Boose v. State

Cite as 2017 Ark. App. 302

ARKANSAS COURT OF APPEALS

DIVISION II
No.CR-16-722

Opinion Delivered: May 10, 2017

CODY ALAN BOOSE APPEAL FROM THE FAULKNER
APPELLANT COUNTY CIRCUIT COURT
[NO. 23CR-15-251]
V.
HONORABLE CHARLES E.
CLAWSON, JR., JUDGE
STATE OF ARKANSAS
APPELLEE AFFIRMED

KENNETH S. HIXSON, Judge

Appellant Cody Alan Boose appeals after he was convicted by a Faulkner County

jury of battery in the first degree (law enforcement officer) and of a firearm enhancement.

He was sentenced to serve a total of 540 months in the Arkansas Department of Correction.

On appeal, appellant contends that (1) the jury instructions violated his due-process rights

and (2) the trial court erred in not granting his Batson challenge. We affirm.

Because appellant does not challenge the sufficiency of the evidence against him,

only a brief recitation of the facts is necessary. Arnold v. State, 2012 Ark. 400. Appellant

was charged by felony information with first-degree battery (law enforcement officer) and

with a firearm enhancement. 1 The evidence presented at trial indicated that the Faulkner

County Sheriff’s Office executed a “no knock” warrant at appellant’s home in Conway,

1
Appellant was also charged with possession of a firearm by certain persons.
However, the State subsequently nolle prossed this charge.
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Arkansas. After the home was breached during the execution of the warrant and after an

announcement was made that it was the Sheriff’s department, appellant shot Deputy Eugene

Watlington in the side. The jury convicted appellant of first-degree battery, specifically

finding beyond a reasonable doubt that the victim was a law enforcement officer acting in

the line of duty and that appellant employed a firearm as a means of committing battery in

the first degree. The jury recommended a sentence of 30 years’ imprisonment for battery

in the first degree and 15 years’ imprisonment for employing a firearm, for which the trial

court imposed a total of 45 years’ imprisonment. This appeal followed.

I. Jury Instructions

A circuit court’s decision whether to give an instruction will not be reversed unless

the court abused its discretion. Vidos v. State, 367 Ark. 296, 239 S.W.3d 467 (2006). A

party is entitled to a jury instruction when it is a correct statement of the law and when

there is some basis in the evidence to support giving the instruction. Id. Nonmodel jury

instructions should be given only when the trial court finds that the model instructions do

not accurately state the law or do not contain a necessary instruction. Bond v. State, 374

Ark. 332, 288 S.W.3d 206 (2008). Finally, a trial court’s refusal to give an instruction is not

reversible error unless its omission infects the entire trial such that the conviction violates

due process. Hickman v. State, 372 Ark. 438, 277 S.W.3d 217 (2008); Branstetter v. State,

346 Ark. 62, 57 S.W.3d 105 (2001).

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Here, appellant was found guilty of committing first-degree battery against a law

enforcement officer in violation of Arkansas Code Annotated section 5-13-201 (Repl.

2013). 2 Section 5-13-201 states,

(a) A person commits battery in the first degree if:

....

(8) With the purpose of causing physical injury to another person, the person causes physical
injury to any person by means of a firearm;

....

(c)(1) Except as provided in subdivisions (c)(2) and (3) of this section, battery in the first degree
is a Class B felony.

(2) Battery in the first degree is a Class Y felony under the circumstances described
in subdivision (a)(9) of this section.

(3) Battery in the first degree is a Class Y felony if the injured person is a law enforcement
officer acting in the line of duty.

Ark. Code Ann. § 5-13-201 (emphasis added). For a Class B felony, the maximum sentence

is 20 years’ imprisonment. Ark. Code Ann. § 5-4-401(a)(3). However, for a Class Y felony,

the sentence is 10 to 40 years or life imprisonment. Ark. Code Ann. § 5-4-401(a)(1).

In this case, the jury was read the following relevant jury instructions: 3

Cody Boose is charged with the offense of Battery in the First Degree. To
sustain this charge the State must prove beyond a reasonable doubt that Cody Boose with the
2
Appellant does not contest his enhancement for employing a firearm.
3
On October 19, 2016, this court remanded this case to the trial court to settle the
record because hard copies of the jury instructions were not in the record. The trial court
responded by affidavit, and the affidavit was supplemented in the record on appeal. In the
affidavit, the trial court explained that the hard copies of the jury instructions were deposited
in a recycling receptacle after trial. However, the trial court further explained that the
instructions were read verbatim to the jury, and the transcript from those proceedings is
contained in our record on appeal.
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purpose of causing physical injury to another person caused physical injury to Eugene
Watlington by means of a firearm.

