{ "id": 3695382, "name": "Mark McKEEVER v. STATE of Arkansas", "name_abbreviation": "McKeever v. State", "decision_date": "2006-10-05", "docket_number": "CR 06-464", "first_page": "374", "last_page": "381", "citations": [ { "type": "official", "cite": "367 Ark. 374" }, { "type": "parallel", "cite": "240 S.W.3d 583" } ], "court": { "name_abbreviation": "Ark.", "id": 8808, "name": "Arkansas Supreme Court" }, "jurisdiction": { "id": 34, "name_long": "Arkansas", "name": "Ark." }, "cites_to": [ { "cite": "269 Ark. 208", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1712411 ], "weight": 4, "year": 1980, "pin_cites": [ { "page": "212" }, { "page": "720" } ], "opinion_index": 0, "case_paths": [ "/ark/269/0208-01" ] }, { "cite": "356 Ark. 200", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 5369249 ], "weight": 4, "year": 2004, "opinion_index": 0, "case_paths": [ "/ark/356/0200-01" ] }, { "cite": "337 Ark. 83", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1240952 ], "weight": 2, "year": 1999, "pin_cites": [ { "parenthetical": "holding that appellant's firing three shots into an apartment constituted three separate terroristic acts for the purpose of Ark. Code Ann. \u00a7 5-13-310" }, { "parenthetical": "holding that appellant's firing three shots into an apartment constituted three separate terroristic acts for the purpose of Ark. Code Ann. \u00a7 5-13-310" } ], "opinion_index": 0, "case_paths": [ "/ark/337/0083-01" ] }, { "cite": "Ark. Code Ann. \u00a7 5-13-310", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 2, "year": 1997, "pin_cites": [ { "page": "(a)(l)" } ], "opinion_index": 0 }, { "cite": "Ark. Code Ann. \u00a7 5-2-606", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "year": 1997, "opinion_index": 0 }, { "cite": "363 Ark. 324", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 3558050 ], "weight": 3, "year": 2005, "opinion_index": 0, "case_paths": [ "/ark/363/0324-01" ] }, { "cite": "353 Ark. 577", "category": "reporters:state", "reporter": "Ark.", "case_ids": [ 1155500 ], "weight": 2, "year": 2003, "opinion_index": 0, "case_paths": [ "/ark/353/0577-01" ] }, { "cite": "Ark. Code Ann. \u00a7 16-90-120", "category": "laws:leg_statute", "reporter": "Ark. Code Ann.", "weight": 8, "year": 1987, "opinion_index": 0 } ], "analysis": { "cardinality": 713, "char_count": 15853, "ocr_confidence": 0.749, "pagerank": { "raw": 8.090678488452789e-08, "percentile": 0.46730465753022665 }, "sha256": "bbc73dd8e137a1d33358c98c2fe6e33a9e1fb4f6dc484beb2767ad41ca8df3f5", "simhash": "1:e8c145a2b0ca4134", "word_count": 2640 }, "last_updated": "2023-07-14T22:19:21.310389+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Glaze and Dickey, JJ., concur.", "Dickey, J., joins." ], "parties": [ "Mark McKEEVER v. STATE of Arkansas" ], "opinions": [ { "text": "Jim Hannah, Chief Justice.\nA Pulaski County jury convicted appellant Mark McKeever of three counts of committing a terroristic act. He was sentenced to ten years\u2019 imprisonment for the first terroristic act, ten years\u2019 imprisonment for the second, and five years\u2019 imprisonment for the third. Additionally, McKeever was sentenced to multiple firearm enhancements pursuant to Ark. Code Ann. \u00a7 16-90-120 (1987). For reversal, McKeever argues that the circuit court erred in excluding relevant testimony from his mother regarding threats to his life. He also argues that the circuit court erred in sentencing him to multiple firearm enhancements. We find no reversible error and, accordingly, we affirm.\nThe testimony at trial revealed the following facts. On the night of March 12, 2005, Larry Anderson, Ettana Weatherspoon, and Adrian Thompson were out driving. As they drove by the intersection of 19th and Oak in Little Rock, they spotted an acquaintance of Anderson\u2019s named Xavier. They stopped in the middle of the street to speak to Xavier, at which point, according to Anderson\u2019s testimony, McKeever approached the car and shot at them. Anderson was not struck, but his companions were. They managed to drive down the road a short distance, at which point Anderson ran to his grandmother\u2019s house for help. Anderson testified that nobody in the vehicle had a gun, and that nobody shot except for McKeever.\nMcKeever was the sole witness for the defense. He told the jury that in the weeks leading up to the shooting, he had been involved in an argument with Thompson, and that he feared for his life and for the safety of his family. McKeever testified that on the evening of the shooting, he was standing in the street in front of his mother\u2019s house when he saw Thompson, Anderson, and Weatherspoon drive up. According to McKeever, Thompson had a gun in his lap. McKeever stated that he saw Thompson fumbling with the gun. McKeever testified that he was \u201cin shock\u201d and fired three shots into the car.