Fletcher v. State

Kenneth FLETCHER v. STATE of Arkansas

CA CR 95-475                                       ___ S.W.2d ___

                  Court of Appeals of Arkansas
                           Division I
                Opinion delivered April 24, 1996


1.   Constitutional law -- double jeopardy -- convictions in one
     county not for same offense committed in another county --
     double jeopardy argument rejected. -- Where appellant's
     convictions in one county were not for the same offense
     committed in another county, and where the offenses in the
     former county were not based on the same conduct for which he
     was convicted in the latter county, the appellate court
     rejected appellant's double jeopardy argument.

2.   Criminal law -- incest is single crime rather than continuing
     offense -- appellant could be prosecuted for each admitted
     offense. -- A reading of the statutory definition of incest at
     Ark. Code Ann.  5-26-202 (Repl. 1993) indicates that one
     commits the crime of incest each time he engages in sexual
     intercourse with an adopted daughter; unless a statute defines
     criminal activity as a "continuing course of conduct," a
     person may be prosecuted more than once if the crime has been
     repeated over a period of time; the incest statute has no
     provision suggesting that one may be prosecuted only once
     because the crime involves a "continuing course of conduct";
     similarly, the supreme court has held that rape is not a
     continuing offense but rather a single crime, and the
     appellate court applied the rule by analogy to incest;
     therefore, appellant could be prosecuted for each offense that
     he admitted having committed in one county, given that these
     were not the same offenses and did not relate to the conduct
     for which he was convicted in the other county.

3.   Courts -- jurisdiction -- circuit court properly exercised
     jurisdiction over charges for separate offenses committed in
     county. -- Because incest is not a continuing crime for which
     only one charge can be brought, the Pulaski County Circuit
     Court, before which appellant had pleaded guilty to a charge
     of having committed incest "in Pulaski County," had no
     jurisdiction over the four counts of incest with which
     appellant had been charged in Lonoke County; these charges
     were for separate offenses committed in Lonoke County, and the
     Lonoke County Circuit Court properly exercised its
     jurisdiction.

4.   Judgment -- collateral estoppel and res judicata apply to
     criminal proceedings -- issues and claims brought in one
     county were independent of those decided in other county. --
     Although collateral estoppel and res judicata apply to
     criminal proceedings, the issues and claims brought in one
     county, which pertained to four separate offenses that
     occurred in that county, were entirely independent of the
     issues and claims decided in the other county's proceedings,
     which involved acts of incest committed in that county;
     therefore, appellant's argument based on collateral estoppel
     and res judicata failed.


     Appeal from Lonoke Circuit Court; Lance L. Hanshaw, Judge;
affirmed.
     Lea Ellen Fowler O'Kelley, for appellant.
     Winston Bryant, Att'y Gen., by:  Clint Miller, Deputy Att'y
Gen. and Senior App. Advocate, for appellee.

     John B. Robbins, Judge.*ADVREP*CA4*DIVISION I









KENNETH FLETCHER
                     APPELLANT

V.


STATE OF ARKANSAS
                      APPELLEE



CACR 95-475

                                                   APRIL 24, 1996


APPEAL FROM THE LONOKE COUNTY
CIRCUIT COURT, [CR-92-79]

HONORABLE LANCE L. HANSHAW,
CIRCUIT JUDGE


AFFIRMED





                     John B. Robbins, Judge.

