Cite as

Digitally signed by Elizabeth ARKANSAS COURT OF APPEALS Perry DIVISION IV Date: 2022.08.03 13:23:32 -05'00' No. CR-19-152 Adobe Acrobat version: 2022.001.20169 Opinion Delivered: October 2, 2019 GARY G. SEYLLER, JR. APPELLANT APPEAL FROM THE CLEBURNE V. COUNTY CIRCUIT COURT [NO. 12CR-18-81] STATE OF ARKANSAS APPELLEE HONORABLE TIM WEAVER, JUDGE

AFFIRMED

RITA W. GRUBER, Chief Judge

Appellant Gary G. Seyller, Jr., was convicted by a Cleburne County Circuit Court

jury of possession of a firearm by certain persons pursuant to

-

103(c)(1)(A) (Repl. 2016), a Class B felony. He was sentenced as a habitual offender to

twelve years’ imprisonment. On appeal, appellant argues that the circuit court erred as a

matter of law in finding that a prior federal conviction was a violent-felony conviction as

contemplated by

(c)(1)(A) and 5-73-101(11) (Supp. 2017).

We affirm.

On March 26, 2018, appellant was charged with five offenses: (1) possession of

firearms by certain persons under

(c)(2), a Class D felony; (2)

criminal impersonation under

(b)(1)(A), a Class A misdemeanor;

(3) obstruction of governmental operations under

(b)(1), a Class

A misdemeanor; (4) driving with a suspended license under

- 303(a)(1), an unclassified misdemeanor; and (5) failure to register/expired tags under

, an unclassified misdemeanor. The State amended the felony

information on October 24, 2018, changing the possession-of-firearms charge by certain

persons to a Class B felony under

(c)(1)(A), alleging that

appellant had a prior violent-felony conviction. A jury trial took place on October 26, 2018.

At the beginning of trial, appellant’s counsel objected to the State’s amendment of

the possession charge, arguing that appellant’s federal conviction for aggravated assault under

(a)(3), which was relied on to amend the charge from a Class D to a Class

B felony, did not qualify as a prior violent-felony conviction under

-

73-101(11). The State argued that appellant pled guilty to aggravated assault, indicating that

the federal indictment provided that appellant “did assault with a dangerous weapon, namely

his vehicle, Cleburne County Deputy Bernum . . . with the intent to do bodily harm”; and

that the offense meets the definition of a violent felony. Appellant’s counsel responded that

(11) requires the prior conviction to have one of the four

elements set out in section 5-73-101(11)(A)–(D) as an element of the offense and that the

facts related to the prior conviction do not matter. The State responded that the conviction

at issue met the definition of a violent felony under subdivisions (11)(B) and (D). The circuit

court ruled that the prior conviction met the definition of a violent felony under

subdivisions (11)(B) and (D).

The only count submitted to the jury was the possession charge because the State

nolle prossed the other four counts. The jury found appellant guilty and sentenced him as a

habitual offender to twelve years’ imprisonment.

2 We review issues of statutory construction de novo. Thompson v. State,

,

. We construe criminal statutes strictly, resolving any doubts

in favor of the defendant.

We also adhere to the basic rule of statutory construction,

which is to give effect to the intent of the legislature.

We construe the statute just as it

reads, giving the words their ordinary and usually accepted meaning in common language,

and if the language of the statute is plain and unambiguous, and conveys a clear and definite

meaning, there is no occasion to resort to rules of statutory interpretation.

A statute is

ambiguous only where it is open to two or more constructions, or where it is of such

obscure or doubtful meaning that reasonable minds might disagree or be uncertain as to its

meaning. Magness v. State,

,

.

Pursuant to

(a), it is unlawful for a convicted felon to

possess a firearm. The offense is a Class B felony if the person has a prior violent-felony

conviction under

(c)(1)(A). Arkansas Code Annotated section

5-73-101(11) defines violent-felony conviction:

(11) “Violent felony conviction” means a conviction for any felony offense against the person which is codified in § 5-10-101 et seq., § 5-11-101 et seq., § 5- 12-101 et seq., § 5-13-201 et seq., § 5-13-301 et seq., § 5-14-101 et seq., and § 5- 14-201 et seq., or any other offense containing as an element of the offense one (1) of the following:

(A) The use of physical force; (B) The use or threatened use of serious physical force; (C) The infliction of physical harm; or (D) The creation of a substantial risk of serious physical harm.

Thus, for purposes of

(c)(1)(A), a conviction for an offense that

is not specifically listed must contain as an element one of the elements set out in

(11)(1)(A)–(D). Whether a prior felony is a violent felony is a question of

3 law. Ferguson v. State,

,

(2005) (stating “the violent

nature of the felony was not an essential element that the prosecution had to prove to the

jury; it merely had to be demonstrated to the judge”).

The 2005 federal conviction at issue resulted from appellant’s guilty plea to a charge

of aggravated assault, a Class C felony, under

(a)(3), which provides that

“[w]hoever, within the special maritime and territorial jurisdiction of the United States, is

guilty of an assault shall be punished as follows: . . . (3) Assault with a dangerous weapon,

with intent to do bodily harm, by a fine under this title or imprisonment for not more than

ten years, or both.”

Assault with a dangerous weapon under the federal statute contains the following

elements: (1) the defendant assaulted the victim; (2) the defendant intended to do bodily

harm; (3) the defendant used a dangerous weapon to commit the assault; and (4) the offense

took place within the territorial jurisdiction of the United States. United States v. Herron,

No. CR. 06-50063-RHB,

, at *3 (D.S.D. Apr. 26, 2007), aff’d,

(8th Cir. 2008). Assault under the federal statute is defined by common law as an offer

or attempt by force or violence to do a corporal injury to another. United States v. Yates,

(8th Cir. 2002) (citing United States v. Bear Ribs,

(8th

Cir. 1977)). A dangerous weapon is defined as an object capable of inflicting bodily injury.

United States v. Steele,

(8th Cir. 2008). Thus, the question is whether

appellant’s conviction for assault with a dangerous weapon pursuant to

(a)(3)

contains one of the four elements set out in

(11)(A)–(D).

4 In support of their arguments, both parties argue that the statute is unambiguous. We

agree and hold that “assault with a dangerous weapon” in

(a)(3) contains

the element listed in

(11)(B)—the use or threatened use of

serious physical force.

Assault under the federal statute includes the threatened use of force. Physical force

is not defined in our state’s general criminal definitions, but it is defined by the subchapters

on justification and robbery as “any bodily impact, restraint, or confinement” or the “threat

of any bodily impact, restraint, or confinement.”

(6) & § 5-12-

101. Notably, the term “serious physical force” is not defined in the Arkansas Code. Black’s

Law Dictionary defines “serious” as “dangerous” or “potentially resulting in death or other

severe consequences.” Black’s Law Dictionary 1399 (8th ed. 2004).

Giving the word “serious” its usual and ordinary meaning, assault with a dangerous

weapon requires serious physical force. The threat of bodily impact, restraint, or

confinement when committed with a dangerous weapon is a threat of serious force. Thus,

appellant’s conviction under

(a)(3) qualifies as a violent felony under

(11)(B).

Because we hold that the federal offense qualifies as a violent felony under

(11)(B), we need not address whether it qualifies under the other sections.

Affirmed.

HARRISON and MURPHY, JJ., agree.

Denton and Zachary, PLLC, by: Joe A. Denton, for appellant.

Leslie Rutledge, Att’y Gen., by: Chris R. Warthen, Ass’t Att’y Gen., for appellee.

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