\nMcKeever first stood trial in this matter on September 13-14, 2005. That trial resulted in a mistrial due to a hung jury. During his first trial, McKeever\u2019s mother, Tina Curry, testified about several separate threats to her son\u2019s life that she had received on her cell phone. First, she testified that Larry Anderson and Adrian Thompson, two of the eventual shooting victims, called her and told her that her son was not safe in the neighborhood, and that they were going to kill him. Second, she testified that a computer-generated voice said, \u201cI\u2019m going to get your son.\u201d\nAt the retrial, the State moved in limine to exclude Curry\u2019s testimony regarding the computer-generated voice. The objection was as follows:\nDeputy Prosecuting Attorney: As to Ms. Curry, she testified that she received threats on her phone. One of those threats was a computer-generated voice. We would object to her testifying to that. I didn\u2019t object last time. We were in the midst of trial and just simply for strategic reasons didn\u2019t want to look like we were trying to hide anything, but that\u2019s blatant hearsay to talk about a threat, there was a message left on her phone that was a computer-generated voice. She has no idea who left that message, and I am going to ask that she specifically not be allowed to testify to the threat. Only if she recognized the voice as a person she knew should she be able to testify to a threat.\nDefense Counsel: I think she should be able to testify to a threat she received on her own voice \u2014 on her own voice mail. She can\u2019t say who. I think it\u2019s important for her to be able to tell the jury she played this threat that she received to the police officers.\nDeputy Prosecuting Attorney: But it\u2019s irrelevant if she can\u2019t say who it\u2019s from. It could have been Bill Gates, T.P., anybody, anybody that might have a beef with her son or a beef with her. That\u2019s irrelevant. It\u2019s prejudicial. She can\u2019t say who that threat came from; therefore, it has absolutely no relevance to this. It\u2019s their theory that self-defense \u2014 and, furthermore, if Mr. McKeever was unaware of those threats, it would be less relevant or not relevant at all, I should say. So I am objecting specifically to the computer-generated voice threat that she claims was on her phone and any threats if she cannot specifically identify the voice.\nThe Court: Okay. I will grant the motion.\nDefense Counsel: Note my objection, Your Honor.\nThe Court: I\u2019ll note your objection. Anything further?\nThe defense did not call Curry to testify during its case-in-chief, but renewed its objection to the trial court\u2019s ruling, as follows:\nDefense Counsel: Sorry, Your Honor, I forgot to \u2014 I must renew my motion based on the fact that Tina Curry would testify to if the Court allowed. The Court had said she could not testify as to the threats. I would renew my motion based on the same grounds that she be allowed to testify to that since the messages were on her voice mail.\nMcKeever argues that the circuit court erred in excluding Curry\u2019s testimony because the testimony about threats to his life was relevant to his claim of self-defense. In evidentiary determinations, a trial court has wide discretion, and we do not reverse a ruling on the admission of evidence absent an abuse of that discretion. Bullock v. State, 353 Ark. 577, 111 S.W.3d 380 (2003). Additionally, this court will not reverse an evidentiary ruling absent a showing of prejudice. Sauerwin v. State, 363 Ark. 324, 214 S.W.3d 266 (2005). All relevant evidence is admissible, except as otherwise provided by statute or court rule. Ark. R. Evid. 402. Evidence which is not relevant is not admissible. Id. Pursuant to Rule 401 of the Arkansas Rules of Evidence:\n\u201cRelevant evidence\u201d means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.\nSelf-defense in Arkansas is defined in pertinent part as follows:\n(a)(1) A person is justified in using physical force upon another person to defend himself or herself or a third person from what the person reasonably believes to be the use or imminent use of unlawful physical force by that other person, and the person may use a degree of force that he or she reasonably believes to be necessary.\nArk. Code Ann. \u00a7 5-2-606 (Repl. 1997). McKeever argues that, under this standard the reasonable belief of the defendant is paramount and, thus, threats communicated from the victim to the defendant are relevant to show the reasonableness of the defendant\u2019s belief that harm to himself is imminent.