Arkansas Code, Volume 3A, 2013 Supplement

2013·29.8 MB·English

by  State of Arkansas

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TITLE
5
CRIMINAL OFFENSES
(CHAPTERS 50-79 IN VOLUME 3B)
SUBTITLE GENERAL PROVISIONS
1.
CHAPTER.
GENERAL PROVISIONS.
1.
2. PRINCIPLES OF CRIMINAL LIABILITY.
DISPOSITION OF OFFENDERS.
4.
DISPOSITION OF CONTRABANDAND SEIZED PROPERTY.
5.
SUBTITLE OFFENSESAGAINST THE PERSON
2.
CHAPTER.
10. HOMICIDE.
11. KIDNAPPINGAND RELATED OFFENSES.
13. ASSAULTAND BATTERY.
SEXUAL OFFENSES.
14.
16. VOYEURISM OFFENSES.
18. THE HUMAN TRAFFICKINGACT OF 2013.
SUBTITLE 3. OFFENSES INVOLVING FAMILIES, DEPENDENTS, ETC
CHAPTER.
26. OFFENSES INVOLVING THE FAMILY.
OFFENSESAGAINST CHILDREN OR INCOMPETENTS.
27.
28. ABUSE OFADULTS.
SUBTITLE OFFENSESAGAINSTPROPERTY
4.
CHAPTER.
36. THEFT.
37. FORGERYAND FRAUDULENT PRACTICES.
DAMAGE OR DESTRUCTION OF PROPERTY.
38.
39. BURGLARY, TRESPASS,AND OTHER INTRUSIONS.
40. PUBLIC LANDS.
41. COMPUTER-RELATED CRIMES.
SUBTITLE GENERAL PROVISIONS
1.
CHAPTER
1
GENERAL PROVISIONS
SECTION. SECTION.
5-1-102. Definitions. 5-1-110. Conduct constitut—ing more than
5-1-109. Statute oflimitations. oneoffense Prosecution.
5-1-102 CRIMINAL OFFENSES 2
5-1-102. Definitions.
As used in the Arkansas Criminal Code:
(1) "Act" or "action" means the same as defined in § 5-2-201;
(2) "Actor" includes, when appropriate, a person who possesses
something or who omits to act;
(3) "Conduct" means the same as defined in § 5-2-201;
(4) "Deadly weapon" means:
A
(A) firearm or anything manifestly designed, made, or adapted
for the purpose ofinflicting death or serious physical injury; or
(B) Anything that in the manner of its use or intended use is
capable ofcausing death or serious physical injury;
(5) "Element of the offense" means the conduct, the attendant
circumstances, or the result ofconduct that:
(A) Is specified in the definition ofthe offense;
(B) Establishes the kind of culpable mental state required for
commission ofthe offense; or
(C) Negates an excuse orjustification for the conduct;
(6)(A) "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.
(B) "Firearm" includes:
A
(i) device described in subdivision (6)(A) ofthis sectionthatis not
loaded or lacks a clip or another component to render it immediately
operable; and
(ii) Components that can readily be assembled into a device
described in subdivision (6)(A) ofthis section;
(7) "Included offense" means the same as defined in § 5-l-110(b);
(8)(A) "Knowingly" or an equivalent term such as "knowing", "with
knowledge", "willful", or "willfully" means the same as "knowingly"
defined in § 5-2-202.
(B) However, ifthe statute clearly indicates a legislative intent to
require a culpable mental state of"purposely", "willful" or "willfully"
means the same as "purposely" defined in § 5-2-202;
(9) "Law" includes a statute or court decision;
(10) "Law enforcement officer" means any public servant vested by
law with a duty to maintain public order or to make an arrest for an
offense;
(11) "Negligently" or an equivalent term such as "negligence" or
"with negligence" means the same as defined in § 5-2-202;
(12) "Omission" or "omit to act" means the same as defined in
§ 5-2-201;
(13)(A) "Person", "actor", "defendant", "he", "she", "her", or "him"
includes:
(i) Any natural person; and
(ii) When appropriate, an "organ—ization" as defined in § 5-2-501.
(B)(i)ra; As used in §§ 5-10-101 5-10-105, "person" also includes
an unborn child in utero at any stage ofdevelopment.
3 GENERAL PROVISIONS 5-1-102
(b) "Unborn child" means offspring ofhuman beings from concep-
tion until birth.
