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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