....

The State has alleged that Cody Boose employed a firearm as a means of
committing Battery in the First Degree. To sustain this allegation the State must
prove beyond a reasonable doubt that Cody Boose employed a firearm as a means of
committing Battery in the First Degree.

If you find Cody Boose guilty of the offense of Battery in the First Degree,
you will so indicate on the verdict form to be provided to you.

You will also make a finding about whether Cody Boose employed a firearm
as a means of committing the offense.

....

Cody Boose asserts as a defense to the charge of Battery in the First Degree
that physical force was necessary to defend himself.

....

In your deliberations the subject of punishment is not to be discussed or
considered by you. If you return a verdict of guilty, the matter of punishment will
be submitted to you separately.

If you find Cody Boose guilty of Battery in the First Degree you will so indicate on
the verdict form provided you. You will also make a finding about the circumstances of the
offense as directed on the form.

....

And the verdict form is as follows: We, the jury, find Cody Boose guilty of
Battery in the First Degree, with a signature line for the foreperson.

Or, We, the jury, find Cody Boose not guilty of Battery in the First Degree,
with a signature line for the foreperson.

Beneath that: If your verdict is guilty you shall complete the following: Do you, the
jury, find beyond a reasonable doubt that the victim was a law enforcement officer acting within
the line of duty, a place to check yes or no and a signature line for the foreperson.

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And an additional form: If you find Cody Boose guilty of Battery in the First
Degree, you shall complete the following: Do you find—do you, the jury, find
beyond a reasonable doubt that Cody Boose employed a firearm as a means of
committing Battery in the First Degree, again designate yes or no, signature line for
the foreperson.

(Emphasis added.)

Prior to the trial court’s reading of the above jury instructions, appellant objected in

part to the model instructions and proffered the following instruction for the purpose of

interjecting a question of mental culpability into the offense of committing a battery on a

law enforcement officer:

Cody Boose is charged with the offense of Battery in the First Degree. To
sustain this charge, the State must prove beyond a reasonable doubt that:

Cody Boose, with the purpose of causing physical injury to another person,
caused physical injury to a person he knew or had reason to know was a law enforcement
officer by means of a firearm.

(Emphasis added.)

The transcript from the trial reveals that appellant made the following specific

objections to the jury instructions:

[APPELLANT]: The State, I submit, has to prove that if he was convicted of
battery in the first degree that he knew he was shooting at a law
enforcement officer. As a matter of due process they have to
prove he knew. It’s not strict liability. It cannot be strict
liability.

For a 15 year enhancer it violates due process to just say
-- or for a Class Y felony to say it’s a law enforcement officer
without an element of proof of knowledge. So it should say
that he knew or reasonably should have known it was a law
enforcement officer. . . . I’ll give you authority. It’s LaFave &
Scotts -- I’ve got it -- I’ll put it in the record if you need me
to. I’ve got it printed out. Substantive Criminal Law, Section
5.5, and I believe it’s Subsection C, that to make something

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essentially strict liability when it’s a serious crime -- and
essentially it says a serious crime is anything a felony or above.

And used by analogy, if you want, the Arkansas Supreme
Court’s statement that sex with a person under 14 is strict
liability. That’s a due process issue. It’s never been raised in
Arkansas. And there’s plenty of caselaw -- and the footnote that
cites it goes on for about four pages -- that it is a due process
issue to convict somebody of a serious crime without some
proof of knowledge. It eliminates criminal intent.

THE COURT: What you’re saying is it says: “Do you, the jury, find beyond a
reasonable doubt the victim was a law enforcement officer
acting in the line of duty,” does not go all the way. It needs to
say, “and that the defendant knew that at the time.”

[APPELLANT]: I would say for the State’s benefit knew or reasonably should
have known at the time. That avoids a due process issue.
....

THE COURT: Well, gentlemen, I have some sympathy with your argument,
[appellant], but I’m going to give the instruction as provided in
the standard instructions, AMCI[.]

Thus, the trial court refused to give appellant’s nonmodel jury instruction.

On appeal, appellant argues two due-process challenges to the jury instructions read

to the jury regarding the count for battery in the first degree. He first argues that the jury

instructions as they were read violated his right to due process under Apprendi v. New Jersey,

530 U.S. 466 (2000). Second, he argues that the jury instructions incorrectly made the

offense a matter of strict liability. We disagree.