(ii) This subdivision (13)(B) does not apply to:
(a) An act that causes the death ofan unborn child in utero ifthe
act was committed during a legal abortion to which the woman
consented, including an abortion performed to remove an ectopic
pregnancy or other nonviable pregnancy when the embryo is not
going to develop further;
(b) An act that is committed pursuant to a usual and customary
standard ofmedical practice during diagnostic testing or therapeutic
treatment;
(c) An act that is committed in the course of medical research,
experimental medicine, or an act deemed necessary to save the life or
preserve the health ofthe woman;
(d) Assisted reproduction technology activity, procedure, or treat-
ment; or
(e) An act occurring before transfer to the uterus ofthe woman of
an embryo created through in vitro fertilization.
(iii) Nothing in this subdivision (13)(B) shall be construed to allow
the charging or conviction of a woman with any criminal offense in
the death ofher own unborn child in utero;
(14) "Physical injury" means the:
(A) Impairment ofphysical condition;
(B) Infliction of substantial pain; or
(C) Infliction of bruising, swelling, or a visible mark associated
with physical trauma;
(15) "Possess" means to exercise actual dominion, control, or man-
agement over a tangible object;
(16) "Public servant" means any:
(A) Officer or employee ofthis state or ofany political subdivision
ofthis state;
(B) Person exercising a function of any officer or employee ofthis
state or any political subdivision ofthis state;
(C)(i) Person acting as an adviser, consultant, or otherwise in
performing any governmental function.
(ii) However, this subdivision (16)(C) does not include awitness; or
(D) Person elected, appointed, or otherwise designated to become a
public servant although not yet occupying that position;
(17) "Purposely" or an equivalent term such as "purpose", "with
purpose", "intentional", "intentionally", "intended", or "with intent to"
means the same as "purposely" as deflned in § 5-2-202;
(18) "Reasonably believes" or "reasonable belief means a belief:
(A) That an ordinary and prudent person would form under the
circumstances in question; and
(B) Not recklessly or negligently formed;
(19) "Sawed-offor short-barreled rifle" means:
(A) A rifle having one (1) or more barrels less than sixteen inches
(16") in length; or
5-1-102 CRIMINAL OFFENSES 4
(B) Any weapon made from a rifle, whether by alteration, modifi-
cation, or otherwise, ifthe weapon, as modified, has an overall length
ofless than twenty-six inches (26");
(20) "Sawed-off or short-barreled shotgun" means:
(A) A shotgun having one (1) or more barrels less than eighteen
inches (18") in length; or
(B) Any weapon made from a shotgun, whether by alteration,
modification, or otherwise, ifthe weapon, as modified, has an overall
length ofless than twenty-six inches (26");
(21) "Serious physical injury" means physical injury that creates a
substantial risk of death or that causes protracted disfigurement,
protracted impairment of health, or loss or protracted impairment of
the function of any bodily member or organ; and
(22) "Statute" includes theArkansas Constitution and any statute of
this state, any ordinance ofa political subdivision ofthis state, and any
rule or regulation lawfully adopted by an agency ofthis state.
History. Acts 1975, No. 280, § 115; substituted "offspring of human beings
A.S.A. 1947, § 41-115;Acts 1994 (2nd Ex. fromconceptiontobirth"for"ahvingfetus
Sess.), No. 45, § 2; 1999,No. 1273, §§ 1-3; oftwelve (12) weeks or greater gestation"
1999, No. 1476, § 1; 2005, No. 1994, in (13)(B)(i)(b); added the ending to in
§ 442; 2007, No. 827, § 11; 2013, No. (13)(B)(ii)(a) beginning "including an
1032, § 1. abortion"; and added (13)(B)(ii)(d) and
Amendments. The 2013 amendment (13)(B)(ii)(e).
CASE NOTES
Analysis self-defense orthe defenseofathirdparty
under § 5-13-204(c)(2). United States v.
Element ofOffense. Raglin, 500 F.3d 675 (8th Cir. 2007).
Person. Person.
