Appeal succeeds in case of gun in man’s pocket.

FAYETTEVILLE — Someone with a loaded pistol concealed in his pocket doesn’t necessarily mean to use it as a weapon unlawfully, a split Arkansas Court of Appeals said Wednesday.

The appeals court ruling reversed a Fayetteville man’s misdemeanor conviction for carrying a weapon.

The court 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. Police said Pettry was being arrested on charges of public intoxication and disorderly conduct 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 convicted by Circuit Judge Mark Lindsay.

The appeals court judges reversed and dismissed the case, saying the state failed to prove Pettry intended to unlawfully use the handgun as a weapon against another person. Merely possessing a gun isn’t 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,” according to the opinion.

The court said the charge made sense only if the state was arguing that Pettry intended to use the gun against the police officers. There was 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 that an intoxicated Pettry complied with police demands in a nonthreatening manner, got into the patrol car without incident and eventually passed out in the car without further incident.

The state failed to prove the purpose element and failed to prove Pettry was about to “employ” the gun 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 he hadn’t filed a written request to prepare the case record with the district court clerk, failed to serve the written request to prosecutors and failed to file a certificate of service with the 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 overstepped 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.”