A. Apprendi

Appellant first explains that Apprendi requires that any fact that raises the punishment

for the crime must be proved to the jury beyond a reasonable doubt. Appellant alleges that

the jury was read a model jury instruction that stated, “Cody Boose is charged with the

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offense of Battery in the First Degree. To sustain this charge, the State must prove beyond

a reasonable doubt that Cody Boose, with the purpose of causing physical injury to another

person, caused physical injury to Eugene Watlington by means of a firearm.” He argues

that the model jury instruction read does not, however, “say a word about proving that the

victim was a law enforcement officer.” Therefore, appellant claims that the jury was never

specifically instructed that the State was required to prove beyond a reasonable doubt that

the victim of his battery was in fact a law enforcement officer, which would enhance his

penalty from a Class B felony to a Class Y felony. Thus, he argues that the model jury

instruction was not a correct statement of law under Apprendi and that his first-degree battery

conviction must be reversed and remanded for a new trial. We disagree.

Appellant quotes only a small portion of the jury instructions read to the jury as

support for his contention and ignores the remainder of the instructions read to the jury. In

addition to the portion of the jury instructions quoted above and found in his brief, the jury

was specifically instructed that it was required to make a finding about the circumstances of

the offense as directed on the verdict form if it found appellant guilty of battery in the first

degree. The trial court then read the verdict form verbatim to the jury, specifically

instructing the jury that it was required to indicate whether they found “beyond a reasonable

doubt that the victim was a law enforcement officer acting within the line of duty.” Thus,

after reviewing the jury instructions in their entirety, we affirm on this issue because

appellant has failed to show that the jury instruction violated the principle established in

Apprendi.

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B. Strict Liability

In appellant’s second argument on appeal regarding the jury instructions, he argues

that the failure to include in the jury instructions that defendant knew or reasonably should

have known that he was shooting at a law enforcement officer creates a strict-liability offense

for a Class Y felony without due process in violation of the Fifth and Fourteenth

Amendments. Statutes are presumed constitutional, and the burden of proving otherwise is

on the challenger of the statute. Gaines v. State, 354 Ark. 89, 118 S.W.3d 102 (2003). If it

is possible to construe a statute as constitutional, we must do so. Id. In construing a statute,

we will presume that the General Assembly, in enacting it, possessed the full knowledge of

the constitutional scope of its powers, full knowledge of prior legislation on the same subject,

and full knowledge of judicial decisions under preexisting law. Id. We also give effect to

the legislature’s intent, making use of common sense and giving words their usual and

ordinary meaning. Id.

Under Arkansas Code Annotated section 5-13-201, appellant was required to have

the requisite level of intent in committing battery in the first degree under subsection (a),

which the jury found here in convicting him. Subsection (c) designates the appropriate

felony class for committing battery in the first degree depending on the circumstances of the

victim. In this case, the jury specifically found beyond a reasonable doubt that appellant,

with the purpose of causing physical injury to another person, caused physical injury to

Deputy Watlington by means of a firearm. Further, the jury found beyond a reasonable

doubt that the victim was a law enforcement officer acting within the line of duty.

Therefore, pursuant to the jury’s findings, appellant was guilty of a Class Y felony pursuant

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to section 5-13-201(c). The plain language of the statute does not require the State to

additionally prove that an offender knew or should have known that his or her victim was

a law enforcement officer acting in the line of duty as appellant contends. Therefore, the

trial court did not abuse its discretion in refusing to give a proffered jury instruction that

was not an accurate statement of law.

While appellant argues that the trial court’s refusal to include his proffered jury

instruction was a violation of his due-process rights and cites several federal cases that

generally discuss the concept of scienter, or intent, he fails to articulate how these cases

specifically support his claim on appeal. We note that appellant introduced an exhibit at

trial containing an excerpt from a legal treatise as support for his proffered jury instruction.

However, even in that excerpt, Professor LaFave states that “the United States Supreme

Court has recognized that as a general matter it is constitutionally permissible to enact strict-

liability criminal statutes.” Wayne R. LaFave, Substantive Criminal Law § 5.5(b) (2d ed.

2003).

On the other hand, the State cites United States v. Feola, 420 U.S. 671 (1975). There,

Feola was convicted under 18 U.S.C. § 111 for assaulting federal officers in the performance

of their official duties. The federal officers in that case were undercover narcotics agents.