Physical Injury. DistrictcourtconcludedthattheArkan-
Possess. sas Supreme Court would extend its deci-
Reasonable Belief. sion in Aka, which held that wrongful
Serious Physical Injury.
death suits could be brought on behalfof
Element ofOffense. unborn, viable fetuses, to allow a negli-
Because defendant presented evidence gence suit to be filed on a child's behalf,
arguably supporting selfdefense or ajus- seeking to recover for alleged negligently
tification defense to a charge of aggra- inflicted injuries that the child sustained
vated assault under Arkansas law, the in utero. The district court noted that the
governmenthadto negatethat defenseby state supreme courthadfoundpersuasive
a preponderance of the evidence for an the state legislature's decision to expand
enhancementforusingthefirearmincon- the definition of"person" in the homicide
nection with another felony offense under andprobatelaws, subdivision (13)(B)(i)(b)
U.S. Sentencing Guidelines Manual of this section, § 28-1-118(a), to include
§ 2K2.1(b)(5) [now (b)(6)] (2005), to apply viable fetuses, thereby giving statutory
because whether circumstances negated protection to unborn children, and that it
defendant's excuse orjustification was an would be absurd to thinkthat less protec-
element of the offense under subdivision tion would be provided under Arkansas
(5)(C) of this section, which had to be law to children who suffered in utero
proved by the state under § 5-l-lll(a)(l), injury, but nevertheless managed to be
and the definition of aggravated assault born. Crussell v. Electrolux Home Prods.,
expressly excluded any person acting in 499 F. Supp. 2d 1137 (W.DArk. 2007).
5 GENERAL PROVISIONS 5-1-102
Physical Injury. Possess.
Defendant's suspended sentence was Evidence was sufficient to support de-
properly revoked under § 5-4-309(d), fendant's conviction ofpossession ofdrug
where the state proved that defendant paraphernaliawithintenttomanufacture
committed third-degree domestic battery because the jury could reasonably con-
under § 5-26-305(a), by showing that de- clude that defendant constructively pos-
fendant inflicted physical injury under sessed the paraphernalia with intent to
subdivision (14) ofthis section by pulling manufacture where defendant owned the
his wife's hair and throwingher against a property jointly with his wife, defendant
vehicl—e. Andrew—s v. State, 2009Ark. App. wastheonlypersoninthehousewhenthe
624, S.W.Sd (2009). police arrived, and defendant admitted to
Duringa hearingon the state's petition the officers that the methamphetamine
to revoke a defendant's suspended sen- lab inthehome was his. Cantrellv. State,
tence, defendantadmittedthatheslapped 2009Ark. 456, 343 S.W.3d 591 (2009).
his pregnantwife and arespondingofficer When a rape victim testified at defen-
testified to a personal observation of the
dant's probation revocation hearing that
swollen knot on the wife's cheek and knot he had a gun at the time ofthe rape, that
over the wife's right eye from being hit; testimony was sufficient for the court to
this evidence was sufficient to find that find that he had possessed a firearm
defendant inexcusably violated a condi-
tion of that suspension and that defen- within the meaning of § 5-73-103(a)(l)
danthad committed the offense ofdomes- and subdivision (15) ofthis se—ction. Crai—g
tic battery in the third deg—ree. May—v. V State, 2010Ark. App. 309, S.W.3d
State, 2009 Ark. App. 703, S.W.3d (2010).
Evidence that there was a funnel, plas-
(2009).
Teacher'stestimonyalonewas sufficient tic tubing, coffee filters, camp fuel, sy-
evidence ofphysical injury to support de- ringes, gloves, a metal spoon, a smoking
fendantjuvenile's adjudication for second device, a bag of ammonia nitrate, and a
degreeinviolation of§ 5-13-202 forstrik- pill crusher in the master bedroom of
ing the teacher in the arm because the defendant's home, along with a burn bar-
teacher testified that after appellant hit rel in the back yard, was sufficient to
her, the pain she suffered in her arm was support a conviction for possession of
ofa sufficient nature to cause her to seek paraphernalia with intent to manufac-
medical treatment, and she also testified ture. Gowen v State, 2011 Ark. App. 761,
thather armwas "verysore"for atleast a 387 S.W.3d 230 (2011).
week; while medical treatment is not re- Reasonable Belief.
quired in order to establish a physical Because ajuvenile's father had not re-
injury, the factthe painwas ofa sufficient sortedtouseofadeadlyweaponduringan
natureto causethevictimto seekmedical argument, because there had been an in-
care constitutes evidence that she experi- terlude of approximately five minutes
enced "substantial pain." M. T. v. State, since theirlast confrontation, because the
2009 Ark. App. 761, 350 S.W.3d 792 father, at the time he was struck, had
(2009). turned away from the juvenile, and be-
Revocation of defendant's suspended
cause the juvenile did not testify as to
imposition ofsentence for two felony con- whether the juvenile's beliefs were rea-
victions was appropriate because the cir- sonable, the juvenile lacked justification
cuit court's finding that she committed under subdivision (18) ofthis section and
third-degree domestic battering and thus §§ 5-2-606(a)(l), 5-2-607(a)(l), (2), and
violated the condition that she break no was properly adjudicated as a delinquent
laws, was not clearly against the prepon- for second-degree domestic batterin—g.
