Fayetteville man’s gun conviction reversed on appeal

Pocketed pistol not necessarily a weapon, appeals court rules

by Ron Wood - Northwest Arkansas Democrat gazette - 3/5/2020

FAYETTEVILLE -- Someone with a loaded pistol in his pocket doesn't necessarily mean to use it as a weapon in the legal sense, a split Arkansas Court of Appeals said Wednesday.

The Appeals Court ruling reversed a Fayetteville man's misdemeanor conviction.

The court also took the opportunity in its decision to ease the rules by which people can appeal their district court convictions to circuit court.

Jesse Pettry was convicted of "carrying a weapon" in October 2017 after police found a loaded handgun in his right front pocket when he was arrested one night on Dickson Street in Fayetteville. Police said Pettry was arrested after he acted out at a bar and tore a door off its hinges on his way out when he was told to leave.

Pettry was convicted in district court and appealed to circuit court where he was again convicted by Circuit Judge Mark Lindsay.

The court of appeals judges reversed and dismissed the case, saying the state failed to prove Pettry intended to unlawfully use the hand gun as a weapon against another person. Merely possessing a gun is not a crime in Arkansas, they noted.

"The evidence shows that before law enforcement engaged him, Pettry did not brandish his gun to anyone. Pettry did not announce to anyone that he possessed a gun, much less that he intended to use it in some unlawful manner," according to the court's majority opinion.

"True, he acted violently toward a business' property, but he never verbally or physically threatened any person (as far as the record reveals) with the firearm that he possessed."

The court also said the charge only made sense if the state was arguing Pettry intended to use the gun against the police officers. There was also no evidence of that because the officers didn't need to use force against Pettry to protect themselves or bystanders, the court ruled.

The court noted an intoxicated Pettry complied with police demands in a nonthreatening manner, entered the patrol car without incident and eventually passed out inside the patrol car without further incident.

The state failed to prove the purpose element and failed to prove Pettry was about to "employ" the gun in his pocket in an unlawful manner, according to the ruling.

The Appeals Court had earlier dismissed Pettry's appeal saying there was no jurisdiction to hear the case because Pettry had not filed a written request to prepare the case record with the district court clerk; failed to serve the written request to prosecutors; and did not file a certificate of service with the district court clerk.

The judges said those requirements constituted too many hoops to jump through on appeal, potentially denying access to justice. Filing a certified record of the proceedings in district court with the circuit clerk is sufficient to initiate an appeal, they ruled.

In a dissenting opinion, Judge Meredith Switzer said the court over-stepped its bounds. She contends the steps required by state law to appeal are all required to establish jurisdiction.

"These mandatory "requirements" however, have now been reduced to "events" "steps" and "instructions"--in other words, suggestions," Switzer wrote. "Our case law does not support such a result."


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