                                Cite as 2014 Ark. App. 357

                 ARKANSAS COURT OF APPEALS
                                       DIVISION IV
                                      No. CR-13-1022


ROY LEE RUSSELL                                   Opinion Delivered   June 4, 2014
                               APPELLANT
                                                  APPEAL FROM THE DESHA
V.                                                COUNTY CIRCUIT COURT
                                                  [NO. CR2012-10-1]

STATE OF ARKANSAS                                 HONORABLE SAM POPE, JUDGE
                                 APPELLEE
                                                  AFFIRMED


                              DAVID M. GLOVER, Judge


       Roy Lee Russell was charged by criminal information in Desha County Circuit Court

with three counts of kidnapping, one count of aggravated assault, three counts of rape, one

count of second-degree battery, and one count of being a felon in possession of a firearm. A

jury acquitted Russell of all counts except the second-degree-battery charge and being a felon

in possession of a firearm. Russell was sentenced as a habitual offender to fifteen years in

prison and fined $10,000 for the second-degree-battery conviction; he was sentenced to forty

years in prison and fined $15,000 for being a felon in possession of a firearm. The sentences

were ordered to be served consecutively. Russell now appeals, arguing that there was

insufficient evidence to convict him of second-degree battery and being a felon in possession

of a firearm when the jury acquitted him of aggravated assault, a charge that arose out of the

same set of facts and circumstances. We affirm.

       Russell frames his argument as a sufficiency argument; however, it is not a sufficiency
                                  Cite as 2014 Ark. App. 357

argument—it is an inconsistent-verdict argument. He asserts that his convictions for second-

degree battery and felon in possession of a firearm cannot stand because the jury did not also

convict him of aggravated assault. This argument was never made to the circuit court;

therefore, it is not preserved for appellate review. Fletcher v. State, 2014 Ark. App. 50 (holding

that appellant’s inconsistent-verdict argument was not preserved for appellate review when

that argument was never made to the circuit court after the jury returned its verdict or in a

post-trial motion). Even if this argument had been preserved, we would affirm. “A jury may

convict on some counts but not on others, and may convict in different degrees on some

counts, because of compassion or compromise, and not solely because there was insufficient

evidence of guilt.” Jordan v. State, 323 Ark. 628, 631, 917 S.W.2d 164, 165 (1996). “The

law is clear in that ‘a defendant may not attack his conviction on one count because it is

inconsistent with an acquittal on another count. Res judicata concepts are not applicable to

inconsistent verdicts; the jury is free to exercise its historic power of lenity if it believes that

a conviction on one count would provide sufficient punishment.’” Id. (quoting McVay v.

State, 312 Ark. 73, 77, 847 S.W.2d 28, 30 (1993)).

       Affirmed.
       GRUBER and WHITEAKER, JJ., agree.
       Joseph P. Mazzanti, III, for appellant.
       Dustin McDaniel, Att’y Gen., by: LeaAnn J. Adams, Ass’t Att’y Gen., and Richmond
Giles, Law Student Admitted to Practice Pursuant to Rule XV of the Rules Governing
Admission to the Bar of the Supreme Court under the supervision of Darnisa Evans Johnson,
Deputy Att’y Gen., for appellee.




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