wdearsanscueffiocfietnhtetoevpirdoevncee.thaTth,eeittehsetrimpounry- DS..WW..3dV.—St(a2t0e1,1).2011 Ark. App. 187,
posefully or recklessly, she struck her
nephew andcausedhimphysicalinjuryin Serious Physical Injury.
theformofsubstantialpainunder§ 5-26- Evidence was sufficient to show that
305(a) and subdivision (14) ofthis sectio—n. defendant acted "under circumstances
Westbro—okv State, 2011Ark.App. 615, manifesting extreme indifference to the
S.W.3d (2011). value of human life" and to sustain his
5-1-103 CRIMINAL OFFENSES 6.
conviction for first degree batterybecause timwas unable to participate in activities
defendant admittedly placed a child in a that he enjoyed before sustaining the in-
tubofwatersohotthatitseveredtheskin jury, such as plajdng basketball, and had
from his feet, and defendant's own state- visible scarringfrom the entry and exit of
ments, although inconsistent, supported the bullet; this evidence was sufficient to
the conclusion that he knew that it was support thejury's factual findingthat the
his responsibility to properly supervise victim suffered a serious physical injury
the child during a bath and to ensure a as aresultofdefendant'sactions. Butlerv.
safe water temperature and that he con- State, 2009Ark.App. 695, 371 S.W.3d 699
sciously disregarded the risks involved. (2009)
.
BellV. State, 99Ark.App. 300, 259 S.W.3d Defendant's conviction for aggravated
472 (2007). assault was proper because there was
Where defendant stepped out ofhis mo- evidence that defendant's conduct created
tel room and fired a .45 caliber semiauto- a substantial risk of serious physical in-
matic pistol through the windshield of a jury, as defined in subdivision (21) ofthis
nearby car, striking all three occupants section; defendant hit the victim with the
and killingtwo ofthem, the evidence was butt of a pistol with sufficient force to
sufficient to support defendant's convic- knock the victim down, breaking facial
tion ofcommitting a terroristic act under bonesandcausingthevictim'seyetoswe—ll
§ 5-13-310(a)(l)(A) and (B) as tothe third shut. Pit—tsV. State, 2012Ark.App. 228,
victim because the evidence established S.W.3d (2012).
that the third victim was shot in the foot, During parents' trial for first-degree
and the court rejected defendant's argu- battery against their infant, the court did
ment that the evidence was insufficient not err in refusing to instruct thejury on
for failing to establish that the victim the lesser-included offense ofthird-degree
suffereda"seriousphysicalinjury"asthat battery because the physical injury the
term is defined in subdivision (21) ofthis infant sustained could only be described
section. The evidence was sufficient to as serious under subdivision (21) of this
establish that the victim suffered a seri- section; the infant was severely malnour-
ous physical injury because the victim ished to the point ofstarvation and death
suffered a gunshot wound from a .45 cali- would have occurred within days without
ber semiautomatic pistol thatwas serious medical a—ttention. —Bruner v. State, 2013
enough to warrant emergency medical Ark. 68, S.W.3d (2013).
care, the victim continued to experience Cited: Kalev.Ark. State Med. Bd., 367
pain and tenderness while walking and Ark. 151, 238S.W.3d89(2006—);Autrand—v.
was often unable to wear shoes due to the State, 2010 Ark. App. 245, S.W.3d
lasting effects ofthe wound, and the vic- (2010)
.
5-1-103. Applicability to offenses generally.
CASE NOTES
Cited: Ark. Dep't ofCorr. v. Williams,
2009 Ark. 523, 357 S.W.3d 867 (2009).
5-1-104. Territorial applicability.
CASE NOTES
Jurisdiction. her computerbyvirtue ofhis email corre-
Arkansas trial court had jurisdiction spondence for the purpose of obtaining
over defendant, a Georgia resident, dur- money with a false or fraudulent intent,
ing his trial for theft of property and representation, or promise. Powell v.
computer fraud where defendant caused State, 97 Ark. App. 239, 246 S.W.3d 891
thevictim,anArkansasresident,toaccess (2007).
7 GENERAL PROVISIONS 5-1-109
5-1-107. Misdemeanors.