\nMcKeever states that the relevance of such threats is clear, and the fact that, in this case, one of the threats was computer-generated should go only to the weight, not the admissibility, of the threat. McKeever also states that his credibility was a central issue in this case. He avers that at the first trial \u2014 the one in which the jury hung \u2014 his testimony that he was frightened for his life was considerably buttressed by his mother\u2019s testimony about the threats she received. He argues that even if computer-generated, the threat greatly illuminates his state of mind prior to the shooting and drastically changes the tenor of his claim of reasonable belief that he was in danger.\nWe agree with McKeever that the circuit court\u2019s exclusion of the evidence was in error; however, we will not reverse because McKeever has failed to demonstrate that he was prejudiced by the circuit court\u2019s ruling. It is important to note that only the testimony concerning the computer-generated threat was excluded. The State did not move in limine to exclude Curry\u2019s testimony about the threats she received from Larry Anderson and Adrian Thompson. Thus, it follows that the circuit court\u2019s ruling did not exclude that testimony, and McKeever could have elicited that testimony from Curry. McKeever\u2019s objective \u2014 to buttress his own testimony with his mother\u2019s testimony about the threats she received \u2014 could have been accomplished by calling his mother to testify about the threats she received from Larry Anderson and Adrian Thompson. McKeever failed to present a proffer or otherwise show how he was prejudiced by the exclusion of testimony regarding the computer-generated voice when he could have put Curry on the stand to testify to the voice threats she could identify.\nMcKeever\u2019s second point on appeal is that the circuit court erred in sentencing him to multiple firearm enhancements under Ark. Code Ann. \u00a7 16-90-120. In this case, McKeever was accused of having fired three shots into a vehicle and wounding two of the vehicle\u2019s three occupants. For this conduct, he was charged with three separate counts of committing a terroristic act under Ark. Code Ann. \u00a7 5-13-310(a)(l) (Repl. 1997). The State then sought and received jury instructions allowing the jury to fix three separate firearm enhancements pursuant to Ark. Code Ann. \u00a716-90-120.\n\u201c[A] person commits a terroristic act when, while not in the commission of a lawful act, [h]e shoots at or in any manner projects an object with the purpose to cause injury to persons or property at a conveyance which is being operated or which is occupied by passengers[.]\u201d Ark. Code Ann. 5-13-310(a)(l) (Repl. 1997). In this case, McKeever shot three successive bullets into a car using one firearm, and during one incident. McKeever acknowledges that committing a terroristic act is not a continuous-course-of-conduct crime, and that the three shots may be properly charged as three separate crimes. See McLennan v. State, 337 Ark. 83, 987 S.W.2d 668 (1999) (holding that appellant\u2019s firing three shots into an apartment constituted three separate terroristic acts for the purpose of Ark. Code Ann. \u00a7 5-13-310).\nMcKeever argues that this court must determine whether a sentencing court under Ark. Code Ann. \u00a7 16-90-120 can sentence an offender to serve multiple firearm enhancements for one incident. He contends that it does not necessarily follow that once conduct is charged as three separate crimes, then the State can automatically get three enhancements stacked one on top of the other.\nThe issue before the court is one of statutory interpretation. The basic rule of statutory interpretation is to give effect to the intent of the legislature. Bramlett v. State, 356 Ark. 200, 148 S.W.3d 278 (2004). We construe the statute just as it reads, giving the words their ordinary and usually accepted meaning. Id. In addition, when the language of a statute is plain and unambiguous and conveys a clear and definite meaning, there is no need to resort to rules of statutory interpretation. Id.\nThe firearm-enhancement statute, Ark. Code Ann. \u00a7 16-90-120, provides in relevant part:\n(a) Any person convicted of any offense which is classified by the laws of this state as a felony who employed any firearm of any character as a means of committing or escaping from the felony, in the discretion of the sentencing court, may be subjected to an additional period of confinement in the state penitentiary for a period not to exceed fifteen (15) years.\n(b) The period of confinement, if any, imposed pursuant to this section shall be in addition to any fine or penalty provided by law as punishment for the felony itself. Any additional prison sentence imposed under the provisions of this section, if any, shall run consecutively and not concurrently with any period of confinement imposed for conviction of the felony itself.\n(Emphasis added.)