Luther Hendrickson v. State of Arkansas

ARKANSAS COURT OF APPEALS

NOT DESIGNATED FOR PUBLICATION

LARRY D. VAUGHT, JUDGE

DIVISION IV

LUTHER HENDRICKSON

APPELLANT

V.

STATE OF ARKANSAS

APPELLEE

CACR02-814

April 9, 2003

APPEAL FROM THE ARKANSAS COUNTY CIRCUIT COURT

CR-2001-241

HON. RUSSELL ROGERS, JUDGE

AFFIRMED

This is an appeal from an Arkansas County Circuit Court bench trial in which appellant Luther Hendrickson was convicted of fleeing and reckless driving. He was sentenced to fourteen days in jail and ordered to pay fines totaling $500. Appellant's sole point on appeal is that the trial court erred by not dismissing the charges against him for lack of jurisdiction and venue. We disagree and affirm.

On Sunday morning, in the latter part of October 2001,1 at approximately 2:30 a.m., James Shelton, a constable for Keaton Township in Arkansas County, noticed a vehicle at Cloud's Grocery, located within Keaton Township. The vehicle had two flat tires, and appeared to have been drivenfor a period of time on the flat tires. At the time, no one was in the vehicle. Shelton stopped another vehicle in the vicinity to inquire about the car, and learned from O. T. Hughes that he had picked up appellant and Stacey Parson, the driver and passenger of the abandoned vehicle. Hughes stated that both individuals were extremely intoxicated when he encountered them.

Shelton picked appellant up and asked for his driver's licence. Appellant told him he did not have it on him, and Shelton stated that at that time he was unable to find any driver history or driver's license information for appellant through a computer check. Shelton testified that appellant assured him that he had a driver's license, but that it might be suspended for a D.W.I. Neither appellant nor Parson were written any tickets or taken into custody at that time.

Approximately one month later, on November 26, 2001, Shelton testified that he saw appellant exit Cloud's Grocery and decided to stop him and verify that he had obtained a permit to drive to and from work. Shelton testified that he had to proceed up the road and turn around in order to pursue appellant; and upon noticing Shelton, appellant sped off in his vehicle. Shelton estimated that it took approximately three miles for him to catch up to appellant. He stated that he did not turn on his blue lights until he drove up close enough to appellant that he would not speed away, but appellant did not stop until he reached his residence.

Appellant's residence is located in Aberdeen, Monroe County. It is approximately ten miles from Cloud's Grocery, and between four and five miles across the county line into Monroe County. Keaton Township does not extend past the Arkansas County/Monroe County line. It is undisputed that the traffic stop occurred in Monroe County, Arkansas, approximately five miles outside of Shelton's jurisdiction as an Arkansas County Constable, and between four and five miles outside the venue of the Arkansas County Circuit Court.

Shelton testified that, at one point, he pulled up beside appellant's vehicle, but that appellant never acknowledged that Shelton was either beside or behind him. Whether that encounter occurred while the two were in Monroe County rather than Arkansas County is in dispute. After that incident, it appears that the pursuit continued for four additional miles until appellant finally stopped his vehicle. The section of the road traveled is a rural, two-lane road with a fifty-five mile per hour speed limit. There was no testimony that appellant ever passed anyone during the pursuit, either on the right or left side of the road. Shelton did not have radar, but estimated that appellant was traveling at approximately seventy-five to eighty miles per hour. Upon stopping, appellant was administered a horizontal gaze nystagmus test and received a BAC test at the station, both of which he passed. Appellant was then charged with fleeing, reckless driving, and fleeing on foot. The charge of fleeing on foot was subsequently nolle-prossed.

Prior to the circuit court trial, appellant filed a motion to dismiss alleging lack of jurisdiction and venue because the alleged activities occurred in Monroe County rather than in Arkansas County. The trial judge reviewed appellant's motion to dismiss subsequent to the presentation of evidence at trial, and the motion was denied. Appellant was convicted of fleeing and reckless driving. From that conviction comes this appeal.