CASE NOTES
Jurisdiction. violating an AGFC regulation was a mis-
According to the plain language ofsub- demeanor;therefore,whiletheBickerstaff
section (a) ofthis section, because aviola- case set forth a holding that the only
tionofanyArkansas GameandFishCom- penaltyforviolatingtheAGFC regulation
mission (AGFC) regulation carried a was a fine, that was an incorrect state-
penalty that could include imprisonment ment of the law. State v. Herndon, 365
butwas not designated afelony the act of Ark. 185, 226 S.W.Sd 771 (2006).
5-1-108. Violations.
CASE NOTES
Cited: State v. Herndon, 365Ark. 185,
226 S.W.Sd 771 (2006—); William—s v. State,
2009Ark. App. 554, S.W3d (2009).
5-1-109. Statute of limitations.
(a)(1) Aprosecution for the following offenses may be commenced at
any time:
(A) Capital murder, § 5-10-101;
(B) Murder in the first degree, § 5-10-102;
(C) Murder in the second degree, § 5-10-103;
(D) Rape, § 5-14-103, ifthe victim was a minor at the time ofthe
offense;
(E) Sexual indecency with a child, § 5-14-110;
(F) Sexual assault in the first degree, § 5-14-124;
(G) Sexual assault in the second degree, § 5-14-125, ifthe victim
was a minor at the time ofthe offense;
(H) Incest, § 5-26-202, ifthe victim was a minor at the time ofthe
offense;
(I) Engaging children in sexually explicit conduct for use in visual
or print medium, § 5-27-303;
(J) Transportation ofminors for prohibited sexual conduct, § 5-27-
305;
(K) Employing or consenting to the use of a child in a sexual
performance, 5-27-402;
§
(L) Producing, directing, or promoting a sexual performance by a
child, § 5-27-403; and
(M) Computer exploitation of a child in the first degree, § 5-27-
605.
(2) A prosecution may be commenced for a violation ofthe following
offenses, if, when the alleged violation occurred, the offense was
committed against a minor, the violation has not been previously
reported to a law enforcement agency or prosecuting attorney, and the
victim has not reached the age oftwenty-eight (28) years of age:
(A) Sexual assault in the third degree, § 5-14-126;
5-1-109 CRIMINAL OFFENSES 8
(B) Sexual assault in the fourth degree, § 5-14-127;
(C) Endangering the welfare ofa minor in the first degree, § 5-27-
205;
(D) Permitting abuse of a minor, § 5-27-221; and
(E) Computer child pornography, § 5-27-603.
(b) Except as otherwise provided in this section, a prosecution for
another offense shall be commenced within the following periods of
limitation after the offense's commission:
Y A
(1)(A) Class felony or Class felony, six (6) years.
(B) However, for rape, § 5-14-103, the period of limitation is
eliminated ifbiological evidence of the alleged perpetrator is identi-
fied that is capable of producing a deoxyribonucleic acid (DNA)
profile;
(2) Class B felony. Class C felony. Class D felony, or an unclassified
felony, three (3) years;
(3)(A) Misdemeanor or violation, one (1) year.
(B) However, for failure to notify by a mandated reporter in the
first degree, § 12-18-201, and failure to notify by a mandated
reporter in the second degree, § 12-18-202, the period oflimitation is
ten (10) years after the child victim reaches eighteen (18) years ofage
ifthe child in question was subject to child maltreatment; and
(4) Municipal ordinance violation, one (1) year unless a different
period of time not to exceed three (3) years is set by ordinance of the
municipal government.
(c) If the period prescribed in subsection (b) of this section has
expired, a prosecution may nevertheless be commenced for:
(1) Any offense involving either fraud or breach of a fiduciary
obligation, within one (1) year after the offense is discovered or should
reasonably have been discovered by an aggrieved party or by a person
who has a legal dutyto represent an aggrieved party andwho is himself
or herselfnot a party to the offense; and
(2)(A) Any offense that is concealed involving felonious conduct in
office by a public servant at any time within five (5) years after he or
she leaves public office or employment or within five (5) years after
the offense is discovered or should reasonably have been discovered,
whichever is sooner.
(B) However, in no event does this subdivision (c)(2) extend the
period oflimitation by more than ten (10) years after the commission
ofthe offense.
(d) A defendant may be convicted of any offense included in the
offense charged, notwithstanding that the period of limitation has
expired for the included offense, ifas to the offense charged the period
of limitation has not expired or there is no period of limitation, and
there is sufficient evidence to sustain a conviction for the offense
charged.
(e)(1) For the purposes ofthis section, an offense is committed either
when:
(A) Every element occurs; or