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                SUPREME COURT OF ARKANSAS
                                       No.   CR-12-475

                                                  Opinion Delivered   October 3, 2013

STEVEN J. RUSSELL                                 APPEAL FROM THE PULASKI
                               APPELLANT          COUNTY CIRCUIT COURT, FIFTH
                                                  DIVISION
                                                  [NO. CR2009-4519]
V.
                                                  HONORABLE WENDELL L.
                                                  GRIFFEN, JUDGE
STATE OF ARKANSAS
                                 APPELLEE         AFFIRMED.


                       JOSEPHINE LINKER HART, Associate Justice

       Appellant, Steven J. Russell, was found guilty of capital murder and sentenced to life

imprisonment without parole with an additional fifteen years’ imprisonment on a firearm

sentencing enhancement. This appeal is properly before this court as a criminal appeal in

which life imprisonment has been imposed. Ark. Sup. Ct. R. 1-2(a)(2) (2013). On appeal,

Russell first contends that at the time of the charged conduct, he lacked capacity as a result

of mental disease or defect to conform his conduct to the requirements of the law or to

appreciate the criminality of his conduct, and thus, the circuit court should have granted

Russell’s motion for acquittal. In a second point, Russell asserts that the circuit court erred

in denying his mistrial motion after the jury announced that it was deadlocked. We affirm.

       The State charged Russell with capital murder, alleging that, while acting with a

premeditated and deliberated purpose, he caused the death of Joy Owens. The circuit court

ordered a mental-health evaluation by the Division of Mental Health Services of the
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Department of Human Services. Russell later moved for acquittal by reason of mental disease

or defect. In his motion, he stated that Dr. Ron Faupel, a psychologist for the Arkansas State

Hospital, issued a report in which he opined that at the time of the charged conduct Russell

lacked the capacity to conform his conduct to the requirements of the law. Russell asserted

that the finding was “consistent with a long history of mental illness which was being treated

by the North Little Rock Veterans Administration Hospital,” that “[s]ome of the impairment

appears to have arisen out of combat duty in Iraq and the adjustments to coming home,” and

that he had been diagnosed with Post Traumatic Stress Disorder (PTSD). Russell further

noted in his motion that after the State had received Dr. Faupel’s report, it asked for and

received an evaluation by Dr. Bradley Diner, a psychiatrist, who disagreed with Dr. Faupel.

Russell had then obtained another evaluation by Dr. James Moneypenny, a psychologist, who

concurred in Dr. Faupel’s findings.

       The circuit court held a hearing on Russell’s motion. At the hearing, Dr. Moneypenny

testified that Russell’s history was consistent with a diagnosis of PTSD. Dr. Moneypenny also

noted that Russell suffered from depression with psychotic features and concluded that Russell

likely was experiencing psychosis at the time of the shooting. He opined that, at the time of

the charged conduct, Russell could not conform his conduct to the requirements of the law

or appreciate the criminality of his conduct. In a written report attached to Russell’s motion,

Dr. Moneypenny opined that Russell was suffering from a mental disease or defect at the time

of the shooting and could not appreciate the criminality of his conduct or conform his

behavior to the requirements of the law, noting that Russell’s history and prior evaluations


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reflected the presence of psychosis and acute emotional distress.

       Dr. Faupel testified that he agreed with Dr. Moneypenny’s testimony. He further

testified that Russell’s actions were consistent with a diagnosis of PTSD. In a written report

attached to Russell’s motion, Dr. Faupel opined that at the time of the charged conduct,

Russell was suffering from a mental disease or defect. He further opined that Russell lacked

the capacity for the culpable mental state, noting that there was a high probability that Russell

was responding to auditory hallucinations and had an impaired perception of reality due to

flashbacks of traumatic events in his life. Dr. Faupel also stated that Russell lacked the capacity

to appreciate the criminality of his conduct or to conform his conduct to the requirements of

the law, as he was suffering from an impaired perception of reality.

       Dr. Diner, however, testified that he did not agree that Russell was unable to conform

his conduct to the requirements of the law or to appreciate the criminality of his conduct.

While acknowledging that Russell met the criteria for PTSD, he concluded that Russell’s

conduct at the time of the shooting did not equate with Russell suffering from a dissociative

reaction when he shot Owens. He stated that Russell had engaged in purposeful activities

both before and after the shooting. He noted that Russell argued with Owens before the

shooting, that there was a delay in time between the first three shots fired and the fourth shot

fired, and that after the shooting he contemplated suicide and drove to Burns Park.

       After hearing the testimony, the circuit court found that the testimony was in conflict.

The court noted that both Dr. Moneypenney and Dr. Faupel opined that Russell lacked the

capacity as a result of mental disease or defect to conform his conduct to the requirements of


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the law, while Dr. Diner opined that Russell did suffer from PTSD but did not believe that

he had a dissociative reaction at the time of the shooting. The court concluded that because

the testimony was decidedly in conflict, the matter must be tried to a jury. Russell appeals this

decision.

       On appeal, Russell asserts that the circuit court failed in its role as “gatekeeper” and

should have rendered before trial a finding of not guilty by reason of mental disease or defect,

as he lacked the capacity to appreciate the criminality of his conduct or to conform his actions

to the law. Russell asserts in his brief that the evidence established that he suffered from

PTSD, depression, and alcoholism. He asserts that the forensic examinations supported his

claim that he suffered from mental disease or defect. He also argues that the first, singular

examination, which was conducted by Dr. Faupel, was unequivocal and supported his claim

and that the State should not have had a “second bite of the apple.”