Arkansas Code Annotated section 5-1-111 (Repl. 1997), which is titled "Burden of Proof-Defense and Affirmative Defenses-Presumption," states:

(a) Except as provided in subsection (b), (c) and (d) of this section, no person may be convicted of an offense unless the following are proved beyond a reasonable doubt:

(1) each element of the offense;

(2) jurisdiction;

(3) venue; and

(4) the commission of the offense within the time period specified in §5-1-109.

(b) The State is not required to prove jurisdiction or venue unless evidence is admitted that affirmatively shows the Court lacks jurisdiction or venue.

In the instant case, appellant asserts that neither the Arkansas County District Court nor the Arkansas County Circuit Court had jurisdiction in Monroe County, where the traffic stop occurred. Further, he contends that venue did not lie in Arkansas County where the matter was tried, but rather in Monroe County. Appellant acknowledges that the State need not prove jurisdiction unless evidence is admitted that affirmatively shows that the court lacks jurisdiction, citing Ark. Code Ann. § 5-1-111 and Gardner v. State, 263 Ark. 739, 569 S.W.2d 74 (1978), cert. denied, 440 U.S. 911 (1979) (where the defendant put the court on notice that he would be expecting the State to prove beyond a reasonable doubt each element, including jurisdiction and venue).

Appellant admits that he neither testified on his own behalf nor called any witnesses. He contends, however, that Shelton's testimony on cross-examination clearly indicated that the offenses of fleeing and reckless driving occurred in Monroe County.

"Fleeing" is defined at Ark. Code Ann. § 5-54-125 (Repl. 1997) as:

(a) if a person knows that his immediate arrest or detention is being attempted by a duly authorized law enforcement officer, it is the lawful duty of such person to refrain from fleeing, either on foot or by means of any vehicle or conveyance.

Appellant argues that in order to have jurisdiction or proper venue in Arkansas County, the State had the burden of proving beyond a reasonable doubt that appellant knew "that his immediate arrest or detention is being attempted by a duly authorized law enforcement officer," while in Arkansas County. He argues that based on the testimony of the State's only witness, Constable Shelton, this was not proven beyond a reasonable doubt.

Whether jurisdiction and venue are appropriate in a particular county is a matter of law. See Two Bros. Farm, Inc. v. Riceland Foods, Inc., 57 Ark. App. 25, 940 S.W.2d 889 (1997). Arkansas Code Annotated section 16-88-108(c) (1987) provides, "when an 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) counties, the jurisdiction is in either county." Additionally, when the act of fleeing begins in one county and ends in another, venue and jurisdiction are proper in either county. See Barr v. State, 336 Ark. 220, 984 S.W.2d 792 (1999); Shaw v. State, 299 Ark. 474, 773 S.W.2d 827 (1989).

Shelton testified that he began pursuing appellant while well within the borders of his jurisdiction, Keaton Township in Arkansas County. He stated that he caught up with appellant and turned on his lights and siren roughly one-half mile from the edge of Keaton Township, and that appellant failed to acknowledge him. Instead, appellant crossed the county line and continued driving another four to five miles at a high rate of speed with Shelton pursuing him closely until he stopped the vehicle at his residence located in Monroe County.

Appellant did not contest the fact that Shelton had the authority to pursue him into Monroe County; rather he disputes that jurisdiction and venue were proper in the Arkansas County Circuit Court because the traffic stop and arrest actually occurred in Monroe County. However, based upon the relevant statute and case law, jurisdiction and venue were proper in either county; and his argument that the State had to prove that appellant knew "that his immediate arrest or detention is being attempted by a duly authorized law enforcement officer" while in Arkansas County is misplaced.

Affirmed.

Pittman and Robbins, JJ., agree.

1 We do not know the exact date of the initial contact, but Constable Shelton testified that it was approximately one month prior to the date he issued the citations which was November 26, 2001.