not \u201can official statement of the law contained in. . .an official interpretation of the public servant or agency charged by law with responsibility for the interpretation or administration of the law.\u201d\nFurther, the proffered evidence was not relevant to disprove the culpable mental state required for conviction of the offense of felon in possession of a firearm. The requisite mens rea is that the defendant \u201cpurposely, knowingly, or recklessly\u201d, Ark. Stat. Ann. \u00a7 41-204(2) (Repl. 1977), \u201cpossess[ed] or own[ed] any firearm.\u201d Ark. Stat. Ann. \u00a7 41-3103 (Repl. 1977). Whether the defendant believed that it was legal for a felon to possess a firearm after the completion of his parole is irrelevant.\nThe trial court excluded the proffered testimony as hearsay. An appellate court will sustain the judgment of a trial court if the judgment is correct, even if the trial court announced the wrong reason for its ruling. Ratliff v. Moss, 284 Ark. 16, 678 S.W.2d 369 (1984).\nAppellant\u2019s final argument is that the court should have sustained the appellant\u2019s objection to the state\u2019s impeachment of the appellant with remarks made by appellant\u2019s attorney during his opening statement. Defense counsel had told the jury that the appellant had been asked to leave the party where the battery occurred. Appellant testified at the trial that he had not been asked to leave the party. Witness Taylor, the victim of the battery, testified that he had asked appellant to leave the party. There was no testimony indicating that defense counsel\u2019s statement in opening argument was unfounded. Opening statements are not evidence. See Combs v. State, 269 Ark. 469, 606 S.W.2d 61 (1980). The limits of cross-examination are within the trial court\u2019s discretion so long as the question is limited to the issues of the case and credibility of the witnesses. Dillard v. State, 260 Ark. 743, 543 S.W.2d 925 (1976). Absent an abuse of discretion an evidentiary ruling of the trial court will not be disturbed. Dillard v. State, supra. The standard instruction indicating that opening statements of counsel are not considered evidence was given to this jury.\nAffirmed.",
        "type": "majority",
        "author": "John I. Purtle, Justice."
      }
    ],
    "attorneys": [
      "Terry Crabtree, Public Defender, by: Michael Yarbrough, Asst, to Public Defender, for appellant.",
      "Steve Clark, Att\u2019y Gen., by: J. Blake Hendrix, Asst. Att\u2019y Gen., for appellee."
    ],
    "corrections": "",
    "head_matter": "Cecil FISHER, Sr. v. STATE of Arkansas\nCR 86-87\n720 S.W.2d 900\nSupreme Court of Arkansas\nOpinion delivered December 15, 1986\nTerry Crabtree, Public Defender, by: Michael Yarbrough, Asst, to Public Defender, for appellant.\nSteve Clark, Att\u2019y Gen., by: J. Blake Hendrix, Asst. Att\u2019y Gen., for appellee."
  },
  "file_name": "0490-01",
  "first_page_order": 522,
  "last_page_order": 526
}