In finding that an assailant need not be aware that his victim is a federal officer, the United

States Supreme Court stated the following:

We conclude, from all this, that in order to effectuate the congressional
purpose of according maximum protection to federal officers by making prosecution
for assaults upon them cognizable in the federal courts, [18 U.S.C. §] 111 cannot be
construed as embodying an unexpressed requirement that an assailant be aware that
his victim is a federal officer. All the statute requires is an intent to assault, not an
intent to assault a federal officer. A contrary conclusion would give insufficient
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protection to the agent enforcing an unpopular law, and none to the agent acting
under cover.

This interpretation poses no risk of unfairness to defendants. It is no snare for
the unsuspecting. Although the perpetrator of a narcotics ‘rip-off,’ such as the one
involved here, may be surprised to find that his intended victim is a federal officer in
civilian apparel, he nonetheless knows from the very outset that his planned course
of conduct is wrongful. The situation is not one where legitimate conduct becomes
unlawful solely because of the identity of the individual or agency affected. In a case
of this kind the offender takes his victim as he finds him. The concept of criminal
intent does not extend so far as to require that the actor understand not only the
nature of his act but also its consequence for the choice of a judicial forum.

Feola, 420 U.S. at 684–85.

Appellant contends that finding him guilty of a Class Y felony pursuant to the statute

without the jury finding yet another level of intent “literally shocks the conscience.” We

disagree. Appellant’s contentions are unsupported by any citation to authority applicable to

the facts of this case that would require us to reverse his conviction, and further, we hold

that the rationale in Feola is persuasive. Thus, we affirm.

II. Batson Challenge

Appellant’s final argument on appeal is that the trial court erred in not granting his

Batson challenge to the State striking S.W., an African-American juror. Under Batson v.

Kentucky, 476 U.S. 79 (1986), a prosecutor in a criminal case may not use peremptory strikes

to exclude jurors solely on the basis of race. Blair v. State, 2014 Ark. App. 623, 447 S.W.3d

608. At trial, a three-step process is required to effectuate the dictates of Batson and its

progeny. McMiller v. State, 2014 Ark. 416, 444 S.W.3d 363. First, the opponent of the

peremptory strikes must present facts to make a prima facie case of purposeful discrimination.

Id. Second, upon a showing of a prima facie case of systematic discrimination, the State is

required to give a race-neutral explanation for the strikes. Id. Third, the trial court must
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decide whether the opponent of the strike has proved purposeful discrimination. Id. On

appeal, we will not reverse a trial court’s findings on a Batson objection unless the decision

is clearly against the preponderance of the evidence. Id. Finally, some deference is accorded

the trial court in making this decision because it has the opportunity to observe the parties

and determine their credibility. Id.

During jury selection, appellant made the following Batson challenge after the State

exercised one of its preemptory strikes:

[APPELLANT]: I’m making a Batson objection. She’s the only African-
American out of the first eighteen.

THE COURT: [State]?

[STATE]: I don’t think he has a Batson objection. He hasn’t met his prima
facie burden because we’ve also struck [B.S.] who is a white
male.

[APPELLANT]: I don’t -- I think the law in Batson is changing. I don’t think
you have to necessarily make a prima facie case. They have to
state a reason why they’re striking her, not just say, “We’re
striking her.”

[STATE]: And, regardless, just for the record, she said that’s a counselor
and her position on City Council she deals with law
enforcement officer that are doing things inappropriately and
appropriately and we -- and she also -- what was the -- yeah,
so I think those are reasonable and excuse her regardless.

[APPELLANT]: Well, I don’t think it’s -- under Batson, it’s probably good
enough, but I don’t think Batson is necessarily any more good
law. I think the law is changing towards the defense.

THE COURT: At this point, I’m going to -- I think it’s good under Batson,
their explanation, so I’m going to overrule your objection.

Appellant changes his argument on appeal. Instead of arguing that Batson is no longer

good law, without any citation of authority for this proposition, as he did at trial, he now
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argues on appeal that the State’s race-neutral explanation was insufficient because the State

did not seek to strike two other similarly situated jurors. However, Batson arguments not

made to the trial court are not preserved for our review on appeal. Owens v. State, 363 Ark.

413, 214 S.W.3d 849 (2005). Furthermore, appellant conceded at trial that the State’s

explanation for striking Juror S.W. was “probably good enough” under Batson. Thus, we

must affirm the trial court’s ruling and appellant’s conviction.

Affirmed.

ABRAMSON and MURPHY, JJ., agree.

John Wesley Hall and Sarah M. Pourhosseini, for appellant.

Leslie Rutledge, Att’y Gen., by: Amanda Jegley, Ass’t Att’y Gen., for appellee.

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