     On January 8, 1992, a felony information was filed against
appellant Kenneth Fletcher in Pulaski County Circuit Court,
charging him with incest and rape.  The information alleged
that, over a period from May 12, 1985, until December 31, 1989,
Mr. Fletcher engaged in sexual intercourse or deviate sexual
activity with his adopted daughter.  Pursuant to a plea
arrangement, Mr. Fletcher pleaded guilty to incest and was
sentenced on March 13, 1992, to ten years in the Arkansas
Department of Correction.
     On April 13, 1992, Mr. Fletcher was charged with four counts
of incest in Lonoke Circuit Court.  The information alleged that he
engaged in sexual intercourse or deviate sexual activity with his
adopted daughter on May 12, May 26, June 27 and November 19 of
1989.  Mr. Fletcher moved to dismiss the charges, arguing that the
Lonoke County charges were barred by former jeopardy because of
his guilty plea and sentence in Pulaski County for conduct that
occurred during the same time period.  The Lonoke County Circuit
Court denied Mr. Fletcher's motion to dismiss, and after a bench
trial, he was found guilty of incest and sentenced to ten years
imprisonment on each of the four counts.  These sentences were
to run concurrent, but consecutive to the ten-year sentence he
received in the Pulaski County conviction.
     Mr. Fletcher now appeals his convictions from Lonoke County. 
For reversal, he argues that the trial court erred in denying his
motion to dismiss.  Specifically, Mr. Fletcher contends that the
Lonoke County charges were barred by double jeopardy, as well as
the doctrines of collateral estoppel and res judicata.  We find no
error and affirm.
     Prior to his conviction in Lonoke County Circuit Court,
Mr. Fletcher agreed to certain stipulations.  It was stipulated
that he and the victim's mother were married in June 1975, and
that the three lived together as a family until December 1989. 
Mr. Fletcher adopted his wife's daughter and began making sexual
advances toward her when she was nine years of age.  When the
victim was approximately fifteen years of age, Mr. Fletcher began
having sexual intercourse with her on a repeated basis.  This
sexual activity occurred in Pulaski County for about two years
before Mr. Fletcher moved his family to Lonoke County in November
1988.  While in Lonoke County, Mr. Fletcher had further sexual
relations with the victim, and several of these incidents were
recorded on video tapes.  The victim lived with Mr. Fletcher in
Lonoke County until December 1989, and Mr. Fletcher admitted to
having sexual intercourse with the victim on May 12, May 26, June
27, and November 19 of that year.
     For his double jeopardy argument, Mr. Fletcher cites the Fifth
Amendment of the United States Constitution and Article 2, section
8, of the Arkansas Constitution, both of which guarantee that no
person shall be twice put in jeopardy of life or liberty for the
same offense.  He contends that the incest against his adopted
daughter was a single continuing offense, which was committed over
a period of years in both Pulaski and Lonoke Counties, and that his
guilty plea in Pulaski County encompassed all of his incestuous
activity.  Arkansas Code Annotated section 16-88-108(c) (Repl.
1993) provides:
       (c)  Where the offense is committed partly in one
     county and partly in another, or the acts, or effects
     thereof, requisite to the consummation of the offense
     occur in two (2) or more counties, the jurisdiction is in
     either county.
Mr. Fletcher argues that, because his crime was a continuing one
and occurred in both counties, Pulaski County rightfully assumed
jurisdiction pursuant to the above statute.  He submits that double
jeopardy considerations barred any further prosecution.
     In addressing Mr. Fletcher's double jeopardy argument,
this court is aware of the fact that, pursuant to Ark. Code Ann.
 5-1-112(2) (Repl. 1993), a former prosecution resulting in a
conviction is an affirmative defense to a subsequent prosecution
for the same offense.  We are also mindful of Ark. Code Ann.  5-1-
113(1)(B) (Repl. 1993), which provides that, after a conviction,
a subsequent prosecution for a different offense is barred if
the alleged offense was based on the same conduct giving rise
to the conviction.  However, in the instant case Mr. Fletcher's
convictions in Lonoke County were not for the same offense
committed in Pulaski County.  Nor were the Lonoke offenses based on
the same conduct for which he was convicted in Pulaski County. 
Therefore, we reject Mr. Fletcher's double jeopardy argument.
     Incest is defined by Ark. Code Ann.  5-26-202 (Repl. 1993),
which provides that "A person commits incest if, being sixteen (16)
years of age or older, he purports to marry, has sexual intercourse
with, or engages in deviate sexual activity with a person he
knows to be...[a] stepchild or adopted child...."  Contrary to
Mr. Fletcher's contention that incest is an ongoing crime for which
he can only be prosecuted once, a reading of the above statute
indicates that one commits the crime of incest each time he engages
in sexual intercourse with an adopted daughter.  In Smith v. State,
296 Ark. 45, 757 S.W.2d 554 (1988), the supreme court held that,
unless a statute defines criminal activity as a "continuing course
of conduct," a person may be prosecuted under the statute more than
once if the crime has been repeated over a period of time.  The
incest statute at issue has no provision suggesting that a person
who violates the statute may be prosecuted only once because the
crime involves a "continuing course of conduct."  Similarly, the
supreme court held that rape is not a continuing offense but rather
a single crime, see Tarry v. State, 289 Ark. 193, 710 S.W.2d 202
(1986), and we find by analogy that this rule applies to incest. 
Therefore, Mr. Fletcher could be prosecuted for each offense that
he admitted to committing in Lonoke County, given that these were
not the same offenses and did not relate to the conduct for which
he was convicted in Pulaski County.
     Mr. Fletcher makes much of the fact that, in Pulaski County,
he was charged with committing incest through December 1989, at
which time the victim resided with him in Lonoke County.  He
asserts that, as such, he was under the assumption that his guilty
plea in Pulaski County must have covered any and all incestuous
activity.  We disagree because the Pulaski County information
charged Mr. Fletcher with committing incest "in Pulaski County,"
and he pleaded guilty to this charge.  Indeed, Mr. Fletcher
stipulated before the Lonoke County Circuit Court that he had
engaged in sexual intercourse with the victim in Pulaski County
before moving to Lonoke County.  In addition, he acknowledged that
he had sex with her in Lonoke County on four specific occasions. 
Because incest is not a continuing crime for which only one charge
can be brought, Pulaski County Circuit Court had no jurisdiction
over these four counts.  Rather, these charges were for separate
offenses committed in Lonoke County, and Lonoke County Circuit
Court properly exercised its jurisdiction.
     Mr. Fletcher's remaining argument is that the trial court
erred in refusing to grant his motion to dismiss because the second
prosecution was barred by collateral estoppel and res judicata.  We
agree with Mr. Fletcher's assertion that collateral estoppel and
res judicata apply to criminal proceedings.  See Fariss v. State,
303 Ark. 541, 798 S.W.2d 103 (1990).  However, in the instant case
the issues and claims brought in Lonoke County were entirely
independent of the issues and claims decided in the Pulaski County
proceedings.  The Pulaski County case involved acts of incest
committed in that county; the Lonoke County case pertained to four
specific offenses which occurred in Lonoke County.  For this
reason, Mr. Fletcher's final argument fails.
     Affirmed.
     Cooper and Stroud, JJ., agree.