Raymond v. State

118 S.W.3d 567, 354 Ark. 157, 2003 Ark. LEXIS 484, 2003 WL 22208755
CourtSupreme Court of Arkansas
DecidedSeptember 25, 2003
DocketCR 02-1202
StatusPublished
Cited by60 cases

This text of 118 S.W.3d 567 (Raymond v. State) is published on Counsel Stack Legal Research, covering Supreme Court of Arkansas primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Raymond v. State, 118 S.W.3d 567, 354 Ark. 157, 2003 Ark. LEXIS 484, 2003 WL 22208755 (Ark. 2003).

Opinion

Robert L. Brown, Justice.

Appellant Daniel Raymond appeals from a conviction for the obstruction of shooting, hunting, fishing, or trapping activities in violation of Arkansas Code Ann. § 5-71-228 (Repl. 1997), a misdemeanor. Raymond was sentenced to thirty days’ confinement, which was suspended; a five-hundred-dollar fine, which was suspended; and one hundred and fifty dollars in court costs. He raises two points on appeal: (1) that the circuit court erred in finding § 5-71-228 to be constitutional under the United States Constitution; and (2) that the circuit court erred in finding that he violated § 5-71-228. The State argues that both of Raymond’s arguments are procedurally barred for failure to develop the issues raised on appeal before the circuit court. We agree with the State and affirm the circuit court.

On April 4, 2002, Raymond was convicted in the Elkins District Court of obstruction of shooting, hunting, fishing, or trapping activities in violation § 5-71-228. He appealed the matter to the Washington County Circuit Court. On August 7, 2002, he filed a motion to dismiss the State’s charge due to the unconstitutionality of § 5-71-228. In his motion, he asserted that the statute violated both his federal and state right to free speech under the respective constitutions.

On August 21, 2002, Raymond was tried before the circuit court. Testimony presented to the court revealed that on the first day of deer season, November 10,' 2001, Markus Lee Surber was hunting on .Steve Wilson’s property. Surber testified that around daylight, Raymond came onto Wilson’s property within twenty yards of the deer stand in which Surber was positioned. Raymond was riding a four-wheeler and blowing a whistle. Surber testified that Raymond did this every thirty minutes. On the second or third day of the season, Surber also testified that he heard loud music coming across the property from the same direction Raymond had traveled earlier that week. Later the same day, Surber heard and saw Raymond fire three shots from a gun on Wilson’s property. Surber testified that this was the first time in ten years that his group had not killed a deer on the first day of deer season on Wilson’s property.

Alan Scott Wilson, Jr., also testified for the State. He stated that on the first day of deer season, while positioned in the northeast corner of Steve Wilson’s property, he heard nine shots fired from the direction of Raymond’s pasture which was located behind him. Forty-five minutes later, Wilson heard a four-wheeler approach and saw a person on the four-wheeler blowing a whistle. Later, while walking, Wilson encountered Raymond and realized that the person he had seen earlier was Raymond. Even later that day, Wilson testified that he heard Raymond fire “a couple of shots” at Surber and him, while Raymond was on his four-wheeler. Wilson also testified that he did not kill a deer on that first day of the season.

Steve Wilson testified for the State. He stated that he had lived on his property in West Fork for twenty years. He testified that on November 11, 2001, he heard Raymond again riding his four-wheeler on Raymond’s own property and firing a pistol. Steve Hall confirmed that while walking towards his father-in-law’s house, he saw Raymond, on Raymond’s own property, riding his four-wheeler and blowing a whistle.

Sergeant Scott Young of the Washington County Sheriffs Office testified that he spoke with Raymond on November 12, 2001, and advised him of the law prohibiting persons from harassing hunters. Sergeant Young stated that Raymond admitted blowing a whistle and that he “admitted to riding his four wheeler around in order to scare game away so they wouldn’t be out there hunting.” Sergeant Young added that Raymond did not believe his actions were illegal and planned on continuing his actions every day of deer season in order to protect his livestock, which was in danger of being harmed by the hunters.

Raymond took the stand in his own defense. He described his property as surrounding Steve Wilson’s land on three sides. He stated that on November 10, 2001, he was patrolling his land on a four-wheeler to keep people from trespassing on his land. He stated that he used a four-wheeler to do that because he has a metal knee. He further testified that he never crossed onto Steve Wilson’s property. He admitted to blowing a whistle and firing shots from a .22 calibre pistol to protect his livestock as well as the children, his mother, his wife, and himself, living on his property. He added that he wanted to let hunters know that he was there, so he would not be shot.

At the close of all the evidence and following closing arguments, the circuit court found that § 5-71-228 was constitutional. The court further found that Raymond was guilty of violating the provisions of the statute.

I. Sufficiency of the Evidence

Raymond argues that the circuit court incorrectly determined that he violated § 5-71-228 because there was insufficient evidence to establish his guilt. Due to double jeopardy considerations, we consider the insufficiency issue first. See Grillot v. State, 353 Ark. 294, 107 S.W.3d 136 (2003). He contends that (1) he never left his own property, and (2) his activities that day were-not intended to “obstruct or impede” the hunters. Thus, he claims, the State failed to establish the element of wilfulness. We hold that the issue is not preserved for our review. ■

Arkansas Rule of Criminal Procedure 33.1 provides, in pertinent part:

(b) In a nonjury trial, if a motion for dismissal is to be made, it shall be made at the close of all the evidence. The motion for dismissal shall state the specific grounds therefor. If the defendant moved for dismissal at the conclusion of the prosecution’s evidence, then the motion must be renewed at the close of all the evidence.
(c) The failure of a defendant to challenge the sufficiency of the evidence at the times and in the manner required in subsections (a) and (b) above will constitute a waiver of any question pertaining to the sufficiency of the evidence to support the verdict or judgment. A motion for directed verdict or for dismissal based on insufficiency of the evidence must specify the respect in which the evidence is deficient. A motion merely stating that the evidence is insufficient does not preserve for appeal issues relating to a specific deficiency such as insufficient proof on the elements of the offense. A renewal at the close of all the evidence of a previous motion for directed verdict or for dismissal preserves the issue of insufficient evidence for appeal. If for any reason a motion or a renewed motion at the close of all of the evidence for directed verdict or for dismissal is not ruled upon, it is deemed denied for purposes of obtaining appellate review on the question of the sufficiency of the evidence.

Ark. R. Crim. P. 33.1 (2003).

This court recently interpreted Rule 33.1 in the context of a bench trial in State v. Holmes, 347 Ark. 689, 66 S.W.3d 640 (2002).

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Bluebook (online)
118 S.W.3d 567, 354 Ark. 157, 2003 Ark. LEXIS 484, 2003 WL 22208755, Counsel Stack Legal Research, https://law.counselstack.com/opinion/raymond-v-state-ark-2003.