\nThe plain language of the firearm-enhancement statute shows that the legislature intended for it to apply to \u201cany offense ... in addition to any fine or penalty provided by law as punishment for the felony itself.\u201d Ark. Code Ann. \u00a7 16-90-120. In the instant case, McKeever committed three separate criminal offenses, and each of those three offenses was committed with a firearm. As such, each of the offenses was subject to a sentence enhancement under Ark. Code Ann. \u00a7 16-90-120.\nStill, McKeever argues that in pulling a gun and firing at the car, he committed only one act that the legislature sought to punish under the firearm-enhancement statute \u2014 that is to say, he used one firearm in one violent incident. Thus, he appears to contend that since he used only one firearm in one incident during the commission of three separate offenses, he is subject only to one enhancement. We disagree. This court rejected a similar argument in Welch v. State, 269 Ark. 208, 599 S.W.2d 717 (1980). In that case, appellant argued that the punishment for each of the three offenses could not be enhanced under the firearm-enhancement statute because all three offenses were parts of a single criminal episode. We stated:\nEven so, the robbery and the two rapes were separate offenses, each of which could have been committed with or without a firearm. No double jeopardy is involved, because there is no constitutional barrier to the enhancement of the separate punishment for each of three distinct crimes, all of which were committed with a firearm.\nWelch, 269 Ark. at 212, 599 S.W.2d at 720. Likewise, in the instant case, each terroristic act was a separate offense, each of which could have been committed with or without a firearm. Each of the three distinct crimes was committed with a firearm; thus, each crime was subject to enhancement. The circuit court did not err in sentencing McKeever to multiple firearm enhancements under Ark. Code Ann. \u00a7 16-90-120.\nAffirmed.\nGlaze and Dickey, JJ., concur.", "type": "majority", "author": "Jim Hannah, Chief Justice." }, { "text": "Tom Glaze, Justice,\nconcurring. While I agree to affirm, I disagree with the majority\u2019s conclusion that the circuit court erred. The State moved in limine to exclude the testimony concerning a computer-generated-voice threat, arguing hearsay, relevancy, and prejudice. Specifically, the State submitted that because McKeever\u2019s mother had no idea who the person was on the other end of the phone, she should not be allowed to testify concerning the content of that person\u2019s remarks because the content of those remarks was hearsay, irrelevant, and unfairly prejudicial. The circuit court granted the State\u2019s motion. However, on appeal, McKeever only argues that the circuit court erred on the relevancy issue. He simply ignores the hearsay and prejudicial grounds ruled on by the circuit court.\nIn order to prove error, McKeever was required to argue that the computer-generated-voice threat was not only relevant, but also that it was not inadmissible hearsay or the threat was not unfairly prejudicial. For instance, evidence, even though relevant, can be excluded under the other rules of evidence. See Ark. R. Evid. 402. In other words, even though the circuit court may have erred in ruling that the evidence was irrelevant (as concluded by the majority), the circuit court\u2019s ruling could have been upheld as evidence that was inadmissible hearsay or unfairly prejudicial. See Ark. R. Evid. 801 et seq. and Ark. R. Evid. 403.\nBecause McKeever failed to address these two additional arguments raised by the State, and ruled on by the circuit court, this court should not conclude the circuit court erred merely by ruling that the computer-generated-voice threat was relevant.\nDickey, J., joins.\nThe State, in its reply brief, argued that the testimony was inadmissible hearsay and irrelevant. The State\u2019s analysis of this point demonstrates that it, too, understood that McKeever was required to address the additional grounds argued by the State and ruled on by the circuit court in order for us to conclude circuit court error.", "type": "concurrence", "author": "Tom Glaze, Justice," } ], "attorneys": [ "William R. Simpson, Jr., Public Defender, Brandy Turner, Deputy Public Defender, by: Erin Vinett, for appellant.", "Mike Beebe, Att\u2019y Gen., by: Lindsey K. Bell, Ass\u2019t Att\u2019y Gen., for appellee." ], "corrections": "", "head_matter": "Mark McKEEVER v. STATE of Arkansas\nCR 06-464\n240 S.W.3d 583\nSupreme Court of Arkansas\nOpinion delivered October 5, 2006\nWilliam R. Simpson, Jr., Public Defender, Brandy Turner, Deputy Public Defender, by: Erin Vinett, for appellant.\nMike Beebe, Att\u2019y Gen., by: Lindsey K. Bell, Ass\u2019t Att\u2019y Gen., for appellee." }, "file_name": "0374-01", "first_page_order": 398, "last_page_order": 405 }