       On the question of the affirmative defense of lack of capacity, our criminal statutes

provide as follows:

       (a)(1) It is an affirmative defense to a prosecution that at the time the defendant
       engaged in the conduct charged he or she lacked capacity as a result of mental disease
       or defect to:
          (A) Conform his or her conduct to the requirements of law; or
          (B) Appreciate the criminality of his or her conduct.

Ark. Code Ann. § 5-2-312 (Repl. 2006). When the issue is raised, the circuit court follows

the statutory procedures for a forensic examination. Ark. Code Ann. § 5-2-305 (Supp. 2011).

On the basis of a forensic-examination report, and after a requested hearing, “the court may

enter judgment of acquittal on the ground of mental disease or defect” if, among other court


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findings, the court finds that “[a]t the time of the conduct charged, the defendant lacked

capacity as a result of mental disease or defect to conform his or her conduct to the

requirements of law or to appreciate the criminality of his or her conduct.” Ark. Code Ann.

§ 5-2-313(a)(2) (Repl. 2006). A defendant must prove an affirmative defense by a

preponderance of the evidence. Ark. Code Ann. § 5-1-111(d)(1) (Repl. 2006).

       Thus, under Arkansas Code Annotated section 5-2-313(a), the circuit court “may”

enter judgment of acquittal on the ground of mental disease or defect if the defendant lacked

capacity as a result of mental disease or defect to conform his or her conduct to the

requirements of the law or to appreciate the criminality of his or her conduct. That decision,

however, is within the circuit court’s discretion. Morgan v. State, 333 Ark. 294, 305, 971

S.W.2d 219, 224 (1998). Here, the circuit court was confronted with conflicting forensic

evaluations. While Faupel and Moneypenny found that Russell lacked capacity as a result of

mental disease or defect to conform his conduct to the requirements of the law or to

appreciate the criminality of his conduct, the court also had before it Dr. Diner’s opinion to

the contrary. The existence of conflicting proof and the consequent questions of fact that

arose from these conflicts supported the circuit court’s discretionary decision to deny Russell’s

motion for acquittal. See id. at 304–05, 971 S.W.2d at 224–25 (holding that the circuit court

did not abuse its discretion in denying a motion for acquittal when there are questions of fact

remaining concerning the defendant’s affirmative defense of mental disease or defect). Thus,

we hold that the circuit court did not abuse its discretion in denying Russell’s motion for

acquittal. While Russell further argues that the State was bound by Dr. Faupel’s initial


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evaluation, that argument was not preserved for appellate review, as the argument was not

presented to the circuit court. See, e.g., Gilliland v. State, 2010 Ark. 135, at 12, 361 S.W.3d

279, 286.

       For his second point on appeal, Russell contends that the circuit court erred in denying

his motion for a mistrial when the jury announced that it was deadlocked. The record shows

that after the jury had begun deliberations, it sent a series of notes to the circuit court. In the

last of these notes, which the circuit court received at 5:22 p.m., the jury wrote that it was

deadlocked, with one member of the jury voting to convict Russell of capital murder and

who would not agree to any lesser charge, with the other jurors in agreement to convict

Russell of first-degree murder. The jury wrote that there was “no changing of minds” and

asked if this constituted a “hung jury.” The court wrote back, asking, “Do you think that you

may be able to deliberate toward a verdict after a night of rest?” The court asked defense

counsel whether he had any objection to the court’s note, and Russell’s attorney stated, “No

objections to the question, Your Honor, but I would like to put on the record a motion for

mistrial.” The court denied the motion. The court went into recess at 5:41 p.m., pending the

return of the jury. At 6:06 p.m., the jury returned to the courtroom. The jury delivered a

verdict finding Russell guilty of capital murder.

       On appeal, Russell asserts that “[o]ver the objection of counsel for [Russell], the trial

judge invited the jury, effectively, to give up their weekend for this self-professed killer and

come back and work some more on Saturday.” He contends that the “prejudice here is clear,”

as within a few minutes, the jury, which was 11 to 1 for a lesser-included offense, came back


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with a unanimous verdict to convict Russell of capital murder.

       Russell, however, did not make this argument to the circuit court. Although he moved

for a mistrial, he did not state the basis for his mistrial motion. In order to preserve for

appellate review an argument that the circuit court erred in denying a motion for mistrial, the

motion must be specific enough to apprise the court of the particular error alleged. Dorn v.

State, 360 Ark. 1, 4, 199 S.W.3d 647, 649 (2004). Thus, the argument Russell now makes on

appeal was not preserved for appellate review.

       Finally, because Russell received a sentence of life imprisonment, in accordance with

Arkansas Supreme Court Rule 4-3(i) (2013), the record in this case has been examined for

objections, motions, and requests made by either party that were decided adversely to Russell.

No prejudicial error has been found.

       Affirmed.

       David O. Bowen; and Rickey H. Hicks, for appellant.

       Dustin McDaniel, Att’y Gen., by: LeaAnn J. Adams, Ass’t Att’y Gen., for appellee.




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