                                Cite as 2015 Ark. App. 714

                ARKANSAS COURT OF APPEALS
                                      DIVISION IV
                                     No. CR-15-302


                                                Opinion Delivered   December 16, 2015

 EUGENE MCDANIEL III                    APPEAL FROM THE PULASKI
                              APPELLANT COUNTY CIRCUIT COURT,
                                        FIFTH DIVISION
 V.                                     [NOS. CR-2013-3038; CR-2010-06;
                                        CR-2010-176]
 STATE OF ARKANSAS
                                APPELLEE HONORABLE WENDELL GRIFFEN,
                                         JUDGE

                                                AFFIRMED


                          BRANDON J. HARRISON, Judge

       Eugene McDaniel III appeals his conviction for committing a terroristic act and the

revocation of his probation. He argues that an inconsistency in the jury’s verdicts shows

that the State failed to prove that he (1) committed a terroristic act and (2) violated the

conditions of his probation. We hold that his argument is not preserved and affirm.

       On 4 January 2010, McDaniel was charged with breaking or entering, theft of

property, and criminal mischief in case number CR-2010-06. On 13 January 2010, he

was charged with residential burglary and theft of property in case number CR-2010-176.

McDaniel entered a guilty plea in both cases and was sentenced to five years’ probation in

CR-2010-06 and five years’ probation in CR-2010-176.
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       On 19 September 2013, McDaniel was charged with the offenses of committing a

terroristic act, first-degree battery (two counts), and possession of a firearm by certain

persons. He was also charged with a firearm enhancement pursuant to Ark. Code Ann. §

16-90-120 (Repl. 2013). Also on 19 September 2013, the State filed a petition to revoke

McDaniel’s probation in CR-2010-176 based on his committing these new offenses. And

on 14 January 2014, the State filed a petition to revoke McDaniel’s probation in CR-

2010-06, also based on his committing these new offenses.

       A jury trial was held in August 2014, at which the State presented evidence that

McDaniel and several others were involved in an altercation with Anthony Parker at

Parker’s residence. This altercation resulted in McDaniel and two others shooting toward

Parker and his house; Parker sustained a number of gunshot wounds, and seven-year-old

Nyla Watson, the daughter of Parker’s girlfriend, was also shot in the foot. The jury

found McDaniel guilty of committing a terroristic act but not guilty of first-degree battery

with respect to Parker and Watson. 1 The jury also found that McDaniel did not employ a

firearm as a means of committing a terroristic act for purposes of the firearm enhancement.

       McDaniel was sentenced to fifteen years’ imprisonment for committing a terroristic

act. The circuit court also revoked his probation based on his commission of this crime

and sentenced him to three years’ imprisonment with three years’ suspended imposition of

sentence (SIS) in CR-2010-06 and five years’ imprisonment with five years’ SIS in CR-

2010-176. This appeal followed.



       1
        The sentencing order indicates that the offense of possession of firearms by certain
persons was severed.
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       For his first point on appeal, McDaniel argues that the State failed to prove that he

committed a terroristic act as evidenced by the jury’s inconsistent verdicts. A person

commits a terroristic act if, while not in the commission of a lawful act, the person shoots

at an occupiable structure with the purpose to cause injury to a person or damage to

property. Ark. Code Ann. § 5-13-310(a)(2) (Repl. 2013). McDaniel asserts that the State

failed to prove that he committed a terroristic act because the jury found that he did not

employ a firearm in committing a terroristic act, and an element of the crime is

“shoot[ing] at an occupiable structure.” He asserts that he “cannot be guilty of having

committed [a] terroristic act if he did not, beyond a reasonable doubt, employ a firearm to

commit the ‘shoots’ element of the definition of terroristic act.” In support, he provides a

lengthy block quote from United States v. Randolph, a Sixth Circuit Court of Appeals

decision, which reversed Randolph’s conviction for drug trafficking because the jury also

“found that the drugs ‘involved in’ the conspiracy were ‘none.’ This unanimous finding

negates an essential element of the charged drug conspiracy and is only susceptible to one

interpretation: the government failed to prove Randolph guilty of the charged drug

conspiracy beyond a reasonable doubt.” 2015 FED App. 0163P, at 12 (6th Cir.).

       In response, the State argues that 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 State also contends that, if

viewed as a sufficiency argument, then McDaniel failed to make this argument below, so

it is not preserved for our review.

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       In reply, McDaniel acknowledges that he did not raise this argument below, but he

asserts that the argument falls under one of the four exceptions outlined in Wicks v. State,

270 Ark. 781, 606 S.W.2d 366 (1980). In Wicks, the Arkansas Supreme Court presented

the following four narrow exceptions to the contemporaneous-objection requirement: (1)

when the circuit court, in a death-penalty case, fails to bring to the jury’s attention a

matter essential to its consideration of the death penalty itself; (2) when defense counsel

has no knowledge of the error and thus no opportunity to object; (3) when the error is so

flagrant and so highly prejudicial in character that the circuit court should intervene on its

own motion to correct the error; and (4) when the admission or exclusion of evidence

affects a defendant’s substantial rights. Thomas v. State, 370 Ark. 70, 257 S.W.3d 92

(2007).

       In this case, McDaniel contends that the third Wicks exception applies. He argues

that “a circuit court judge’s failure to intervene in the trial to secure a defendant’s right to

have the State prove its case beyond a reasonable doubt is structural error that an Arkansas

appellate court may address for the first time on direct appeal,” citing Anderson v. State,

353 Ark. 384, 108 S.W.3d 592 (2003). He also argues that this case is an “internally

inconsistent verdict” case, not an inconsistent-verdicts case; therefore, the case law

governing inconsistent verdicts does not apply.

       We hold that McDaniel’s argument is not preserved for our review because he

failed to raise it below. See Russell v. State, 2014 Ark. App. 357 (holding that appellant’s

inconsistent-verdict argument was not preserved for appellate review because it was never

made to the circuit court); Fletcher v. State, 2014 Ark. App. 50 (holding that appellant’s

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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 posttrial

motion). We disagree that this case falls under the third Wicks exception; our case law is

clear that Wicks presents only narrow exceptions that are to be rarely applied, and the third

Wicks exception has been applied only to cases in which a defendant’s fundamental right

to a trial by jury is at issue. See Anderson, supra. And whether one frames this case as an

inconsistent-verdict case or an internally-inconsistent-verdict case, the fact remains that no

argument on either basis was made to the circuit court. Because McDaniel has not

preserved his argument for our review, and because no Wicks exception applies, we affirm

his conviction.

       For his second point on appeal, McDaniel contends that because the State failed to

prove that he committed a terroristic act, it also failed to prove that he violated any law

punishable by imprisonment; therefore, the circuit court erred in revoking his probation.

He develops no argument on this point and instead cites only to his argument under Point

I.   Because we affirm McDaniel’s conviction, we also affirm the revocation of his

probation based on his committing a terroristic act, which demonstrates his violation of a

law punishable by imprisonment.

       Affirmed.

       KINARD and HOOFMAN, JJ., agree.

       Don Thompson, Deputy Pub. Def., by: Clint Miller, Deputy Pub. Def., for appellant.

       Leslie Rutledge, Att’y Gen., by: Evelyn D. Gomez, Ass’t Att’y Gen., for appellee.




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